Housing Act 1980, sections 33 and 34 — Proceedings for possession of dwelling-house let under a secure tenancy — Notice in prescribed form under section 33(2) a condition of proceedings being entertained — Appeal by tenant from dismissal by county court judge of her summons to strike out the action brought by her council landlords — Appellant contended that as the council had not served a notice complying with section 33(2), the court had no jurisdiction to entertain the council’s proceedings for possession — Section 33(2) provided that the notice must be in the form prescribed by regulations and must state the ground on which the court is to be asked to make an order for possession ‘and give particulars of that ground’ — The regulations (The Secure Tenancies (Notices) Regulations 1980 (SI 1980 no 1339)) prescribed a form which required the ground to be stated in full and then required ‘the reasons for taking this action’ to be stated — In this respect the form was ‘slightly a trap’ because ‘the reasons for taking this action’ was a cryptic reference to the requirement in section 33(2) to ‘give particulars of that ground’ — The notice which was served on the appellant tenant, after correctly referring to the ground for possession as being ground 1 in Schedule 4 to the Housing Act 1980, namely, rent due not paid etc, went on to say in para 4 ‘The reasons for taking this action are non-payment of rent’ — It was submitted on behalf of the tenant that this was not a compliance with the requirement in section 33(2) to ‘give particulars of that ground’, as it was a mere repetition of part of the ground — Held, after considering decisions on ‘particulars’ under former Agricultural Holdings Acts, Re O’Connor and Brewin’s Arbitration and Jones v Evans, that the notice served by the council did not comply with section 33(2) — That subsection required a specification sufficiently informative to tell the tenant what had to be done to put matters right and nothing less than a statement of the amount of rent claimed to be in arrear would suffice — The council’s claim should have been struck out — Appeal allowed
This was an
appeal by Mrs Sandra Joyce Jones, tenant of a dwelling-house at 36 Dartington
Fields, Torrington, Devon, from the dismissal by Judge Neville at Barnstaple County
Court of her appeal from the refusal of the registrar to strike out the action
of the plaintiffs, the present respondents, Torridge District Council, for
possession of the dwelling-house.
J M Bowyer
(instructed by Lovell Son & Pitfield, agents for Pethybridges & Best,
of Torrington, Devon) appeared on behalf of the appellant; G Stephenson
(instructed by Sharpe Pritchard & Co, agents for Julian M Wyatt,
solicitor’s department, Torridge District Council, Bideford) represented the
respondents.
Giving judgment,
OLIVER LJ said: This is an appeal from a judgment of His Honour Judge Neville
given in the Barnstaple County Court on January 14 1985 dismissing the
appellant’s appeal from the registrar who had dismissed her summons to strike
out the respondent’s action against her for possession of a dwelling-house.
The facts, so
far as they are material to this appeal, are these. On April 11 1983 the
appellant became what is known as the ‘secure tenant’, as defined by the
Housing Act 1980, of a property at 36 Dartington Fields, Torrington, Devon, of
which the respondent council is the landlord. It seems that up to February 8
1982 her husband had been the tenant, but that tenancy was terminated on
February 8 1982 at which time there were arrears of rent owing to the respondent
of some £242.
After the
termination of that tenancy, the appellant (as I understand the position)
remained in possession of the house — I think her husband had left her — but
did not pay the full rent payable
amounting to £114.78. On April 11 1983, however, the respondent council
formally accepted the appellant as herself being the tenant of the property. It
is not in dispute that since then she has been the secure tenant of the
property within the meaning of the Act. Thereafter, further arrears of rent
built up amounting at November 30 1983 to some £200.96.
Section 33 of
the Housing Act 1980 is in the following terms, so far as material. Subsection
(1) prohibits the court from even entertaining proceedings for possession
except in certain circumstances. It is in these terms:
(1) The court
shall not entertain proceedings for the possession of a dwelling-house let
under a secure tenancy or for the termination of a secure tenancy, unless the
landlord has served upon the tenant a notice complying with the provisions of
this section and, if the tenancy is a periodic tenancy — (a) the proceedings
are begun after the date specified in the notice; and (b) the notice is still in
force at the time the proceedings are begun.
So the
starting point there is that you have to have service of the notice and you
have to have that notice as a notice which complies with the provisions of the
section.
Subsection (2)
then goes on to deal with the requirements of the notice. It is in these terms:
A notice
under this section must be in a form prescribed by regulations made by the
Secretary of State and must specify the ground on which the court will be asked
to make an order for the possession of the dwelling-house or for the
termination of the tenancy and give particulars of that ground.
It provides in
subsection (3):
If the secure
tenancy is a periodic tenancy the notice — (a) must also specify a date after
which proceedings for the possession of the dwelling-house may be begun: and
(b) ceases to be in force twelve months after the date specified in it; and the
date specified in it must not be earlier than the date on which the tenancy
could, apart from this Act, be brought to an end by notice to quit given by the
landlord if the notice to quit were given on the same date as the notice under
this section.
It will have
been noticed that under subsection (2) the notice has to specify the ground on
which the court will be asked to make the order. We get some elucidation of
what is meant by that in section 34. This is the section which, having
postulated that the court has been satisfied that it can entertain the action
at all under section 33, places a restriction upon the court’s ability in those
proceedings to make an order for possession. Subsection (1) provides as
follows:
The court
shall not make an order for the possession of a dwelling-house let under a
secure tenancy except on one or more of the grounds set out in Part I of
Schedule 4 to this Act and shall not make such an order on any of those grounds
unless the ground is specified in the notice in pursuance of which proceedings
for possession are begun
then there is
a proviso
but the
grounds so specified may be altered or added to with the leave of the court.
Subsection (2)
imposes conditions on the making of such an order and, so far as relevant for
this purpose, we need only refer to subsection (2)(a) which provides: ‘The court
shall not make the order — (a) on any of grounds 1 to 6, unless the condition
in subsection (3)(a) below is satisfied.’
Subsection (3)(a) provides: ‘The conditions are — (a) that the court
considers it reasonable to make the order.’
The grounds,
as indicated, are contained in Schedule 4. I think I need read only ground 1
because that is the only one which is material to this case. It provides: ‘Any
rent lawfully due from the tenant has not been paid or any obligation of the
tenancy has been broken or not performed.’
We shall have to come back to the precise terms of subsection (2) of
section 33 again, but for the moment I will go on with the recitation of the
facts.
On October 12
1983 the respondents served on the appellant a notice under section 33 of their
intention to seek possession. It is not in dispute that that notice followed
the form required by the regulations laid down by the Secretary of State. Those
are contained in a statutory instrument no 1339 of 1980 known as The Secure
Tenancies (Notices) Regulations. The regulations provide:
2(1) The
notice to be served on a secure tenant under section 33 of the Housing Act 1980
before the court can entertain proceedings for possession of a dwelling-house
let under a secure tenancy which is a periodic tenancy
which is this
case
shall be in
the form specified in Part I of the Schedule to these regulations, or in a form
substantially to the same effect.
The form
provides five paragraphs: 1, which deals with the name of the tenant; 2, the
name of the landlord; 3, which provides: ‘Possession will be sought on
Ground(s) . . . of Schedule 4 to the Housing Act 1980 which read(s)’ and in
brackets there appear the words ‘[give text of Ground(s) in full]’; 4, the
particulars which are required by subsection (2). That is expressed on the form
in a somewhat cryptic way because all that is said is: ‘The reasons for taking
this action are:’. So, in a sense, the form is slightly a trap for somebody who
has not read the section carefully. Para 5 then deals with the date on which
court proceedings will be begun. There are spaces for the signature and so on.
In this
particular case, the notice which was served on the appellant gave her name
correctly and specified that the respondent (giving its address) was going to
seek possession. Para 3, which was in accordance with the statutory form, was
in these terms:
Possession
will be sought on Ground 1 of Schedule 4 to the Housing Act 1980 which reads:
Any rent lawfully due from the tenant has not been paid or any obligation of
the tenancy has been broken or not performed.
So the
draftsman of that notice followed the regulated form which I have just read.
Then, under para 4, we find this statement:
The reasons
for taking this action are non-payment of rent.
Thereafter, on
August 29 1984 — almost a year later but not quite — the respondent issued a
summons in the Barnstaple County Court accompanied by some particulars of
claim. The particulars of claim are, oddly enough, dated August 24, before the
commencement of the proceedings. I do not know if anything turns on that. In
the particulars of claim, they specified arrears of £144.14 up to November 14
1983. That contrasts with the figures given in a letter to the appellant dated
November 30 1983 from the chief housing officer which contains the figures to
which I have already referred earlier in this judgment. Following the letter of
November 30 the appellant indicated that she called at the council office in
December 1983, paid a sum of £300 and obtained a receipt. Presumably it was for
that reason that no proceedings were in fact commenced in 1983.
But, on July
30 1984 a further letter was addressed to the appellant in these terms:
I refer to my
previous letters which unfortunately have resulted in no long-term improvement
in your rent account, the balance outstanding when the accounts were last
closed on Thursday July 27 1984 being £327.48.
If the
account is not paid up to date by Thursday August 9 1984 and equally important
thereafter all payments received when due, further action involving your
continued occupation of council property will be considered.
In view of
the serious position now reached, if you anticipate any difficulty in clearing
the account by the date stated and thereafter paying the rent when due, I
suggest you make an appointment to see me without delay as this is now going to
Court. Notice still in effect. Yours faithfully.
It is signed
by the housing officer.
It was
following that that these proceedings were issued. On December 10 1984 the
appellant issued a summons to strike out proceedings which simply said:
The grounds
of this application are that the plaintiff having failed to serve on the
defendant a notice complying with the provisions of section 33 of the Housing
Act 1980 this court has no jurisdiction to entertain the plaintiff’s summons
for possession.
The reason why
it was claimed that the notice did not comply with the section was the absence
of any particulars of the rent due. As I have already pointed out, in the
notice all that was said under the space left for reasons was ‘non-payment of
rent’.
The registrar
dismissed the application and an appeal to the judge failed. In a very short
judgment he dealt with it as follows:
These notices
involve section 33 of the Housing Act 1980 and are, I accept, commonly used by
local authorities as warnings or even threats which, if successful in the sense
that the tenant is persuaded to discharge rent or other liability, are allowed
to expire. In this case, the appellant says she does not have to show injustice
or prejudice as result of failure to show rent due. Defendant submits
embarrassed as did not know what sum due at date of notice or otherwise. Simple
to see from rent card. No injustice or embarrassment caused. Particulars given
sufficient for purposes of section 33 and I so find and dismiss appeal.
He then made
an order for costs which was not to be enforced without leave. He refused leave
to appeal to this court, although leave was subsequently granted by this court.
The point is
really a very short one. It is simply this: aye or no, does the statement in
the notice which was actually served on the appellant — non-payment of rent —
constitute sufficient particulars to comply with the provisions of section
33(2)? It is perfectly plain, I think,
that that subsection differentiates,
sought and the particulars of that ground. Mr Bowyer points out, as he is
entitled to do, that the particulars of the ground upon which the respondent
relies are simply a restatement of part of the grounds themselves; they do not
convey anything at all to the appellant about the amount outstanding, up to
what date it is outstanding or anything of that sort.
We have been
referred to two cases which are not directly concerned with this particular
problem but which deal with a somewhat analogous problem which has arisen under
section 18 of the Agricultural Holdings Act 1920 or section 16 of the Act of
1923, those two sections being, for material purposes, in the same terms.
The first case
to which we were referred, which is the second in historical date, was that of Re
O’Connor and Brewin’s Arbitration [1933] 1 KB 20. I can take the facts from
the headnote:
The
Agricultural Holdings Act 1923, section 16(1), provides that ‘any question or
difference arising out of any claim by the tenant of a holding against the
landlord for compensation payable under this Act . . . shall be determined . .
. by a single arbitrator in accordance with the provisions set out in the
Second Schedule.’ Section 16(2) provides
that ‘any such claim as is mentioned in this section shall cease to be
enforceable after the expiration of two months from the termination of the
tenancy unless particulars thereof have been given by the . . . tenant to the
landlord . . . before the expiration of that period’.
That is the
significance of this case in the present context because it required
particulars to be given.
A tenancy
having been determined by notice to quit expiring on September 29 1930, the
tenant gave notice of (among others) a claim for disturbance, and on November
20 1930 furnished particulars in which particulars of claim for disturbance
were ‘Disturbance two years’ rent £514.’: Held (reversing the decision of the
county court judge) that no sufficient particulars had been delivered and
therefore the claim was barred.
Lord Hanworth
MR, in his judgment at p 26, says this:
It is plain,
therefore, that either party must give to the other something amounting to
‘particulars’ of the claim. What, then, is meant by ‘particulars’? I think it is right to say that there cannot
be, in respect of all cases, a precise and accurate definition of what those
particulars ought to be. But the nature of the particulars is that they operate
to limit inquiries to the matters set out in the particulars. I agree, as laid
down in Jones v Evans [1923] 1 KB 12
that is the
next case to which I shall have to refer
that the
requirement of ‘particulars’ involves something of a rather loose description.
There then
follows a discussion as to whether, under the statute, the particulars had to
be in writing or could be delivered orally.
Having
concluded that discussion, the Master of the Rolls continued (at the bottom of p
27):
However, the
fact remains that these particulars need not be in writing, and that they may
be of a loose nature; but they must still fulfil Bankes LJ’s test and contain
information as to the nature of the claim as distinguished from the class of
claim. Warrington LJ says that the particulars are sufficient if they give ‘an
indication to the landlord or the tenant, as the case may be, of the particular
kind of claim which is going to be made in order that he may have an
opportunity of himself examining the subject matter and seeing what evidence he
will have to adduce, or what information he will have to give to the
arbitrator’. That is, to my mind, a lucid and sufficiently precise expression
of what is meant by ‘particulars’ in this Act. The word connotes something that
is particular, and not merely a generality.
I pause to
remark that of course what the court was there concerned with in that Act was
particulars which were needed for an arbitration. It was not a case where there
was any sort of precondition, but if the particulars had not been given, then
after a certain period the claim would become void.
The Master of
the Rolls continued at p 29:
When I turn
back to section 16(2), I ask myself whether or not, in giving the particulars,
which in the present case were ‘Disturbance, two years’ rent’, he has fulfilled
the standard laid down by Warrington LJ, and whether by saying ‘Disturbance,
two years’ rent’ he has given to the landlord an indication of the particular
kind of claim which he is going to make, in order that the landlord may have an
opportunity of examining such matters and seeing what evidence he will have to
adduce or what information he will have to give to the arbitrator. It seems to
me plain that the words that are used are general, as opposed to or in
contradiction to particulars, and while I do not at all intend to lay down any
precise rule as to what particulars must be given, it will be well to bear in
mind those words of Warrington LJ, and to remember the test, which I have
suggested earlier, that the particulars must limit the inquiry by showing what
is the issue between the parties.
Slesser LJ, at
p 32, says:
In my view
the particulars in the present case entirely fail to state the nature of the
claim, as distinct from the class of the claim, and, therefore, I cannot see
how it would have been possible for the landlord, merely having been given a
class of claim and not the nature of the claim, to have had those rights which
Warrington LJ, in Jones v Evans, points out that he is entitled
to.
He quotes
again that passage from the judgment of Warrington LJ which has already been
quoted.
Romer LJ was
to the same effect. He said at p 34:
I myself
should be always willing to treat a statement as complying with the provision
of the subsection, so long as it was possible, without undue exaggeration, to
dignify the statement with the name of ‘particulars’, and so long as the
statement was reasonably giving effect to the intention of the legislature.
That intention was, to use the language of Warrington LJ in Jones v Evans,
to give an opportunity to the person against whom the claim was made of himself
examining the subject-matter, and seeing what evidence he would have to adduce
or what information he would have to give to the arbitrator. The statement by a
tenant that he claims compensation for disturbance, whether he quantifies his
claim by reference to one year’s rent or to two years’ rent, does not in my
opinion comply with the subsection. It is a very general statement of the class
of claim that is being made; it cannot be dignified by the name of
‘particulars’.
I have already
mentioned that that was in the context of the Agricultural Holdings Act and in
the context of providing for the party to a proposed arbitration guidance as to
what sort of evidence he ought to produce before an arbitrator.
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 upon 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.
As Mr Bowyer
has pointed out, a claim based on arrears of rent may very well conceal a dispute
about what the correct amount of the rent is. It seems to me almost axiomatic
that where a statute requires particulars of a ground such as this ‘non-payment
of rent’ to be stated, it must be that nothing short of a specification of the
amount which is claimed as being in arrear could, in my judgment at any rate,
amount to a proper particular of the ground upon which possession was being
sought.
I said I would
refer to the case of Jones v Evans [1923] 1 KB 12, but I do not
think in fact there is anything in Jones v Evans (which went the
other way because the particulars there were judged to be sufficient) beyond
the statements of Warrington and Bankes LJJ which have been referred to, save
only this. Bankes LJ at p 18 of the report, in relation to the particular case,
said:
I do not hold
up this document as one to be copied, but I cannot say that it does not give
particulars of the landlord’s claim within the meaning of the subsection. It
may be that they are so general that the arbitrator in the exercise of his
discretion may require further information to be given, but that in my opinion
is not enough to deprive the document of its character of ‘particulars’.
Particulars may be scanty and require to be amplified, but they still remain
particulars provided they contain information as to the nature of the claim as
distinguished from the class of the claim.
It is Mr
Stephenson’s contention that the notice here is a notice which is merely a
necessary preliminary to proceedings. It is a notice which does not have any
contractual effect. It is a notice which has to be given on one of the
statutory grounds. His contention is when the statute speaks of ‘giving
particulars of that ground’, and particularly in the case (and it is the only
case we have to consider) of a ground which itself contains within it
alternative grounds, the specification of one of those alternative grounds is a
sufficient particular of the claim.
He has put his
submissions, if I may say so, with vigour and ability. He reduces them to five
points: first, the notice does not form the basis of a claim because the tenant
does not, at that stage, have to meet a case at all; second, the nature of the
notice is merely as a threat and it should therefore be sufficient for the
tenant to know in general terms what he is threatened with; third, the Act does
not use the words ‘full’ or ‘precise’ or ‘detailed particulars’, but merely
‘particulars’; fourth, the particulars given do, in fact, in this case cut down
the ground in the Schedule to one of the two possible alternatives and they do,
he says, therefore direct the tenant’s mind to the general nature of the
dispute which is being raised; fifth, he points out the danger of this court
condescending to any definition of
much to heart.
Nevertheless,
at the end of it all, I confess that for my part I find myself wholly
unpersuaded that the mere recitation, almost in the same words, of a part of
the ground of which particulars are required to be given can amount to
particulars within the section. I cannot think the legislature can have
intended that. 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(2). Accordingly,
the learned registrar and the learned judge in the county court were in error
in not striking out the claim because, the notice not complying with the
subsection, the court was then prohibited from entertaining the proceedings at
all.
I therefore
would allow the appeal.
RALPH GIBSON
LJ agreed that the appeal must be allowed for the reasons which were given by
Oliver LJ and did not add anything.
The appeal
was allowed with costs including costs before the judge below and the
registrar. Legal aid taxation was granted.
