Forfeiture for non-payment of rent–Judge right to adjourn case for further evidence as to tenant’s means, but wrong to grant subsequent adjournment on tenant producing virtually no basis for relief–Mandamus nevertheless refused–Every reason to assume landlord would shortly obtain order at resumed hearing
In these
proceedings Mr Mark William Gerard Wathen and others, the trustees of certain
property in Norfolk, applied for an order of mandamus directed to His Honour
Judge Adrian Head requiring him to hear and determine according to law their
action against Sir Christopher Robert Meadows White, of Hill House, Northrepps,
Norfolk, for possession of Hill House and arrears of rent.
Mr L Marshall
(instructed by Sharpe, Pritchard & Co, agents for Mills & Reeve, of
Norwich) represented the applicants, and Mr H K Woolf (instructed by the
Treasury Solicitor) appeared as amicus curiae. The respondent was
neither present nor represented.
Giving the
first judgment, WATKINS J said that in April 1971 the applicants let Hill House
to the respondent for a term of 25 years. The lease contained the usual proviso
for forfeiture on non-payment of rent. Unhappily the respondent, having gone
into occupation, defaulted in his payment of rent, with the result that he
forfeited his lease. The applicants then applied to the county court for
possession and arrears of rent. The matter came before His Honour Judge Head
sitting at Norwich on October 2 1975. The applicants were represented by a solicitor;
the respondent was not represented by solicitor or counsel, but was present in
person. He admitted he was in arrears with the rent. Neither the applicants nor
the respondent sought an adjournment at that hearing, but the judge ordered an
adjournment, as he was entitled to do provided he acted judicially. In
adjourning the matter the judge invited the solicitor acting for the applicants
to contact solicitors for the respondent. The purpose of that was to gain
information as to whether or not the respondent would be in a position to pay
the arrears. The solicitor did as he was asked by the judge, and received
information that the respondent might be in a position to pay the arrears in
the near future. That information was given to the judge on the resumed hearing
in December 1975. Once again the judge did not make a decision on the case.
What he did was to further adjourn the matter until February 6 1976. He also
made an order, the purport of which was to recite that the respondent had given
the court an undertaking to assign over to the applicants so much as was
received by him from other trustees as would cover the arrears of rent.
The judge was
entitled to adjourn the hearing on his own motion, and he (his Lordship)
thought that there could be no criticism of the first order for an adjournment,
since the court was not at the time in a position to be able to judge with any
degree of certainty the period which should be given the respondent to enable
him to comply with the terms of the lease and pay off the rent arrears. That
left the matter of the second adjournment. At any time after the first hearing
it had been open to the solicitors for the applicants to seek a further hearing
before the judge. That was done, and when the matter was restored to the judge’s
list evidence was tendered to the effect that there was some possibility of
moneys coming to the respondent from a trust but no indication of when it would
arrive. A judge had considerable power to assist any person brought before him
for forfeiture based upon non-payment of rent, but what he was called upon to
do was to make the necessary order once it had been established the plaintiff
had made out his case. Although the length of time to be allowed to a defendant
was a discretionary matter, that in no way diminished the duty of a judge to
proceed to judgment at the instance of the plaintiff once the case had been
made out. He (his Lordship) had reached the conclusion that the applicants had
succeeded in establishing their case at the adjourned hearing, and that
accordingly an order for possession should have been made in December.
There remained
the question whether the discretionary remedy of mandamus should issue. There
was much to be said for allowing an order to go, but whether so Draconian a step
was necessary was a matter not free from question. There was every reason to
suppose that in a few days’ time, on February 6, the judge would carry out his
duty, and in the circumstances it appeared that there was no need for a
prerogative order.
Agreeing, LORD
WIDGERY said that the judge had been motivated by no desire other than to
produce justice and fairness between the parties, but that had resulted in his
being unfair to the landlords. The first mistake he had made was not to remind
himself there was a duty upon him to make the order. He had not wrongly
exercised his discretion in adjourning the case in October, when there were
vague possibilities that the tenant might come into funds. By the time December
was reached, however, it was really obvious that no moneys were available. The
judge should then have gone on and given judgment for the applicants.
Also agreeing,
KILNER BROWN J said that he was confident that the judge would exercise his
discretion properly when the hearing was resumed in February.
The
application was dismissed, no order being made as to costs.
