Claim for possession of part of house — Tenant’s appeal against County Court Judge’s order — Action brought on ground of nuisance or annoyance, para (b) of First Schedule to Rent Act, 1933 — Allegation of undue familiarity with landlady’s daughter — Appeal dismissed
This was an appeal by Mr HJ Ward, the tenant of part of a house in Eynella Road, Dulwich, SE, against the order of Judge Clothier at Lambeth County Court granting possession of the flat to the landlady, Mrs Nellie McNamara Whitbread, who lives in the upper part of the house.
Mr Gerald Reed (instructed by Shindler & Co) appeared for the appellant; Mr HB Figg (instructed by Meaby & Co) represented the respondent.
Mr Reed said that possession was claimed under paragraph (b) of the First Schedule to the Rent Act, 1933, on the ground that Mr Ward had been guilty of conduct which was a nuisance or annoyance to adjoining occupiers. Mrs Whitbread and her two daughters lived in the upper flat and Mr Ward and his wife and child in the ground floor flat. Judge Clothier found that an allegation that Mr Ward, who is 36, had been unduly familiar with Mrs Whitbread’s 16-year-old daughter had been proved. There was, counsel submitted, no evidence of undue familiarity. The incidents of which Mrs Whitbread complained were absolutely trivial. The girl was infatuated with Mr Ward, and was running after him. He was happily married. Counsel contended that there had been no nuisance or annoyance to an adjoining occupier.
‘Unless a new trial is ordered in this case,’ said Mr Reed, ‘the position will be that a landlord whose daughter sets her cap at a male tenant will have an admirable opportunity of getting possession of premises.’
The Court did not call on Mr Figg.
Lord Justice Somervell, giving judgment, said that Judge Clothier decided that what happened amounted to annoyance. Prima facie, the question of what constituted annoyance was one of fact. Mrs Whitbread made a very favourable impression on the Judge, who said:
She gave me the impression of a sensible woman who, prior to the events of November 7, 1951, had been anxious, though not hyper-sensitive, about the apparent hero-worship by her daughter, Helen, of the defendant. She seemed to me to have done all she could to persuade the defendant, tactfully, as the circumstances then no doubt required, to co-operate with her in detaching the immature affections of Helen from the defendant. Her evidence seemed wholly credible.
The Judge also said that Helen answered all questions without hesitation and apparently with complete frankness. Her evidence was that in an alley Mr Ward put his arms around her and kissed her.
“The girl remained with Mr Ward for about half an hour,” said Lords Justice Somervell, “and she did not suggest that she tried to get away, but that was not necessarily inconsistent with her becoming distressed after he had left her. Judge Clothier did not regard Mr Ward as a satisfactory witness and said ‘He gave me a different impression — the reverse of frankness.’”
Lord Justice Somervell continued: ‘The County Court Judge had a difficult task in finding the facts in this case, but I think it is plain that there was evidence on which he could find as he did.’ The only remaining question was one of law. Mr Reed had said that the incident did not occur on the premises but in an alley 100 or 200 yards away.
‘I have come to the conclusion,’ said his Lordship, ‘that in considering annoyance to an adjoining occupier — annoyance of the kind in question in this case — what arises from their being adjoining may properly be considered in the light of an event which took place outside the premises. I think that the Judge was right in holding that undue familiarity, as he found in this case, between a married man and a 16-year-old girl living in the flat above his was a matter which could be brought within the word ‘annoyance’ in the Act. I think that this appeal must be dismissed.’
Lords Justices Jenkins and Morris agreed.