Housing Act 1988 — Assured tenancy — Whether notice seeking possession under section 8 of the Housing Act 1988 was in prescribed form by reason of failing to provide the full text of each ground for possession relied upon
The defendant
held a monthly periodic tenancy of Flat 25, 1 Waltons Parade, Preston, at a
monthly rent of £160, the tenancy being an assured tenancy within section 1 of
the Housing Act 1988. On July 30 1992 the plaintiff served a notice seeking
possession purportedly under section 8 of the Act, stating that he intended to
seek possession on grounds 8, 10, 11, 12, 13 and 14 of Schedule 2 to the Act.
On a separate sheet the plaintiff stated, inter alia, ‘the landlord
intends to seek possession . . . Ground 8. At least three months rent is
unpaid’. In proceedings for possession begun on August 18 1992 the plaintiff
claimed possession of the flat together with mesne profits and arrears of rent.
At the hearing on October 2 1992 counsel for the defendant, who did not appear
at the appeal, accepted that there was a prima facie case made out under
ground 8 because the defendant accepted that the rent had not been paid, but
that the defendant wished to contend that because of the state of the premises,
she was entitled to a reduction of rent by way of set-off. The recorder made an
order for possession in 28 days. The defendant appealed, contending that the
recorder had no jurisdiction to try the application for possession because the
plaintiff had not served a notice complying with section 8 in that his notice
failed to provide the full text of each ground for possession relied upon and
the notice was not in the prescribed form. Further, the recorder had improperly
exercised his discretion in refusing an adjournment to permit the defendant to
raise her claims to a set-off against the rent. By a respondent’s notice the
plaintiff contended that the defendant, not having raised the point as to the
validity of the notice at the hearing, was estopped from raising that issue on
appeal.
it did not specify ground 8. The ground in Schedule 2 may validly be ‘specified
in the notice’ as required by Parliament, in words different from those in
which the ground is set out in the schedule, provided that the words used set
out fully the substance of the ground so that the notice is adequate to achieve
the legislative purpose of the provision. That purpose is to give to the tenant
the information which the provision requires to be given in the notice to
enable the tenant to consider what she should do and, with or without advice,
to do that which is in her power and which will best protect her against the
loss of her home. The notice did not specify the ground by the words: ‘at least
three months rent is unpaid’ because the ground which must be proved includes
the requirement that ‘both at the date of the service of the notice . . . and
the date of the hearing . . . at least . . . three months rent is unpaid and .
. . rent means rent lawfully due from the tenant’.
discretion to allow a party to raise a point on appeal which has not been
raised in the court below. The facts relevant to the validity of the notice
were before the court. The defendant was not estopped from raising the point.
The following
cases are referred to in this report.
Barton v Fincham [1921] 2 KB 29
McCamley v Cammell Laird Shipbuilders Ltd [1990] 1 WLR 963; [1990] 1
All ER 854, CA
Morrow v Nadeem [1986] 1 WLR 1381; [1987] 1 All ER 237; (1986) 53
P&CR 203; [1986] 2 EGLR 73; 279 EG 1083, CA
Tegerdine v Brooks (1977) 36 P&CR 261; [1978] EGD 49; 245 EG 51,
[1978] 1 EGLR 33, CA
Torridge
District Council v Jones (1985) 18 HLR 107;
[1985] 2 EGLR 54; 276 EG 1253, CA
Wandsworth
London Borough Council v Fadayomi [1987] 1
WLR 1473; [1987] 3 All ER 474; (1987) 86 LGR 176, CA
Wilson v Liverpool Corporation [1971] 1 WLR 302; [1971] 1 All ER
628; (1971) 22 P&CR 282; [1971] EGD 144; 217 EG 987, CA
This is an
appeal by the defendant, Joanne Hastings, from the decision of Mr Recorder Trigger
given on October 2 1992 in Preston County Court whereby he ordered that the
plaintiff, Mr Henry Mountain, be given possession of Flat 25, 1 Waltons Parade,
Preston.
Jan Luba
(instructed by Jeff Brailsford Rimmer & Co, of Preston) appeared for the
appellant; Francis Nance (instructed by Rawsthorne Edelstons, of Preston)
represented the respondent.
Giving
judgment, RALPH GIBSON LJ said: This is an appeal by Joanne Hastings,
the defendant in an action in Preston County Court, against the decision of Mr
Recorder Trigger of October 2 1992 whereby he ordered that the plaintiff, Mr
Henry Mountain, have possession of Flat 25, 1 Waltons Parade, Preston.
The defendant
contends that the order should be set aside and the action remitted for
retrial. The questions raised for decision are directed to the proper
construction of section 8 of the Housing Act 1988, which provides for the
serving of notice of proceedings for possession of a dwelling-house let on an
assured tenancy. The defendant had a monthly periodic tenancy of the flat at a
monthly rent of £160 from about June 1990. The tenancy was an assured tenancy
within section 1 of the 1988 Act. On July 30 1992 the plaintiff served a notice
seeking possession which was intended to be, and which the plaintiff alleged to
be, a valid notice under section 8. In it the plaintiff said that he intended
to seek possession on grounds 8, 10, 11, 12, 13, and 14 of Schedule 2 to the
Act; and, in an attached sheet, in apparent response to the note on the form
that he should give the full text of each ground that was being relied on, the
plaintiff added on a separate sheet the following:
The landlord
intends to seek possession . . .
Ground 8
At least
three months rent is unpaid.
Ground 10
Some rent
lawfully due from the tenant is unpaid.
Ground 11
The tenant
has persistently delayed paying rent which has become lawfully due.
Ground 12
Any
obligation of the tenancy (other than one related to the payment of rent) has
been broken or not performed.
Ground 13
The condition
of the dwelling-house has deteriorated owing to acts of waste by or the neglect
or the default of the tenant.
Ground 14
The tenant or
any other person residing in the dwelling-house has been guilty of conduct
which is a nuisance or annoyance to adjoining occupiers.
4.
Particulars . . .
Ground 8
The monthly
rent is £160.00. No payment has been received since 2nd November 1991. The
total arrears due and payable amount to £1,280.00.
Ground 10
See Ground 8
above.
Ground 11
See Ground 8
above.
Ground 12
The tenant
has failed to make payment for electricity as required by the tenancy
agreement. No money has been recovered by the landlord from the electricity
meter for some nine months. The landlord estimates that the cost of the electricity
during that period is in excess of £300.
The tenant
has kept a dog on the premises in breach of the tenancy agreement.
Ground 13
Fire damage
to landing and adjoining area. Smashed landing windows. Smashed doors.
Ground 14
Loud music is
consistently being played during late and unsociable hours. Persons in
occupation of the flat have used violent, aggressive and threatening behaviour
to the landlord and other occupiers. The behaviour of the tenant and other
occupiers of the flat has resulted in the intervention of the police.
The main point
in the appeal arises on the way in which the plaintiff in his notice specified
the grounds upon which he relied and in particular ground 8, for which the
plaintiff said: ‘At least three months rent is unpaid.’ The full text of ground 8 as set out in
Schedule 2 is as follows:
Both at the
date of the service of the notice under section 8
of this Act relating to the proceedings for possession and at the date of
the hearing —
(a) If rent is payable weekly or fortnightly at
least 13 weeks rent is unpaid; —
(b) If rent is payable monthly, at least three
months rent is unpaid;
(c) If rent is payable quarterly, at least one
quarter’s rent is more than three months in arrears; and
(d) If rent is payable yearly, at least three
months rent is more than three months in arrears;
and for the
purpose of this ground ‘rent‘ means rent lawfully due from the tenant.
The words upon
which the argument has concentrated are emphasised in ground 8 as set out
above.
The
proceedings for possession were begun on August 18 1992. It was alleged that
the notice of July 30 1992 was in the prescribed form. The particulars of the
grounds were repeated. Possession was claimed together with mesne profits and
arrears of rent and £300 for electricity supplied.
No defence was
served by the defendant. On September 8 1992 she applied for legal aid. A legal
aid certificate was received by the defendant’s solicitors on September 30
1992. It was limited to obtaining a surveyor’s report on the condition of the
flat for the purposes of an intended counterclaim for damages for breach of the
implied covenants under section 11 of the Landlord and Tenant Act 1985. A
report was obtained from John Kershaw & Co, chartered surveyors. The
limitation upon the legal aid certificate was removed on October 1 1992.
The
plaintiff’s action was listed for hearing on October 2 1992 before Mr Recorder
Trigger. The defendant was represented by counsel, not Mr Luba, who has
appeared for her in this court. The plaintiff was represented by Mr Hawkes, his
solicitor. Mr Hawkes informed the recorder that he was asked to adjudicate on a
preliminary point, namely that, since at least three months’ rent was unpaid at
the time of the section 8 notice, and at the date of the hearing, there was
proved a mandatory ground for possession under section 7(3) of the 1988 Act. He
asked for an immediate order on that ground.
Counsel for
the defendant then: (i) accepted that there was a prima facie case made
out under ground 8 because the defendant accepted that the rent had not been
paid; (ii) informed the recorder that the defendant’s case was that the reason
for the rent not being paid was that, having lost her job and having then
obtained housing benefit, the rent was paid direct to the plaintiff by the
Housing Benefit Office until November 1991; that office had said that benefit
was not being paid after that date because the plaintiff has said that rent was
not being exchanged between the defendant and the plaintiff, and that payment
of benefit would be considered if the defendant provided a tenancy agreement or
other proof of liability to pay rent: but the defendant had no written
agreement and did not know why the plaintiff had not provided such evidence; (iii)
the defendant wished to contend that because of the state of the premises she
was entitled to a reduction of the rent by way of set-off; (iv) the court was
invited to adjourn the hearing under section 9(1) of the 1988 Act; (v) when the
recorder pointed to the provisions of section 9(6) counsel accepted that it
‘put paid to that argument’ for an adjournment under section 9.
Mr Hawkes for
the plaintiff informed the recorder that the plaintiff’s instructions were that
he had passed forms from the Housing Benefit Authority to the defendant, but
that, despite all his efforts, no benefits had been forthcoming. No evidence
whatever was called.
The recorder,
in giving judgment, proceeded as follows. He observed that the facts were
largely agreed, that it was common ground that the rent had not been paid since
November 1991, and that an appropriate notice in writing dated July 30 1992 was
served on the defendant under section 8 of the 1988 Act effectively telling the
defendant that the plaintiff intended to seek possession on the grounds, among
others, of ground 8.
As to the
application to adjourn under section 9 there was clearly no power so to do
because of subsection 6. As to the submission that there might be a set-off for
breaches of covenant and that, therefore, the rent might not be lawfully due
under ground 8, he found that the claim clearly fell within ground 8. He
therefore made an order for possession in 28 days.
By notice of
appeal of October 29 1992 it was contended for the defendant that: (i) the
recorder had no jurisdiction to try the application for possession because the
plaintiff had not served a notice complying with section 8 in that his notice
failed to provide the full text of each ground for possession relied upon and
the notice was not in the prescribed form; (ii) the refusal of an adjournment
to permit the defendant to raise her claims to a set-off against the rent was
an improper exercise of judicial discretion. Further, the recorder misdirected
himself in refusing an adjournment on the ground that section 9(6) required him
so to do, and in holding that it was not open to a tenant in proceedings based
on ground 8 to assert that the rent claim was not lawfully due in reliance upon
a set-off.
By a
respondent’s notice it was contended for the plaintiff that the defendant, not
having raised the point as to the validity of the notice at the hearing, was
estopped from raising that issue on appeal.
The relevant
statutory provisions are as follows. An assured tenancy is defined by section 1
of the Act. The relevant provisions for security of tenure, in the case of a
periodic tenancy, are set out in section 5(1):
An assured
tenancy cannot be brought to an end by the landlord except by obtaining an
order of the court in accordance with the following provisions of this Chapter
or Chapter II below or, in the case of a fixed term tenancy which contains
power for the landlord to determine the tenancy in certain circumstances, by
the exercise of that power and, accordingly, the service by the landlord of a
notice to quit shall be of no effect in relation to a periodic assured tenancy.
As to orders
for possession, section 7 provides, so far as relevant:
(1) The court shall not make an order for
possession of a dwelling-house let on an assured tenancy except on one or more
of the grounds set out in Schedule 2 to this Act; . . .
(2) The following provisions of this section have
effect, subject to section 8 below, in relation to proceedings for the recovery
of possession of a dwelling-house let on an assured tenancy.
(3) If the court is satisfied that any of the
grounds in Part 1 of Schedule 2 to this Act is established then, subject to
subsection (6) below, the court shall make an order for possession.
(4) If the court is satisfied that any of the
grounds in Part II of Schedule 2 to this Act is established, then, subject to
subsection (6) below, the court may make an order for possession if it
considers it reasonable to do so.
It is to be
noted that the provisions enacted to have effect in relation to proceedings for
possession, including those under Part I of Schedule 2, are by subsection (2)
expressly made subject to section 8.
Section 8
deals with notice of proceedings for possession and the relevant parts must be
set out in full:
(1) The court shall not entertain proceedings for
possession of a dwelling-house let on an assured tenancy unless —
(a) the landlord or, in the case of joint
landlords, at least one of them has served on the tenant a notice in accordance
with this section and the proceedings are begun within the time limits stated
in the notice in accordance with subsections (3) and (4) below; or
(b) the court considers it just and equitable to
dispense with the requirement of such a notice.
(2) The court shall not make an order for
possession on any of the grounds in Schedule 2 to this Act unless that ground
and particulars of it are specified in the notice under this section; but the
grounds specified in such a notice may be altered or added to with the leave of
the court.
(3) A notice under this section is one in the
prescribed form informing the tenant that —
(a) the landlord intends to begin proceedings for
possession of the dwelling-house on one or more of the grounds specified in the
notice; and
(b) those proceedings will not begin earlier than
a date specified in the notice which, without prejudice to any additional
limitation under subsection
(4) below, shall not be earlier than the expiry
of the period of two weeks from the date of service of the notice; and
(c) those proceedings will not begin later than
twelve months from the date of service of the notice.
(4) . . .
(5) The court may not exercise the power
conferred by subsection (1)(b) above if the landlord seeks to recover possession
on Ground 8 in Schedule 2 to this Act.
Pursuant to
section 45(1) the Secretary of State by SI 1988 No 2203, the Assured Tenancies
and Agricultural Occupancies (Forms) Regulations 1988, prescribed the form for
a notice under section 8. Regulation 2 provides:
In these
Regulations any reference to a section is to a section of the Housing Act 1988
and any reference to a numbered form is a reference to the form bearing that
number in the Schedule to these Regulations, or to a form substantially to the same
effect.
The relevant
form is no 3. Following the introductory words of warning, advice and
explanation, the blank form proceeds as follows:
3. The
landlord intends to seek possession on ground(s) (–) in Schedule 2 to the
Housing Act 1988, which reads:
Give the
full text of each ground which is being relied on. (Continue on a separate
sheet if necessary)
—
•Whichever
grounds are set out in paragraph 3 the court may allow any of the other grounds
to be added at a later date. If this is done, you will be told about it so you
can discuss the additional grounds at the court hearing as well as the grounds
set out in paragraph 3.
4.
Particulars of each ground are as follows —
Give a
full explanation of why each ground is being relied. (Continue on a separate sheet
if necessary.)
—
•If the court
is satisfied that any of grounds 1 to 8 is established it must make an order
(but see below in respect of fixed term tenancies).
•Before the
court will grant an order on any of grounds 9 to 16, it must be satisfied that it
is reasonable to require you to leave. This means that, if one of these grounds
is set out in paragraph 3, you will be able to suggest to the court that it is
not reasonable that you should have to leave, even if you accept that the
ground applies.
Conclusion
For the
following reasons, which are substantially in acceptance of Mr Luba’s admirable
argument, I would allow this appeal on the ground that the notice was bad. I
will consider first the arguments directed to the validity of the notice. I
will give my reasons later for holding that the defendant must be permitted to
raise that point in this court.
As to the
submission that the notice was defective because ground 8 was not specified by
the full text of that ground as set out in Schedule 2, I do not decide this
issue upon that basis. I prefer the view that the ground in Schedule 2 may
validly be ‘specified in the notice’ as required by Parliament, in words
different from those in which the ground is set out in the schedule, provided
that the words used set out fully the substance of the ground so that the
notice is adequate to achieve the legislative purpose of the provision. That
purpose, in my judgment, is to give to the tenant the information which the
provision requires to be given in the notice to enable the tenant to consider
what she should do and, with or without advice, to do that which is in her
power and which will best protect her against the loss of her home.
Thus, in Torridge
District Council v Jones (1985) 18 HLR 107*, with reference to section
33 of the Housing Act 1980 (later section 83 of the Housing Act 1985 which
contains a similar provision), the issue related not to the words in which the
ground was specified but to the sufficiency of the particulars of the ground
given in the notice. Oliver LJ said at p113:
As it seems
to me, in the case of the instant statute, that is the Housing Act 1980, we are
really concerned with quite a different type of notice. This is a warning shot
across the bows of the tenant and the object of it is to warn him that unless
he repairs what is stated as the ground on which possession is going to be
sought, he is going to be liable to court proceedings. It seems to me as plain
as a pikestaff that the object of the notice is to bring to the tenant’s notice
the defect of which complaint is made to enable him to make a proper
restitution before proceedings are commenced and to deal with that.
*Editor’s
note: Also reported at [1985] 2 EGLR 54.
Later, at
p114, he said:
It seems to me
that it is plain that this subsection does require a specification sufficient
to tell the tenant what it is he has to do to put matters right before the
proceedings are commenced.
In my
judgment, therefore, the notice which was served upon the appellant in this
case was not a proper notice which complied with section 33(3). Accordingly, .
. . the notice not complying with the subsection, the court was then prohibited
from entertaining the proceedings at all.
If, with reference
to the specification of the ground upon which the landlord intends to begin
proceedings for possession, the ground is specified in words which give to the
tenant every piece of information which Parliament has said that he shall have
and in words which are clear, then, as it seems to me, the legislative purpose
of the provision would be satisfied and there would be no effective requirement
for the ground to be specified in the very words set out in Schedule 2 unless
Parliament has made that requirement.
The word
‘specified’ takes its particular meaning from the context in which it is used
and from the matter to which it is applied. The Shorter Oxford Dictionary
gives the first meaning of the word as: ‘to speak or make relation of some
matter fully or in detail’.
The
requirement in section 8(2) is to specify the ground: it is not that the ground
be set out as in Schedule 2. I would add that it is also not merely to identify
the ground. If the ground is specified in the notice in terms which set out all
the necessary information, ie the substance of the ground, it seems to me that
the requirement that the ground be specified would be met. I would add that it
is difficult to think of any good reason why a person, given the task of
settling a form of notice, should choose to use words different from those in
which the ground is stated in the schedule.
The notice
must also be in the prescribed form. The regulation by which the form is
prescribed requires the form used to be in the form there set out or ‘substantially
to the same effect’. If the form served is to be completed fully in accordance
with the form, it will set out the text of the ground as it appears in Schedule
2 because the form in para 3 says: ‘the landlord intends to seek possession on
ground(s) . . . in Schedule 2 which reads‘ and note (3) in the margin
says: ‘give the full text of each ground which is being relied on’.
The
regulation, however, expressly permits the notice to be
which I take to mean to be showing no difference in substance having regard to
the legislative purpose of the provisions as a whole. I, therefore, am not
persuaded that there is a statutory requirement that the ground be set out
verbatim from the schedule. I am troubled by the risk that, if the tenant is
faced with a set of words which effectively set out the substance of a ground
but in markedly different words, the tenant may, if he has access to the words
of Schedule 2, be puzzled and troubled by the difference. There is something to
be said in favour of the use of the words in which the ground was enacted by
Parliament. I do not decide this point, however, because the case can be, and I
think should be, decided on the ground that the plaintiff’s notice was not
‘substantially to the same effect’ as that required by the Act and regulations.
Further, on
the question of any requirement to state the words of the ground in full as in
Schedule 2, it is to be noted that this case does not raise any question as to
parts of the text of a particular ground which could properly be considered
surplusage to the ground upon which the landlord will rely. Examples are one of
the alternatives in ground 1 and one or more of the alternatives in ground 6.
The point has not been argued. It seems that, if the omitted material can be
regarded as irrelevant in the circumstances of the particular case, the
omission may not invalidate the notice: see Tegerdine v Brooks
(1977) 36 P&CR 261*. If the omission or inaccuracy was inadvertent, and if
it was obvious such a mistake had been made, and what was intended, again the
error may not invalidate the notice: see Morrow v Nadeem [1986] 1
WLR 1381† , per Nicholls LJ.
*Editor’s
note: Also reported at (1978) 245 EG 51, [1978] 1 EGLR 33.
† Editor’s
note: Also reported at [1986] 2 EGLR 73.
I would hold
this notice to be defective because, in my judgment, it did not specify ground
8 by the words: ‘At least three months rent is unpaid’. The omitted information
is that the ground which must be proved includes the requirement that ‘both at
the date of the service of the notice . . . and the date of the hearing . . .
at least . . . three months rent is unpaid and . . . ‘rent’ means rent lawfully
due from the tenant’.
Mr Nance
submitted that the description of ground 8 was substantially to the like effect
as that required by the prescribed form because the omitted words with reference
to rent unpaid at the hearing related to the future and the tenant in fact had
all that she needed to know in order to decide what to do. That submission is,
I think, unacceptable because the tenant who is three months in arrears might
suppose from the plaintiff’s notice that the mandatory ground of possession,
upon which the court must make an order, was thereby established although he or
she might be able, if aware of the significance of it, to pay all or part of
the arrears before the date of the hearing and therefore prevent proof of such
a mandatory ground. It was not submitted, rightly as I think, that for this
purpose it matters whether the particular tenant could or would have paid
before the hearing so as to be able to prove any specific detriment caused by
the deficiency in the notice: see per Reskill LJ in Tegerdine v Brooks
(supra) at p266. The provision of full information as to the terms in
which ground 8 is expressed in the schedule, and in which it must be proved,
is, therefore, in my judgment part of that which must be stated if the ground
is to be specified and if the notice is to be substantially to the like effect
as the notice in the prescribed form.
If I am right
so far, the notice upon which the recorder assumed that the court had jurisdiction
under section 8(1) to entertain the proceedings for possession in respect of
the ground 8 claim, or that the court could under section 8(2) make an order
for possession on ground 8, was in fact not such a notice. The recorder did not
consider the point and, in my judgment, should not be criticised for not doing
so. Counsel appeared for the defendant and he argued the points which he saw as
relevant. The fact that the point was not seen or raised, however, does not in
my judgment by itself preclude raising it on appeal. Apart from the question as
to the court’s jurisdiction, it is clear that this court has a discretion to
allow a party to raise a point on appeal which has not been raised in the court
below: see per O’Connor LJ in McCamley v Cammell Laird
Shipbuilders Ltd [1990] 1 WLR 963 at p972 giving the judgment of the court.
He referred to Wilson v Liverpool Corporation [1971] 1 WLR 302*
where Widgery LJ referred to ‘the well-known rule of practice that, if a point
is not taken in the court of trial, it cannot be taken in the appeal court
unless that court is in possession of all the material necessary to enable it
to dispose of the matter finally, without injustice to the other party, and
without recourse to a further hearing below’.
*Editor’s
note: Also reported at (1971) 217 EG 987.
Widgery LJ
continued:
I recognise,
as does Lord Denning MR, that being a rule of practice this rule contains an
element of discretion. There may well be cases in which justice demands that a
different view be taken owing to the special circumstances of the case; but
this in my judgment is clearly a case in which no sort of exception should be
made.
The facts
relevant to the validity of the notice are before the court. Subject to one
point, which is considered later in this judgment, it has not been suggested
that any further evidence could have been given by or on behalf of the
plaintiff, which would have been relevant to the validity of the notice, if the
point has been raised before the recorder.
Mr Nance
contended that the raising of the point by the defendant should be excluded
upon the basis of estoppel. On the facts of this case, I do not accept that any
relevant form of estoppel arose. Nobody saw the point. The plaintiff was not
relying on any representation by the defendant.
There may be
cases in which it would not be just to permit a defendant, who had not raised
such a point before the county court, to raise it on appeal, for example, if
the time for appealing had expired. There is nothing of that nature in this
case. The defendant is entitled to raise and to rely upon the point apart from
any special question of jurisdiction.
As to the
point of jurisdiction, Mr Nance referred the court to Wandsworth London
Borough Council v Fadayomi [1987] 1 WLR 1473. He referred to the
judgment of Parker LJ at p1479 where he cited the judgment of Atkin LJ in Barton
v Fincham [1921] 2 KB 29. There, with reference to section 5 of the
Increase of Rent and Mortgage Interest (Restrictions) Act 1920, Atkin LJ said:
The section
appears to me to limit definitely the jurisdiction of the courts in making
ejectment orders in the case of premises to which the Act applies. Parties
cannot by agreement give the courts jurisdiction which the legislature has
enacted they are not to have. If the parties before the court admit that one of
the events has happened which give the court jurisdiction, and there is no
reason to doubt the bona fides of the admission, the court is under no
obligation to make further inquiry as to the question of fact; but apart from
such an admission the court cannot give effect to an agreement, whether by way
of compromise or otherwise, inconsistent with the provisions of the Act.
Mr Nance
argued that the fact, namely the sufficiency of the notice, was admitted before
the county court. I cannot accept that submission. The sufficiency of the
notice was not a fact capable of admission in the sense of the judgment of
Atkin LJ. It was a question of law to be decided upon the admitted facts. Those
facts were the existence of the arrears of rent and the service of the notice
in the form in which it was before the court. The comment of Atkin LJ as to the
limitation of the jurisdiction of the county court under the 1920 Act applies,
in my judgment, with equal rigour to section 8(1) of the 1988 Act.
Mr Nance
lastly raised a further point which did not appear in the respondent’s notice
and to which no evidence was directed. He pointed to the fact that under section
8(2) ‘the grounds specified in such a notice may be altered or added to with
the leave of the court’. Since the plaintiff’s notice contained reference to
additional grounds in Schedule 2, which were ‘specified in the notice under
this section’, there was, therefore, jurisdiction to entertain the proceedings
for possession. In other words, the plaintiff ‘got himself into court’ under
subsection (1). The plaintiff was, therefore, entitled to ask the court to
exercise its discretion to permit ‘the ground specified in such a notice to be
altered or added to with the leave of the court’. That power
requirements of the Act.
The
consequences of this point were, said Mr Nance, two-fold: first, it provided
good reason to refuse the defendant leave to raise the notice point because it
showed how the plaintiff would have acted in response to the point if taken
below; and, second, this court should, if the point were to be permitted to be
raised, accept and allow the plaintiff’s application for the necessary
alteration of the notice.
I found it
impossible to accept this submission for either purpose. First, the submission
depends, in my judgment, upon a mistaken construction of the section. Subsection
(1) is a command that the court shall not entertain proceedings etc unless the
landlord has served on the tenant a notice in accordance with this section. The
only exception to that requirement is if the court considers it just to
dispense with the requirement of such a notice. That, as I understand it, means
that the court may dispense with the requirement of any notice or, if a
defective notice has been served, may dispense with the requirement of ‘such a
notice’, ie a notice in accordance with this section.
Subsection
(2), however, does not, in my judgment, enable the court to invalidate a notice
by ‘altering grounds specified’. The language of this subsection is directed to
a different matter. It assumes that there is a ‘notice under this section’, ie
a notice which satisfies the requirements of the section. Subsection (2) then
directs that ‘the ground specified in such a notice’ — ie a notice under this
section — may be altered or added to with the leave of the court. That means
that the court may alter the grounds specified — by, for example, taking out
ground 8 and putting in ground 11 — or add to the grounds specified by, for
example, adding ground 13 to ground 12.
The
construction for which Mr Nance contended must, as it seems to me, be rejected
if only because of the presence of subsection (5). Mr Nance was driven to
concede that, if his client’s notice had contained reference only to ground 8
in the form in which it appeared in the notice, and if that form is defective,
the court could not dispense with the requirement and the court could not
therefore reach subsection (2) in order to ‘alter’ the form in which the ground
was specified. But he argued that, since the notice contained other grounds
validly specified, the court has jurisdiction to make the ‘alteration’. That
submission seemed to me to be impossible of acceptance for the following
reasons. If a landlord serves a notice of intention to begin proceedings for
possession of the dwelling-house on more than one ground specified in the
notice, then each ground must be ‘specified in the notice’. If one ground is
not so specified, the notice is not a ‘notice under this section’. There would
then be no jurisdiction to entertain the proceedings because no ‘notice in
accordance with this section’ has been served unless the court is persuaded to
dispense with the requirement of such a notice under subsection (1). If, in the
notice, the landlord seeks to recover possession on ground 8, that power cannot
be exercised because of subsection (5). The landlord is seeking to recover
possession on ground 8 even if he is also seeking to recover possession on
other grounds. It is not necessary to consider what the power of the court
would be under section 8(1)(b), to dispense with the requirement of a valid notice,
by striking out a defective reference to ground 8. The court, it could be said,
has the power so to dispense because the landlord would not be ‘seeking to
recover possession on ground 8’ and the prohibition in section 8(5) would
therefore not apply. This point was not addressed in argument.
If there were
any doubt about the construction of these provisions, as in my view there is
not, I would prefer the construction which I have set out above because it
seems to me highly unlikely that Parliament intended the court to have power to
cure a defect in the form in which ground 8 is specified if more than one
ground is specified and if one such ground is properly specified, but not to
have power to cure a defect by dispensing with the requirement of proper specification
of ground 8 if that is the only ground specified, and even if it would be just
and equitable so to do.
For these
reasons I would allow this appeal and remit the action to the county court for
rehearing.
As to the
remaining points, we have not heard full argument upon the issue as to set-off
of damages for breach of a repairing covenant and the meaning of ‘rent lawfully
due from the tenant’ in ground 8. No facts were found by the recorder: there
was no pleading before him. I prefer to express no opinion upon the contention.
As to section
9(1) and (6) we again did not hear full argument. For my part, my impression is
that section 9 is not dealing with the ordinary power of adjournment which the
court has to control and direct the conduct of a trial: it is directed to an
extended discretion as there described. If there is shown to be an apparently
genuine contention that there has been a breach of a repairing covenant of such
gravity, in consequences to the tenant’s enjoyment of the premises let, and that
the damages in respect of those consequences might reasonably, if set against
the admitted arrears, reduce the unpaid rent to a sum below the ground 8
amount, then, as it seems to me, it might well be right for the proceedings to
be adjourned for trial of the defendant’s counterclaim. So far as concerns
section 9(6), such a course would be justified because the court would, in such
circumstances, not be satisfied that the landlord was entitled to possession
under ground 8 until the counterclaim had been tried.
MANN and NOLAN LJJ agreed and did not add anything.
Appeal
allowed with costs.
