Forfeiture — County Court Registrar’s order — Claim for relief in High Court — Jurisdiction unsuccessfully challenged — Relief granted
This was a claim by Mr Thomas Golding against his landlords, Cavendish Holdings, Ltd, of Charles Square, London, N, for relief from forfeiture of the lease under which he holds 159, Lower Mortlake Road, Richmond, Surrey, upon such terms as the Court deemed just.
Mr Peter Dow (instructed by Messrs Anthony Gane & Co) appeared for the plaintiff, and Mr Montague Waters (instructed by Mr Nigel Wallis) represented the defendants.
The circumstances were that the defendants, freeholders of the property, on May 7, 1958, at Wandsworth County Court, obtained from the Registrar judgment against the plaintiff for £15 arrears of rent and costs to be paid within one month. In default of payment, the plaintiff was ordered to give up possession. The plaintiff failed to pay and a warrant of execution was issued for payment and possession. The plaintiff paid the arrears and costs into Court on June 30, 1958. In November, 1958, the defendants, acting on the warrant, retook possession of the premises. They pleaded that on July 9, 1958, an application by the plaintiff for suspension of the warrant of execution for possession was dismissed, with costs, by the Registrar of the County Court. On August 8, 1958, the plaintiff gave notice of intention to apply to the judge of the County Court on October 20, 1958, for an order setting aside the Registrar’s judgment of May 7, confined to the order for possession, and giving him relief from forfeiture of his interest in the property. Just prior to the hearing, the plaintiff withdrew his application. The net annual value of the premises for rating was £28. In the circumstances and by reason of the provisions of section 180 of the County Courts Act, 1934, as amended by the First Schedule to the County Courts Act, 1955, the High Court had no jurisdiction to entertain the plaintiff’s claim; alternatively, it would not be just and equitable to give the plaintiff the relief for which he asked.
Lloyd-Jacob, J, giving judgment on the defendants’ assertion that the Court had no jurisdiction to entertain the plaintiff’s claim, said that he had been invited to deal with the point on the assumption that that the plaintiff was entitled to relief. It was the fact that notwithstanding the issue of the writ in the present action, and within four weeks thereafter, the landlords instructed the bailiffs to enforce the warrant of execution which had been issued in the County Court in June, 10 days before the whole amount of the debt and costs had been paid into Court, and in consequence the tenant was evicted from the premises, which had since stood empty. It was said that having regard to the circumstances of the case the High Court was not in a position to entertain the application of the tenant for relief, however meritorious it might be. That point was said to have been made plain by the legislature in the terms in which section 180 of the County Courts Act, 1934, was framed. It was said that by reason of the language of section 180(1)(c), and, in particular, the provision ‘so long as the order remains unreversed the lessee shall be barred from all relief,’ the legislature intended to deprive poor people who dwelt in properties of low rateable value of that right to relief which had for generations been regarded by equity as available to every tenant, and which was intended to underline the fact that the provision for re-entry in accordance with the law was intended only to operate as a security to the landlord to recover his rent.
The present action was an independent action brought by the plaintiff for relief from forfeiture, and that that course was open to the plaintiff was, in his (Lloyd-Jacob, J’s) judgment, amply established by the provisions of section 146 of the Law of Property Act, 1925, subsection 2, which provided:
Where a lessor is proceeding by action or otherwise to enforce such a right of re-entry or forfeiture the lessee may in the lessor’s action if any or in any action brought by himself apply to the Court for relief.
The 1934 Act was part of a system of legislation which had particularly re-stated the right of a tenant to commence independent proceedings for the purpose of securing relief, and it was proper, in his (his Lordship’s) judgment, to construe section 180 — that part of it which expressed that the lessee should be deprived of all relief unless and until a certain step had been taken — as indicating a procedural matter. The section was not expressing any such plain direction that it could be construed as disentitling the plaintiff to the relief he now sought; there was nothing in the section which denied him that right, and, accordingly, the preliminary point as to the High Court’s jurisdiction must be decided in his favour.
Giving judgment on the plaintiff’s claim to relief, Lloyd-Jacob, J, said that he had seen him in the witness box and was satisfied that he had given accurate evidence. It appeared that the plaintiff did not receive a demand for payment of his ground rent — £5 per annum — from his landlords during the three years immediately preceding his eviction, although it was said that communications were sent to him. When proceedings for the recovery of the £15 arrears were taken he was unable to find the money out of his own resources. He eventually obtained from a slate club sufficient to pay the debt and costs, but not until 10 days after the expiry of the 28 days given him by the Registrar for payment. He discharged his liability by making a payment into court and the money so paid in was taken out by the defendants. The warrant of execution was still outstanding and after unavailing efforts by the plaintiff to have it nullified he started the present proceedings. Despite the issue of the writ the defendants instructed bailiffs to take possession of his house and since then the plaintiff had lived with his wife and three children in two rooms in the greatest discomfort, while his house had remained unoccupied and deteriorating.
He (the judge) could find no conceivable reason for saying that the plaintiff had behaved in any improper way so as to deprive himself of the assistance of the Court. He had adequately explained the reasons for his default and he was entitled to the relief he sought. Although he had not met his financial obligation in full, the defendants had deliberately sought, by eviction a few days after receiving the plaintiff’s statement of claim and by their contention |page:579| that the High Court had no jurisdiction, to implement the provisions of the Registrar’s order which to their knowledge had only been intended to secure the effective discharge of the plaintiff’s monetary obligation. Their action was inequitable and their contention erroneous in law; it would be grossly unfair if the plaintiff had to meet the expense arising therefrom. If any penalty were needed, he had already paid it for every day of his default.
The plaintiff would be relieved of forfeiture of the premises comprised in the lease, and possession must be restored to him. The plaintiff must pay the defendants’ costs of the action up to the initial delivery of his statement of claim, and the defendants must pay the plaintiff’s costs of the action after that date. There would be a set-off, as it was clear that the balance of costs would have to be paid by the defendants.
