Procedure — Costs — Order for payment of landlords’ costs out of legal aid fund — In judgments given de bene esse, without jurisdiction, at a hearing which should never have been held, in a case devoid of merits from which no appeal should have been advised, the Court of Appeal dealt with some matters concerning procedure and costs — Rent Act 1977, County Courts Act 1984, section 77(6), Legal Aid Act 1974, section 13(1) — ‘Purported’ appeal
court judge at a first hearing had made an order for possession and payment of
rent arrears against the tenant and had refused her application for adjournment
— At a subsequent hearing the tenant asked for leave to appeal against the
possession order and the judge pointed out that, because of section 77(6) of the
1984 Act, the tenant could not appeal against the possession order — The judge
then treated the application as one for leave to appeal against his refusal of
adjournment and he refused that application — The present appeal to the Court
of Appeal purported to be an appeal against that order — It was, however,
realised, after Kerr LJ had begun to give judgment, that leave to appeal
against the judge’s refusal was required and such leave had not been given —
However, Kerr LJ and Swinton Thomas J proceeded to give judgment de bene esse,
although they had no jurisdiction to hear the matter
although without legal merits, was a sad one — The tenant, who had lived in the
property for 18 years, was in poor financial circumstances — Divorced and not
at present receiving maintenance payments due from her former husband, earning
a little money as a school meals supervisor, she had run up £1,847 arrears of
rent by the date of the first hearing in the county court — Nothing appeared to
have been done to try to meet the rent liability — She had put forward a
counterclaim for some alleged inconvenience and damage to carpets and furniture
due to the defective state of the premises but had failed to substantiate the
claim
Appeal, although without jurisdiction, expressed the view that the county court
judge had been wholly right to refuse leave to appeal against his rejection of
adjournment — The application to the Court of Appeal should not have been
advised, or supported by legal aid — As far as legal aid was concerned, there
would be an order for costs in favour of the plaintiff landlords against the
legal aid fund, suspended for three months to enable the Law Society to appear
and contest the order if thought appropriate
The following
case is referred to in this report.
Joyce v King The Times July 13 1987
This
proceeding purported to be an appeal by the defendant tenant, Mrs S Treeweek,
against an order made by Judge Laurie at Bow County Court on March 1 1988
refusing leave to appeal against his refusal of an adjournment of proceedings
brought by the landlords for possession and arrears of rent. The landlords were
Aire Property Trust and the property concerned was 142 Third Avenue, Manor
Park, London E12.
Miss M Isles
(instructed by E Edwards Son & Noice) appeared on behalf of the appellant;
C Atkins (instructed by Gill & Co, of Ilford, Essex) represented the
respondents.
Giving
judgment, KERR LJ said: This purports to be an appeal by the defendant tenant
against an order made by His Honour Judge Laurie in the Bow County Court on
March 1 1988. On January 18 1988 the learned judge had made an order for
possession and payment of arrears of rent in favour of the plaintiff and he had
also refused the tenant’s application for an adjournment of the hearing of the
landlords’ claim. Miss Isles has represented the tenant throughout and — as she
said herself a few moments ago — obviously has little experience of cases of
this type. On March 1 she returned to the court and asked the learned judge for
leave to appeal against his order for possession. He then pointed out to her
that an order for possession made under the Rent Acts in circumstances such as
those of the present case is unappealable by virtue of section 77(6) of the
County Courts Act 1984. So he said that he would treat her application for
leave to appeal as an application for leave to appeal against his refusal of an
adjournment, and he refused that application.
However, it
appears that the tenant did not go out of possession
application for a stay of execution of the possession order. Woolf LJ was not
asked for leave to appeal, and his attention was also not drawn to section
77(6). He granted a stay of execution, but he was unaware — as we were until a
few moments ago — that leave to appeal from Judge Laurie’s refusal to grant an
adjournment on January 18 would also be required before the matter could
proceed at all. In the result it follows that we cannot hear this purported
appeal, since we have no jurisdiction to do so.
But since I
discovered this only just now, after having started to give judgment, I will
complete it de bene esse. I should add in that connection that what has
happened is in no way the fault of Mr Atkins on behalf of the respondent
landlords, since we found it unnecessary to call on him after we had heard Miss
Isles on the merits, albeit — as it now turns out — without jurisdiction. In
fairness to the defendant I will therefore briefly recite the history of the
matter and explain why in my view this is a case in which this court could not
have interfered in any event. Quite apart from the fact that Miss Isles clearly
overlooked and subsequently failed to understand the effect of section 77(6),
this is a case in which no appeal should ever have been advised and which
should never have been supported by legal aid.
Having said
that, it is undoubtedly a sad case, but unfortunately by no means uncommon,
where, with the best will in the world, courts cannot assist tenants resisting
claims for possession.
This tenant
appears to be divorced. She has lived in this property for some 18 years;
presumably it was her matrimonial home. We are told that she is in her 40s;
that she has two children of 14 and 16 and is dependent upon maintenance
payments from her former husband, which apparently she has not been getting.
She is also dependent upon such small sums as she can earn by doing a job as a
school meals supervisor.
The property
is 142 Third Avenue, Manor Park, London E12. The weekly rent now stands at
£28.83, having been reviewed in 1984. On July 27 1987 the landlords gave notice
to quit for non-payment of rent, some 49 weeks’ rent being then overdue.
Nothing
happened, and these proceedings were begun on November 10 1987, claiming some
£1,415 for rent arrears and possession. The tenant consulted solicitors; a
formal defence was put in on December 10 1987, in which the arrears were
admitted and there was a note that the tenant wished to rely on 18 years’
occupation of the premises and regular payments of rent until what she called
her ‘present difficulties’. The note went on to say that a full defence would
follow once an emergency legal aid certificate had been granted. That was
granted and was available to the tenant’s solicitors on January 7 1988.
As I have
said, the matter then came before His Honour Judge Laurie on January 18 1988,
when there had clearly been sufficient time to take instructions as to the
possibility of any defence or counterclaim which might affect the order for possession
which was claimed. Miss Isles appeared for the tenant and Mr Timothy Walker
appeared for the landlords. We have a note signed by both of them as to what
took place, since the judge found it unnecessary to give a full judgment on
that occasion.
He was
informed of the history of the tenancy and of the arrears, which by then were
some £1,847. Unfortunately, nothing appears to have been done by the tenant to
save up or to put money aside, and no explanation was offered, other than her
obviously very straitened circumstances, for the failure to pay any rent over a
period which by then amounted to some 66 weeks. All that was said by Miss Isles
was that the tenant had a small counterclaim for alleged inconvenience and
damage to some carpets and furniture in respect of an earlier period prior to
November 1986 when these premises had been in a bad state of repair.
What had
happend in that regard was that in February 1985 a notice under the Housing Act
had been served on the plaintiffs specifying a substantial number of repairs
which required to be carried out to the property. Those repairs were done and
completed by November 1986. During that time rent was withheld; some was paid
subsequently, but by no means the full amount; and when notice to quit was given
on July 27 1987 the rent was 49 weeks in arrears without any explanation other
than the tenant’s straitened circumstances.
These matters
were put before His Honour Judge Laurie on January 18 as he explains in a full
judgment which he gave on March 1. As already explained, he did so to explain
his reasons for refusing leave to appeal against his refusal to grant an
adjournment on January 18, since no other avenue of appeal was open. The
application for an adjournment had been made by Miss Isles solely on the ground
that the tenant wished to present a counterclaim in respect of damages for
inconvenience and damage to her effects, which she claimed had been suffered by
her during the period of the repairs prior to November 1986. Not surprisingly,
that was a matter which did not impress the judge; he refused the adjournment
and made an order for possession with a stay of 28 days.
When the
matter came back to him on March 1 the tenant’s proposed counterclaim had been
expanded into a lengthy draft, in which the damages claimed were raised to a
level of £2,000, obviously in an attempt to show that the tenant might be able
to recover more than the amount of rent then outstanding.
The judge said
that he was going to refuse the application, but he asked counsel to make a
careful note of his judgment in case the defendant saw fit to pursue an appeal.
He said that in the first paragraph of the note that we have. He then reviewed
the whole history, and in regard to the proposed counterclaim he said:
The offer
that she was prepared to make was current rent and £12 per week of the arrears
and she wanted to put in a counterclaim for damages to her furniture caused by
the defective state of the premises up to the middle of 1987–
that should in
fact be ‘up to November 1986’.
When I
inquired whether that claim had yet been put forward and how much it was for I
was told it had not and the only figure that could be put forward was that
needed to replace a bed for £100. There had been damage to two carpets but she
could not give particulars of that damage.
The judge was
there summarising what had been put before him on January 18.
Then he said
that he had been referred to Joyce v King, which was decided in
this court on July 6 1987 and reported in The Times newspaper; we have
not been supplied with the date on which it was published, but it appeared
under the heading ‘Adjournment Required for Justice’*. One only has to glance
at that case to see that it affords no assistance whatever to anyone seeking to
contend that the judge was wrong in refusing leave to appeal against his order
declining an adjournment. The first sentence of the headnote reads:
Whether or
not a litigant should be granted an adjournment of his hearing was essentially
a matter of discretion for the judge and the Court of Appeal should only
interfere if the judge was wholly wrong. But where it was clear that it would
not be possible for a litigant to obtain justice without an adjournment then,
regardless of inconvenience thereby caused, such an order was to be made.
*Editor’s
note: Published on July 13 1987.
In that case,
in which the facts were similar to the present case, and which also concerned a
claim for possession, there had been no time to get legal aid for the tenant
and therefore she was without an expert witness, a surveyor, on the date of the
hearing. In those extreme circumstances the refusal of the recorder to grant an
adjournment was reversed by this court.
But that bears
no resemblance to the present case. In this case there was time to put the
proposed counterclaim before the judge; it was in fact put before the judge,
subject only to a much lower figure, no doubt more realistic than the one which
has been produced since; and in the present case the counterclaim related to a
period of disrepair which had ended well over a year before the present
proceedings, pending which no such claim had ever been put forward.
In my view,
the judge was wholly right in standing by his original decision in this case.
He said at the end of the note of his judgment given on March 1:
I am always
reluctant to shut anyone out who wants an adjournment to put his case. In the
light of the facts as they were put to me on January 18 1988
an adjournment
would have
been unjustifiable for the parties and an injustice to the plaintiffs.
In the light of
what was put before him on March 1, the position was no different. In my view,
he was quite right to refuse leave to appeal against his refusal of an
adjournment, and with all due respect to Miss Isles she should never have
advised that the case should be brought here in any form.
Accordingly,
this court cannot interfere with any of the orders made by His Honour Judge
Laurie.
There remains
the question of costs. As already mentioned, the defendant tenant has come to
this court with the assistance of legal
order for costs against the legal aid fund pursuant to section 13(1) of the
Legal Aid Act 1974. Such orders are frequently made on a nisi basis as a
matter of course when legally aided appeals are unsuccessful, giving the
opportunity to the Law Society to appear to contest the order if they desire to
do so. In the present case there can be no doubt that this must be the correct
course to take, quite apart from what may be the general practice on which we
have heard no argument. The true position is that the hearing this morning
should never have taken place. In the absence of a successful application
against Judge Laurie’s refusal to grant an adjournment on January 18 and —
presumably — an extension of time, neither of which has ever been applied for
or granted, there was no basis for bringing the matter before this court. And,
on the merits, such applications were obviously hopeless and should never have
been supported by advice, let alone legal aid. In these circumstances there
will be an order for costs in favour of the plaintiffs against the legal aid
fund, suspended for three months to enable the Law Society to appear and
contest the propriety of the order if it considers it appropriate to do so.
Agreeing,
SWINTON THOMAS J said: It seems to me clear that the purported appeal against
the learned judge’s refusal to grant an adjournment is an interlocutory appeal,
in respect of which leave to appeal is required. That seems to me to be clear
from the provisions of section 77 of the County Courts Act 1984 and Ord 59 of
the Rules of the Supreme Court. In this case no leave has been granted.
As to the
substantive order, section 77(6)(d) of the County Courts Act 1984
provides that there can be no appeal against the substantive order made by the
learned judge.
As to the
merits of this case, I agree entirely with everything that has fallen from Kerr
LJ, and accordingly I, too, would dismiss the appeal.
The purported
appeal was dismissed; costs of plaintiff/respondent to be paid out of legal aid
fund, such order to be suspended for three months to allow Law Society to make
representation; order made for possession within six weeks from date of this
decision.
