Landlord and tenant–Action for possession against tenant on ground of alleged breach of contract not to do or permit anything which might be a nuisance to landlords or to tenants or occupiers of adjoining premises–Action dismissed by county court judge–Nuisance caused by over-persistent admirer of actress tenant–Persistent telephoning, use of entry telephone system and shouting from outside the premises–Meaning of ‘permit’–Means giving leave or not taking reasonable steps to prevent act which it is within one’s power to prevent–Tenant had installed an ‘Ansaphone,’ had disconnected entry telephone and had sought injunction and obtained undertaking to prevent shouting–Judge correct in holding that she did all that could reasonably be expected to abate nuisance–Appeal dismissed
This was an
appeal by the landlords, Commercial and General Administration Ltd, from a
decision of Judge Stucley at Bloomsbury and Marylebone County Court dismissing
an action for possession against a tenant, Sally Thomsett, alleging breach of a
covenant not to do or permit a nuisance etc on the demised premises.
J K Reynolds
(instructed by Michael Conn & Co) appeared on behalf of the appellants; C
Algar (instructed by P S Levy & Co) represented the respondent.
Giving the
first judgment at the invitation of Orr LJ, GEOFFREY LANE LJ said: This is an
appeal from an order of His Honour Judge Stucley delivered on July 19 1978
whereby he dismissed a claim for possession brought by the plaintiff company,
Commercial General Administration Ltd, against the defendant, a young lady
called Sally Thomsett. The basis of the claim was somewhat out of the ordinary.
It arises in this way. The defendant is occupant of a flat which is owned by
the plaintiff company. They let the flat to her originally in 1976 and over the
years the term was extended or fresh terms were granted until finally the
letting came to an end in June 1978. By the time the proceedings in the
Bloomsbury and Marylebone County Court took place it was agreed on all hands
that that term had come to an end.
in so far as they were relevant, of the agreement which she had earlier signed.
The claim
before the learned judge took a number of forms. There is only one of them with
which we are concerned on this appeal and that is the claim that the defendant
ought to be ordered to give up possession on the basis that she was in breach
of one of the clauses of the agreement; that was clause 2(3) which it is
necessary for me to read verbatim. It runs as follows:
The tenant
hereby agrees with the landlords as follows:
Not to do or
permit to be done on the premises anything which may be or become a nuisance or
annoyance to the landlords or to the tenants or occupiers of the adjoining
premises or which may be injurious or detrimental to the reputation of the
premises and the building in which they are situated and in particular but
without prejudice to the foregoing (a) not to play or permit to be played any
musical instrument or to allow any singing on the premises at any time or to
allow any wireless set or television set or gramophone or tape recorder to be
used on the premises between the hours of 11 pm and 9 am or at any time so as
to be a nuisance or annoyance to the other inhabitants of the said building,
(b) not to keep any animals, birds or other pets on the premises and (c) not to
use the premises or permit the same to be used for an illegal or immoral
purpose.
The complaint
made by the landlords was this. It seems that the defendant is by way of being
an actress or in some way connected with show business and it seems likewise
that a number of people were from time to time entertained by her at this flat.
Be that as it may, there was one man, by name Slade, who was more persistent in
his attentions to this young lady than the others with whom she was acquainted.
There is no doubt that–in the colloquial sense–he from time to time over the
months of this tenancy made himself a nuisance. He made himself a nuisance–I
repeat, in the colloquial sense–in a number of ways. First of all by
persistently ringing Miss Thomsett, the defendant, on the telephone whether she
was there or not, with the result that the adjoining tenants would be disturbed
by the continual ringing of Miss Thomsett’s telephone when she was not there,
particularly at night. Secondly, Mr Slade would persistently call on the
premises and persistently use the entry telephone system, whether that of Miss
Thomsett or of the other tenants in the building, in order to try to get in
touch with this young lady. That, too, was a great nuisance to the other
tenants. It was, no doubt, also a great nuisance to Miss Thomsett herself. The
third type of nuisance was this. Apparently there were parties from time to
time and a good deal more noise was caused than was necessary by those present.
On one occasion, at least, one of the guests–or a guest of a guest–became drunk
and it was necessary for Miss Thomsett to call the police to have this person
ejected. Finally, the other form of annoyance about which complaint was made
was that the man Slade, not content with ringing up on the telephone, and not
content with trying to use the entry telephone at the door, would stand outside
and shout, presumably to Miss Thomsett, thereby annoying the other occupants of
the premises.
It is said
that the learned judge was wrong in the conclusion to which he came. Wrong, Mr
Reynolds submits on behalf of the plaintiffs, in law and wrong in fact. It is
suggested that he was wrong in law in his definition of the word ‘permit’ which
appears in the clause to which I have already made reference. Mr Reynolds
submits to us that in these circumstances, and in the light of the words of
that clause, there is a burden on the tenant to take effective steps to stop
any nuisance if it is in the tenant’s power to do so.
The
authorities on which Mr Reynolds relies for the definition of the word ‘permit’
are twofold. First of all there is the case of AG v Tod Heatley
[1897] 1 Ch 560. When one comes to examine that case, one finds that it is
nothing to do with a covenant in a lease, but was a case which was dealing with
a public nuisance which had arisen on a piece of vacant land by reason of
persons putting filth and refuse on that land. All that case did was to examine
the duties of an occupier of that type of land vis-a-vis his liability
under the laws of public nuisance. That is not a case which assists us here.
The citation of that case overlooks the fact that we are dealing here with a
covenant and not with what amounts, or does not amount, to a public nuisance at
common law. We are not dealing with what an occupier is under a duty to do or
to prevent so far as public nuisance is concerned.
The second
case cited by Mr Reynolds in support of the proposition to be advanced was Sedleigh-Denfield
v O’Callaghan [1940] AC 880. Without, I hope, being disrespectful to the
arguments he courageously put forward before this court, it seems to me that
that case, like the former one, has nothing to do with this case and cannot
assist the court in the circumstances of the present case.
The matter
seems to me to be concluded, so far as the definition of ‘permit’ in these
circumstances is concerned, by a decision of this court in 1922, Berton
v Alliance Economic Investment Co [1922] 1 KB 742. The court consisted
of Bankes LJ, Atkin LJ and Younger LJ. As far as I have been able, in a very
brief reading of the case, to discover, all three learned judges were agreed.
At p 759 Atkin LJ set out a definition by which we are bound in a case which
was very similar on its facts and, so far as one can read, similar in the
wording of the covenant to the instant case. He said:
To my mind
the word ‘permit’ means one of two things, either to give leave for an act
which without that leave could not be legally done, or to abstain from taking
reasonable steps to prevent the act where it is within a man’s power to prevent
it.
It is the
second part with which we are concerned here.
What the
learned judge had to decide in this case was whether the plaintiffs, the burden
being on them, had succeeded in showing that the defendant had failed to take
reasonable steps to prevent the acts, it being within her power to prevent
them. The learned judge did not have that authority cited to him, but in fact,
if one examines his judgment, one finds that that was precisely the test that
he applied, and great credit to him for that. Having applied that test, as I
think correctly, can it be said that the learned judge was wrong in coming to
the conclusion to which he did come, that Miss Thomsett had taken all
reasonable steps that she could to stop these various types of activity? In order to upset the judge on a matter such
as this, it must be shown, as I see it, that there was no basis on which he
could properly have come to the conclusion which he did, namely that Miss
Thomsett had taken all reasonable steps to that end. What was it that she had
done? First of all, so far as the telephone
ringing was concerned, she had installed an ‘Ansaphone’ as it is called and
that, as the judge correctly found, had succeeded in preventing the incessant
ringing of the telephone when Miss Thomsett was not there. End of first
complaint. So far as the entry telephone was concerned, she had taken steps, by
means of disconnecting or breaking, to do the same to that, and to that extent
she had succeeded there. So far as the parties were concerned, on the occasion
when the drunken guest of a guest was making a nuisance of himself, she had
sent for the police and had him taken away. That was all that she could have
done.
That leaves us
with the problem of Mr Slade standing outside and shouting. The evidence on
this matter was very thin indeed. Notes of the judge make it clear that this
was not very deeply investigated, but it is plain from what appears in those
notes, and what appears in the learned judge’s judgment, that steps had been
taken by Miss Thomsett to gain legal advice and take action against Mr Slade by
way of an injunction to prevent this matter happening. The matter never
apparently reached a hearing because cross-undertakings were given. We do not
know what those cross-undertakings were. We do not know what undertakings Mr
Slade gave, although
gave, but the fact remains that she got undertakings which in the circumstances
were the equivalent of an injunction. Now it is suggested that she should have
gone further and that if, as appears to be the case, there was shouting or
other objectionable behaviour after the date of these cross-undertakings, she
should have taken steps to have had Slade committed for contempt of court, in
that he did not abide by his undertaking. That she did not do because, as she
told the judge, she was apparently advised not to.
Can it be said
that the judge was necessarily wrong in coming to the conclusion that what she
did was reasonable and that what she did was all that could reasonably have
been expected of her in order to abate this nuisance? Speaking for myself, it seems to me that the
judge was entirely justified in coming to that conclusion. It is a conclusion
to which I myself would have come had I been faced with the same problem. It
was, so far as one can judge from the notes of evidence, never even suggested
to this lady that she should have taken further proceedings endeavouring to get
this man committed for contempt or in some way enforcing the undertakings. The
burden lay fairly and squarely on the plaintiffs to prove their case. They did
not. I think that the judge was absolutely right in that conclusion.
There is only
one other matter which remains to be decided. It is suggested, and was
suggested, that the defendant was in breach of the covenant which I read in
that she gave interviews to certain newspapers in such terms that the value of
the premises was diminished by reason of things which she had done on the
premises. As a matter of fact, it is very doubtful whether any such detriment
could have been established, or any such potential detriment, on the evidence,
but there is, as Ormrod LJ pointed out in the course of argument, a more fatal
objection to that contention. The obligation was ‘not to permit to be done on
the premises anything which may’ and there was no evidence that any of these
interviews given to the newspapers were done on the premises. Indeed, the
suggestion is to the contrary. Consequently, on that simple ground, that
particular aspect of the argument fails.
That deals
with the points raised before us and, so far as I can see, despite the valiant
arguments of Mr Reynolds, there is nothing really on which he could
successfully base this appeal. I would accordingly dismiss it.
ORMROD and ORR
LJJ agreed.
The appeal
was dismissed with costs.
