Accommodation Agencies Act 1953–Supplying address may not be charged for, but finding accommodation may–Agent’s appeal allowed and conviction quashed–McInnes v Clarke explained as a case in which a deposit was charged before addresses were supplied–Fact that deposit was returnable if accommodation was not found held immaterial
This was an
appeal by Mrs Frances Maynard Soper, of Brighton Avenue, Southend-on-Sea,
Essex, principal of Wilson’s Accommodation Bureau, Southend, against a decision
of the Queen’s Bench Divisional Court on May 1 1974 upholding her conviction by
Southend justices on charges of accepting or demanding sums of money in
consideration of supplying one Christine Nichols with addresses of houses to
let, contrary to section 1 (1) (b) of the Accommodation Agencies Act
1953. The Divisional Court’s decision was reported at 231 EG 239.
Mr R H
Bernstein QC and Mr S J Burnton (instructed by F T Fisher & Lang, of
Southend-on-Sea) appeared for the appellant, and Mr B J Higgs QC and Mr K Dow
(instructed by Sharpe, Pritchard & Co) represented the respondent, a police
inspector.
LORD REID: For
the reasons given by my noble and learned friend, Viscount Dilhorne, I would
allow the appeal.
VISCOUNT
DILHORNE: The appellant, it was not disputed, carries on and has carried on for
some 6 1/2 years a highly respectable agency under the name of Wilson’s
Accommodation Bureau. On January 25 1973 a Miss Christine Nichols came to see
her, wanting accommodation for herself and two friends. The appellant at that
time did not know of any likely to suit, but agreed to try and find some, and
asked Miss Nichols to call on her again. Miss Nichols did so on a number of
occasions. The appellant, or someone on her behalf, inspected premises at 27
Dawlish Drive, Southend-on-Sea and thought they might suit Miss Nichols, and so
Miss Nichols was given that address. On February 13 1973 Miss Nichols signed an
agreement in writing which contained the following paragraph:
In
consideration of the services of Wilson’s Accommodation Bureau in finding or
introducing accommodation acceptable to me/us, I/we agree to pay to Wilson’s
Accommodation Bureau a fee of the equivalent of one week’s rent (minimum £5.25)
for the accommodation accepted by me/us. No fee is payable to Wilson’s
Accommodation Bureau unless and until I or we become the tenant(s) of the
accommodation found or introduced by Wilson’s Accommodation Bureau to me/us.
Miss Nichols,
having inspected the premises, entered into an agreement to rent them for £7 a
week. She thereupon under the agreement into which she had entered became
liable to pay to the appellant £7, and she paid that sum on February 20 1973.
Later Miss Nichols again came to see the appellant and again told her that she
wanted accommodation for three persons. Again the appellant had no suitable
accommodation on her books, and Miss Nichols was asked to call again. She did
so on a number of occasions, and on the last occasion was given an address, 34
Retreat Road, Westcliff-on-Sea. On March 16 1973 she signed an agreement
similar in all respects to that which she had previously made with the
appellant. She became tenant of those premises at a weekly rent of £16 a week,
and so became liable under the agreement to pay the appellant £16. This she did
not do and has not done, although payment was demanded. On July 12 1973 the
respondent, a police inspector, preferred two informations against the
appellant, the first alleging that she had on February 20 1973 accepted from
Miss Nichols £7 in consideration of supplying her with addresses of houses to
let, contrary to section 1 (1)(b) of the Accommodation Agencies Act
1953, and the second alleging that she had demanded £16 in consideration of
supplying Miss Nichols with addresses of houses to let, contrary to that subsection
of that Act. The appellant was convicted of both offences, and her appeal to
the Divisional Court was dismissed. She now appeals to this House with the
leave of that court. That she accepted £7 from Miss Nichols and demanded
payment of £16 by her is not disputed. The question to be decided is whether,
by doing so, she committed offences against this subsection.
The Act is
entitled: ‘An Act to prohibit the taking of certain commissions in dealings
with persons seeking houses or flats to let and the unauthorised advertisement
for letting of houses and flats.’ It is
to be noted that the object of the Act is not stated to be the prohibition of
the taking of all commissions in dealings with such persons, but only of the
taking of certain commissions. The Act is a short one, containing only two
sections, the first of which, so far as material, reads as follows:
1 (1) Subject
to the provisions of this section, any person who during the continuance in
force of this Act,–
(a) demands or accepts payment of any sum of
money in consideration of registering, or undertaking to register, the name or
requirements of any person seeking the tenancy of a house;
(b) demands or accepts payment of any sum of
money in consideration of supplying, or undertaking to supply, to any person
addresses or other particulars of houses to let; or
(c) issues any advertisement, list or other
document describing any house as being to let without the authority of the
owner of the house or his agent,
shall be
guilty of an offence [punishable by a fine not exceeding £100, or imprisonment
not exceeding three months, or both].
(2) A person shall not be guilty of an offence
under this section by reason of his demanding or accepting payment from the
owner of a house of any remuneration payable to him as agent for the said
owner.
The first
matter to consider is what was the mischief at which this Act was aimed. One
can only deduce that from its terms. Section 1 (1) (a) was clearly
directed to preventing persons desirous of accommodation being charged merely
for the registration of their names or their requirements. Section 1 (1) (b)
was, in my view, equally clearly directed to preventing charges being made just
for supplying addresses. It is obvious what section 1 (1) (c) was
intended to prevent. Commission of any of the three offences created by this
section does not in any way depend on the character of the agency. Whether the
agency be reputable or bogus, the person who runs it and charges for supplying
addresses to persons wanting accommodation commits an offence against section 1
(1) (b). The object of section 1 (2) is not at first sight easy to
discern, but if it were not there, a person
addresses of those flats to would-be occupants would be unable to obtain from
the owner or his agent any remuneration for his services.
It was not in
this case contended that the agreements signed by Miss Nichols did not
correctly and completely state the terms on which the bureau would become
entitled to payment from her. The respondent, however, contended that if, in
the course of carrying out the contract made, the address of premises to let
was supplied, then the demand or acceptance of payment, even though no payment
was due unless and until acceptable accommodation had been found and rented by
the client, was, inter alia, a demand or acceptance of payment for the
supplying of the address. If this be right, it follows that an agent employed
by a prospective tenant to find for him, it may be, a large house or one whose
requirements are of an unusual character, cannot lawfully demand payment for
his services from his client when he finds premises which suit his client and
of which his client becomes the tenant. Mr Higgs, in the course of his argument
for the respondent, was unable to suggest that in such circumstances there was
any mischief in the agent claiming commission which Parliament would want to
prevent. In my opinion, the mischief to which section 1 (1) (b) was
directed was simply to prevent charges being made for supplying addresses and
did not extend beyond that. So, in my opinion, the question for decision in
this appeal is simply, did the appellant accept or demand payment for supplying
addresses? If instead of supplying one
address on each occasion she had supplied 100 or a 1,000 addresses, under the
agreements which she signed Miss Nichols would not have been liable to make any
payment. She was not asked to pay, nor did she pay, for being given addresses.
Under the agreements she became liable to pay not for the giving of addresses
but for the finding of accommodation acceptable to her and accommodation of
which she became the tenant. On the facts of this case, and in view of the
terms of the agreements entered into, consideration of the terms of the section
leads me to the conclusion that this appeal should be allowed; and as I read
Lord Widgery’s judgment in this case, that would appear to have been his view
were it not that he felt himself bound by some previous decisions to which I
must now refer.
The first of
these was McInnes v Clarke [1955] 1 WLR 102. In that case the
applicant for premises, when he had stated his requirements and what rent he
was willing to pay, was told that the fee payable by him if premises were found
for him would be a sum equal to one week’s rent, and that a deposit of
approximately half the weekly rent would be asked for. If the client was
willing to agree to pay the deposit, he was then asked to sign an agreement.
After he had obtained accommodation, he had to pay the balance of the fee.
Unsatisfied clients who demanded the deposit back received it. Sometimes before
and sometimes after the agreement was signed, a list of addresses would be
given to the client. Following this procedure, the appellant, who carried on
the business of an estate agent, was convicted on two summonses of offences
against section 1 (1) (b) of the Accommodation Agencies Act. Apart from
supplying a list of addresses, he had done nothing about finding accommodation
which was suitable. The Divisional Court dismissed his appeal. Lord Goddard CJ
in the course of his judgment said that the agreements in that case showed that
what the appellant did was to say to a person, ‘If you give me a deposit of
approximately half the week’s rent, I will send you some names and addresses,
particulars of houses, and if you take one of them you have to pay me the rest
of the sum, which is to be equivalent to a week’s rent. If I cannot satisfy you
I will give you your deposit back.’ Lord
Goddard thought the case for the appellant unarguable, because it seemed to him
that what the appellant had done was to accept payment in consideration of
supplying addresses. Cassels J pointed out that in one of the agreements it was
said that the client would get a daily list of addresses for 18 consecutive
working days and that that was what the deposit was paid for. Streatfeild J
agreed, and said that unless the deposits were paid, no list of addresses would
be obtained. Lord Widgery, in the course of his judgment in the present case,
said in relation to that case that he did not find it particularly difficult to
accept the proposition that since the payment of a deposit was a condition of
obtaining particulars of houses, the payment of the deposit was a consideration
for those particulars. He thought that it might be possible to distinguish that
case from the present one. I agree. In my opinion, the decision in that case
was clearly right and is clearly distinguishable from this case. In that case
there was an agreement to pay a deposit before addresses were supplied, and the
payment of the deposit did not cease to be a payment because if the client was
dissatisfied it was returnable. The judgments in that case make it clear that
the decision was founded on the payment of the deposit. In the present case
there was no demand for or acceptance of payment just for supplying addresses.
The next case
was Crouch & Lees v Haridas [1972] 1 QB 158. The plaintiffs,
a firm of estate agents, had sued for commission for supplying the defendant
with particulars of an unfurnished flat which the defendant had rented. The
particulars of claim alleged that the defendant had agreed to pay commission
for supplying him with particulars of a flat in the event of his taking a lease
of it. Davies LJ said that it seemed to him perfectly clear that the plaintiffs
did demand a payment for supplying particulars. That, he said, was the whole
contract as pleaded by them. That overlooks the fact that it was pleaded by
them that the commission was only payable on a lease of the flat being taken.
He went on to say that the case was not distinguishable from McInnes v Clarke
by reason of the payment of a deposit in that case. He thought that a
distinction without a difference. ‘There was,’ he said, ‘no advance payment in
the present case, but only an agreement to pay when the defendant was
satisfied. That, I think, makes no difference at all, because in each case,
unless the defendant obtained a flat and was satisfied with it, there would in
the event be no payment at all.’ With
the greatest respect, I do not think that it was accurate to say that the fact
that there was no advance payment made no difference at all or that in each
case there would have been no payment if the client was not satisfied. In McInnes
v Clarke there was a payment, which if the client was dissatisfied he
might recover. In Crouch & Lees v Haridas no payment of any
sum was made or became due unless and until the client became a tenant of the
premises of which the address had been supplied to him. In that case the other
Lords Justices agreed with Davies LJ. I think that the decision was wrong, for
it does not appear to me from the facts set out in the report of the case that
any payment was either accepted or demanded just for supplying addresses.
The third and
final case to which I must refer is Arthur Lawrence and Arthur Lawrence
Agencies Ltd v Sinclair-Taylor,* where on October 24 1973 the
Divisional Court dismissed appeals against convictions for offences against
section 1 (1) (b) of the Act. There the respondent was looking for
accommodation, and was told that the appellants had on their register a flat to
let at £12 a week and if he was given its address he would be required to give
the company £18, one and a half times the weekly rent. The respondent was given
the address, went to the premises and liked them, and then returned to the
appellants’ office and paid them £18. It seems to have been the case that if
the respondent was not satisfied with the accommodation the £18 would be
returned to him. The respondent had signed a letter stating that he agreed to
deposit with the appellants £18 in respect of fees for services rendered. This
case is on all fours with McInnes v Clarke and has the same
distinguishing feature as that case has from the present one. It was, I think,
rightly decided.
Each summons
in this case charged the appellant with having accepted or demanded money on
the dates stated in consideration for supplying addresses when on each of the
two dates only one address had been supplied. This makes no difference, and I
agree with Lord Widgery when he said in the last-mentioned case that there was
nothing in the context of the Act to prevent the operation of the provision in
the Interpretation Act 1889 by which the plural is to include the singular.
Agreements between accommodation agencies and their clients who seek
accommodation must fall into one of the following categories: agreements in
writing, oral agreements, and agree-
wholly in writing and is genuine, then one only has, as here, to construe the
agreement to determine what was the bargain made. No matter into which category
the agreement may fall, if it provides for the payment of money either before
or after the supplying of an address but the payment is not due only when
suitable accommodation is found and rented, then, even though the payment is
called a deposit and returnable if the client is not satisfied and no tenancy
results, it is not difficult to conclude that the payment was for supplying the
address and that if such payment is demanded or accepted, an offence is
committed. As in my view it was not proved in this case that any payment was
demanded or accepted for the supplying of an address, and as it was proved that
the payments were accepted or demanded not for that but for finding Miss
Nichols suitable accommodation and were due only on her entering into a
tenancy, in my opinion she was wrongly convicted, and this appeal should be
allowed with costs in this House and the Divisional Court.
LORD WILBERFORCE:
For the reasons given by my noble and learned friend, Viscount Dilhorne, I
agree that this appeal should be allowed.
LORD DIPLOCK:
I have had the advantage of reading the speech of my noble and learned friend,
Viscount Dilhorne. I agree with it and would therefore allow the appeal.
LORD SIMON OF
GLAISDALE: I have had the advantage of reading in draft the speech prepared by
my noble and learned friend, Viscount Dilhorne. I agree with it, and I would
therefore allow the appeal.
