Landlord and tenant — Incorrect procedure adopted following interim order for payment of arrears of rent in proceedings by landlords claiming possession and other relief against the tenant and other defendants — The interim order had not been fully complied with and the county court judge whose decision gave rise to the present appeal ordered that, unless the sum due, amounting to £13,960, was paid, the defendants’ defence should be struck out — Defendants appealed, claiming to have this order set aside under the provisions of section 50 of the County Courts Act 1984, Ord 13, r 12 of the County Court Rules and under RSC Ord 45 — Held ‘with considerable regret’ that the order must be quashed — The judge was not entitled in the circumstances to make an order for the defence to be struck out under the inherent jurisdiction of the court — The correct procedure for the plaintiffs was not to seek to have the defence struck out but to use the recognised procedure to enforce the interim order for payments — RSC Ord 45, which was applicable, through CCR Ord 13, r 12 and RSC Ord 29, r 10, provided for the way in which interim orders were to be enforced — Appeal allowed
No cases are
referred to in this report.
This was an
appeal by defendants Abdul Aziz Abdul Rahim and others against an order made by
Judge Deborah Rowlands, conditionally striking out the defendants’ defence in
proceedings begun by the landlords, H H Property Co Ltd, before the late Judge
Curtis-Raleigh, who had made an interim order for payment of £13,960 to the
landlords on account of arrears.
G-Zelin
(instructed by G Lebor & Co) appeared on behalf of the appellants; A R
Connerty (instructed by Radcliffes & Co) represented the respondents.
Giving
judgment, LAWTON LJ said: This case comes before the court, first as an
application by the first and second defendants for leave to appeal against an
order made by Her Honour Judge Deborah Rowlands on February 4 1986 whereby she
ordered that unless the sum of £13,960, due under an interim order made earlier
by the late Judge Curtis-Raleigh, was paid, the defendants’ defence should be
struck out. We have granted leave to appeal and, having granted leave, have
gone on to consider the merits. (I put the word ‘merits’ mentally in inverted
commas.)
The plaintiffs
are the owners of property at Porchester Court, Porchester Gardens, London W2.
They claim that they are entitled to possession of premises known as Flat 3 and
3A at that address. They say that by a lease made on July 13 1976 between the
plaintiffs as lessors and the first defendant as lessee, the premises were
demised to the first defendant for a term of 10 years from December 25 1975 at
a
things, to pay the lessor on demand each year of the said term by way of
additional rent an annual service charge (called in the lease ‘the service
charge’). The lease contained a proviso for re-entry and forfeiture in the
event of the lessee failing to observe and perform any of the lessee’s
covenants.
The first
defendant is in arrears with the said rent. By the time the summons was issued,
the arrears are alleged to amount to no less than £6,179. It is also said by
the plaintiffs that the first defendant does not occupy the premises and that
he has allowed the second defendant to do so.
The defence
puts in issue the various allegations made by the plaintiffs and in particular
alleges that there have been breaches of covenant by the plaintiffs, breaches
which are not uncommonly alleged in this class of case. There is also a
statutory defence under the provisions of section 91A of the Housing Finance
Act 1972, the allegation being that some of the service charges, which are to
be treated as if they were rent, were not previously discussed with the tenant;
and, inevitably, there is a counterclaim for damages for breach of covenant.
At a
preliminary hearing held in October 1984 His Honour Judge Curtis-Raleigh made
an order as follows: ‘That the defendants do pay to the plaintiffs an interim
payment of £14,000 plus £80 per week from October 31 1984.’
The defendants
have not complied with that order. We have been told today by Mr Zelin that
something like £5,000 has been paid, but there is clearly outstanding a
considerable amount of money. It is understandable in those circumstances that,
when the matter came before Her Honour Judge Rowlands, she was concerned about
the fact that there had clearly been a defiance of the court’s order. No
explanation appears to have been given to her and none has been given to this
court as to why the defendants are in breach of the order.
It is relevant
to point out that there has been no attempt whatsoever to appeal the first
order. In those circumstances it is with some courage that the defendants have
appeared in this court, asking that the court intervene on their behalf, when
in fact they are in clear breach of an order made as long ago as October 1984.
The defendants
claim to be entitled to have this order set aside under the provisions of
section 50 of the County Court Act 1984, the terms of Ord 13, r 12 of the
County Court Rules, and RSC Ord 45 r 1. Section 50 of the County Courts Act
1984 envisages that the county court may make orders for interim payments. In
my judgment, subsection (2) of that section also envisages that a defence put
forward by a defendant will be in existence when the matter is finally decided
by the court. Under subsection (2) a defendant who has overpaid pursuant to an
interim payment may recover when the matter is finally tried. Ord 13, r 12 of
the County Court Rules provides by sub-rule (2) that RSC Ord 29, r 10 shall
apply to the county court. RSC Ord 29, r 10 is the order which provides for the
making of interim payments. Ord 45 provides for the way orders for interim
payments are to be enforced and is in these terms:
Subject to
the provisions of these rules, a judgment or order for the payment of money,
not being a judgment or order for the payment of money into court, may be
enforced by one or more of the following means, that is to say —
There are then
set out a number of ways which amount to how orders of courts are to be
executed.
Mr Zelin says
(correctly in my judgment) that in the circumstances of this case the
plaintiffs’ remedy was not to come to the court and ask for the defence to be
struck out but to use the machinery of the law to enforce the interim payments.
It seems to me impossible to accept Mr Connerty’s argument that the judge was
entitled to make the order she did under the inherent jurisdiction of the
court. It was not an order for conditional leave to defend; it was an order for
the payment of rent, which was due. Had the judge given judgment for the
plaintiffs, then the only way in which the plaintiffs could have enforced it
was by one of the ways set out in Ord 45, r 1. In my judgment, having regard to
the provisions of Ord 45, there is no room for the inherent jurisdiction of the
court to be called in aid. Striking out the defence runs counter to the
intention of section 50 (2) of the County Courts Act.
It is therefore
with considerable regret that I have come to the conclusion that the order of
the learned judge must be quashed and the appeal allowed.
STEPHEN BROWN
LJ agreed and did not add anything.
The appeal
was allowed: no order was made as to costs.
