Landlord and tenant — Whether Crown (the Department of Transport being the Crown in this context) was bound as landlord by sections 32 and 33 of the Housing Act 1961 (now replaced as a result of the consolidation of housing legislation by sections 11-16 of the Landlord and Tenant Act 1985) — The present issue arose out of proceedings brought by the department as plaintiffs against the defendant, the department’s tenant, for arrears of rent and possession — On an application for summary judgment the defendant was given leave to defend and the matter transferred to the county court judge — The judge struck out a number of paragraphs of the defendant’s defence as disclosing no reasonable cause of action, including material relating to the alleged application to the tenancy of sections 32 and 33 of the 1961 Act — The only issue before the Court of Appeal was whether the Crown as represented by the department was bound by the obligations placed on landlords of short leases by these sections — It was submitted on behalf of the appellant tenant that the general rule that the Crown is not bound by a statute in the absence of express words or necessary implication was subject to an exception mentioned in the Magdalen College Case (1615), namely, where the statute was enacted to suppress a wrong — It was suggested that the object of sections 32 and 33 was to suppress a wrong — Held, rejecting this submission, that the principle stated in the Magdalen College Case was far too wide to be of general assistance; that its reliability as a guide was disposed of in Bombay Province v Bombay Municipal Corporation; and that in the comparable context of the Rent Acts it was established (until the position was partly altered by legislation) that the Acts did not bind the Crown — Accordingly the judge acted correctly in striking out the relevant paragraphs in the defence — Appeal dismissed — Judge’s comments on documents presented to the court
This was an
appeal by Dimitri Egoroff, the defendant, from the decision of Deputy Judge
Sumner, at Folkestone County Court, striking out parts of the defendant’s
defence in an action against him as tenant by the Department of Transport, as
landlord, for arrears of rent and possession of Frogholt House, Frogholt, Kent.
Edward Cousins
(instructed by S Rutter & Co) appeared on behalf of the appellant; Nigel
Pleming (instructed by the Treasury Solicitor) represented the respondent
department.
Giving
judgment, PARKER LJ said: This is an appeal by leave of Nourse LJ from a
decision of His Honour Deputy Judge Sumner made on July 17 1985 striking out
certain parts of the defendant’s defence in an action brought against him for
arrears of rent and possession in respect of a property known as Frogholt
House, Frogholt, in the county of Kent. The premises were let by the
plaintiffs, who are the Department of Transport and are for present purposes to
be regarded as ‘the Crown’, under an agreement dated February 26 1980. The
tenancy was for a term of one month from March 1 1980 and thereafter from month
to month, being terminable on notice. The action was started by a specially
endorsed writ in the High Court and an application for Order 14 judgment was
made. Leave to defend was given and the matter was then transferred to the
county court.
By his defence
the defendant pleaded as follows. Para 1 of the particulars of claim (which was
the tenancy) is admitted, and it is averred that by virtue of the tenancy being
a tenancy from month to month the provisions of sections 32 and 33 of the
Housing Act 1961* apply thereto. Further, by clause 3 of the tenancy agreement
it is provided that the defendant paying the said rent and performing and
observing all his obligations under the agreement may quietly enjoy the
property during the tenancy without lawful interruption by the plaintiff or any
person rightfully claiming through or under him.
*Editor’s
note: These provisions are now to be found in sections 11-16 of the Landlord
and Tenant Act 1985, which came into operation on April 1 1986.
Paras 3, 4 and
5 of the defence contain admissions of paras 2, 4 and 5 of the writ and a
non-admission as to para 3. Para 6 of the defence then proceeds as follows:
By reason of
the matters particularised hereinafter it is averred that the plaintiff is in
breach of the said implied covenant pleaded in Paragraph 1 hereof and/or in
breach of the said covenant for quiet enjoyment pleaded in Paragraph 2 hereof,
whereby the plaintiff has suffered loss and damage.
7. Further or
alternatively, it is averred that the plaintiff has negligently caused and/or
suffered and/or permitted the demised premises to remain and/or fall into a
state of disrepair whereby the plaintiff has suffered loss and damage.
There follow
particulars of breach of covenant and/or negligence all of which relate to
alleged disrepairs or failure to repair the premises which were let under the
tenancy. It is then said that the defendant has suffered loss and damage
amounting in total to £68,560. The counterclaim is based on the same
allegations as are set out in the defence.
The order
which was made was that the words ‘and it is averred that by virtue of the
tenancy being a tenancy from month to month, the provisions of sections 32 and
33 of the Housing Act apply thereto’ in para 1 of the defence, and the whole of
paras 2, 6, 7, 8, 9 and 11 of the defence, be struck out on the ground that
they disclose no reasonable defence, and also that the counterclaim be struck
out on the ground that it discloses no reasonable cause of action.
It will be
seen that that pleading raises three matters. First, an implied covenant
arising under sections 32 and 33 of the Housing Act. Second, an alleged breach
by non-repair of a covenant of quiet enjoyment. Third, negligence in failure to
repair. There is no allegation in that pleading that there was a contractually
implied term to repair the premises. The plaintiffs applied to strike out the
paragraphs which were ultimately struck out on the ground that they disclosed
no reasonable cause of action or were frivolous and vexatious and an abuse of
the process of the court.
On this appeal
the only point arising is whether the plaintiffs are bound by sections 32 and
33 of the Housing Act 1961. Mr Cousins included in his skeleton argument
contentions concerning the existence of an implied contractual term, but that
does not now arise. Since the offending paragraphs were struck out, the
plaintiffs have applied for and obtained leave to deliver an amended defence
and counterclaim in which an allegation with regard to an implied contractual
term is made, and they are free to argue that in the county court without
further relief from us. The matter is therefore confined to the single point,
whether the Crown is bound by sections 32 and 33.
Before dealing
with that point, however, I should mention that the documents put before this
court are some 180 or more, and the copying of those documents appears to me to
have been a wholly unnecessary expense. For the purposes of the determination
of this appeal, nothing is necessary other than the writ, the defence, the
tenancy agreement itself and the judgment below. Quite apart from that, it is
to be observed that the bundle does not comply with the practice direction
which appears at p 624 of the Supreme Court Practice, which requires a
master bundle to be prepared where the documents, apart from pleadings,
comprise more than 100 pages. Had attention been paid to that practice
direction, it would at once have become apparent that the only documents required
were those which I have already listed.
Returning to
the point in issue, it is common ground that a statute does not bind the Crown
save by express words or necessary implication. Mr Cousins concedes that there
are no express words binding the Crown and that there are no words in the
statute itself which raise the shadow of an implication, let alone a necessary
implication, that the Crown was intended to be bound. He founds himself wholly
on two propositions. First, that there are certain classes of statutes which
always bind the Crown, and in that connection he relies on the Magdalen
College Case (1615) 11 Co Rep 66b. The classes of statute which are said to
bind the Crown include, according to that case, statutes which are made to
suppress a wrong. Mr Cousins submits that this Act was an Act made to suppress
a wrong.
As to the
first proposition, the classification in the Magdalen College Case is,
in my view, far too wide to be of general assistance, and is anyhow wholly
disposed of as any sort of reliable guide by the decision in Bombay Province
v Bombay Municipal Corporation [1947] AC 58 at pp 61 and 62. Reference
to the unreliability and outdatedness of the Magdalen College
classification may also be found in Wade on Administrative Law, 5th ed,
p 715, and also in a number of other places including vol 27 of Halsbury’s
Laws of England. But even if that classification stood, there can, in my
view, be no doubt that sections 32 and 33 of the Housing Act do not come within
the classification.
It is submitted
by Mr Cousins that the sections were to suppress a wrong. In one sense they
were. The sense in which they were is that it was recognised by Parliament that
a situation which was socially undesirable required correction for the public
good. Precisely the same consideration applies to the Rent Acts, which also
dealt with a situation which it was considered was socially undesirable and
required correction for the public good. The Rent Acts in no less than five
cases and possibly more, starting with Clark v Downes (1931) 145
LT 20, have consistently been held not to bind the Crown. Mr Cousins submits
that there is a distinction between the Rent Acts and sections 32 and 33 of the
Housing Act, a distinction which for my part I found difficult to follow. But,
as I understood it, it was submitted that the Rent Acts applied in personam
whereas the sections here under consideration apply to the premises. That
submission is, in my view, without foundation. Both Acts are dealing with
premises and it is a truism to say that the Rent Acts apply in rem.
There being,
as I see it, no relevant distinction between the two sets of provisions, and in
the light of what is said in the Bombay case, to which I have already
referred, it appears to me that the test must be either an examination of the
wording of the Act or in certain specific cases a demonstration that the
purpose of the sections would be wholly frustrated unless the Crown were bound.
That might raise a necessary implication outside the wording of the Act. But
unless the matter can be taken that far, and in this case it certainly cannot,
it does not seem to me that an Act of this sort can possibly be said to bind
the Crown. For those reasons, I am of the view that the learned deputy judge
was wholly correct in striking out the paragraphs which he did strike out, and
I would dismiss this appeal.
SIR GEORGE
WALLER agreed and did not add anything.
The appeal
was dismissed with costs.
