Licence to occupy property — License granted to defendant’s wife — Wife moving out upon divorce — Possession order granted in favour of claimant property owner — Defendant applying to set aside order — Whether defendant having licence in own right — Whether protected by section 3(1) of Protection from Eviction Act 1977 — Whether High Court lacking jurisdiction to enforce possession — Whether defendant’s application an abuse of process — Application allowed
The claimant company was owned by the trustees of a discretionary settlement. The settlor was the defendant’s wife and the main beneficiaries were their children. With the oral permission of the trustees, the family used a property owned by the company as a home until the couple separated and divorced in 1996. After the wife moved out, the claimant served notice to quit on the defendant. It then brought possession proceedings in the High Court on the ground that the licence to occupy that had been granted to the defendant’s wife had terminated when she moved out and that the defendant had occupied since without any express consent of the claimant. The defendant defended the proceedings on the basis that he had beneficial ownership of the property, title by adverse possession or a life interest granted by oral agreement. Those contentions were rejected by a master, who allowed the claimant’s claim. That decision was upheld on appeal to a High Court judge. The judge made an order permitting the claimant to issue a writ of possession, not to be enforced provided that the defendant complied with certain conditions. The defendant applied for permission to appeal.
In the meantime, the defendant failed to comply with the terms of the order. Bailiffs acting on the claimant’s behalf took possession of the property by executing a writ of possession. The defendant applied to the judge to revoke the possession order on the ground that it had been made without jurisdiction. He argued that: (i) prior to the notice to quit, he had been in lawful occupation of the property, either as a licensee himself or pursuant to a licence in favour of the children; (ii) that licence was for money’s worth within the meaning of section 3A(7)(b) of the Protection from Eviction Act 1977, such that the licence was not an excluded licence; (iii) the defendant was therefore entitled to the protection of section 3(1), by virtue of which the claimant could not enforce its right to possession other than by proceedings in the relevant county court; and (iv) and the High Court accordingly lacked any enforcement jurisdiction. The claimant submitted that the defendant’s application amounted to an abuse of process because, inter alia, it was inconsistent with his case on the merits.
Held: The application was allowed.
The fact that the defendant’s claim was inconsistent with his case on the merits, which he still sought to pursue by way of appeal, did not render that claim an abuse of process. The question was whether the facts proved by the claimant in support of its claim for possession brought the claim within the 1977 Act. The fact that the defendant asserted, and had so far failed on, a contrary case was irrelevant if the claimant’s case did prove such facts. The parties could not evade the provisions of the 1977 Act by consent or waiver.
The licence granted to the defendant’s wife up to 1996 had been for money’s worth in that it contained an obligation to insure and repair. Compliance with that obligation was a valuable benefit to the claimant and was the quid pro quo for the licence: West Wiltshire District Councilv Snelgrove (1998) 30 HLR 57 distinguished. On the evidence, neither the defendant nor the children had ever become licensees in their own right. The defendant had merely remained at the property after the end of his lawful occupation under his wife’s licence upon her departure in 1996; he had been a lawful occupant at the date upon which that licence came to an end. Since the licence was not an excluded licence, it followed that the 1977 Act applied and that the parts of the order relating to enforcement had been made without jurisdiction. That did not render the entire possession proceedings of no effect. Issues as to whether the claimant had any relevant right of possession, as to the true ownership of the property, and as to whether it should be sold were all suitable to be determined in the High Court, and High Court proceedings to determine them did not infringe the policy of the 1977 Act. The court’s ruling on the defendant’s claims of beneficial ownership, life interest and adverse possession remained binding upon the parties; the issues of enforcement would be transferred to the county court.
Timothy Fancourt QC (instructed by Eversheds LLP) appeared for the claimant; Julian Gun Cuninghame (instructed by RA Rosen & Co) appeared for the defendant.
Sally Dobson, barrister
