Ainsbury v Millington
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Ackner,Lord Oliver of Aylmerton,Lord Goff of Chieveley |
| Judgment Date | 12 March 1987 |
| Judgment citation (vLex) | [1987] UKHL J0312-1 |
| Date | 12 March 1987 |
| Court | House of Lords |
[1987] UKHL J0312-1
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Ackner
Lord Oliver of Aylmerton
Lord Goff of Chieveley
House of Lords
My Lords,
The appellant lived with the respondent as his mistress and bore him a child on 19 December 1983. The Basingstoke and Deane Borough Council granted them the joint tenancy of a council house at 24 Marlowe Close, Popley. In September 1984 the respondent was sentenced to 18 months youth custody. While he was in custody the appellant married another man who moved in to 24 Marlowe Close with her. When the respondent was released he returned to 24 Marlowe Close and the appellant and her husband moved out. They went to live with the appellant's mother. The accommodation available to them there was unsatisfactory. In July 1985 the appellant applied to the Basingstoke County Court for custody of the child and for an injunction requiring the respondent to vacate 24 Marlowe Close. The judge awarded interim custody of the child to the appellant, but held that he had no jurisdiction to grant the injunction. The appellant's appeal to the Court of Appeal was dismissed on 8 August 1985 [1986] 1 All E.R. 73. On 19 February 1986 leave to appeal was granted by your Lordships' House. On 14 March 1986 the local authority obtained an order for possession of 24 Marlowe Close and in fact resumed possession in June. Meanwhile the local authority granted the appellant and her husband the tenancy of a different council house on 28 April 1986. The respondent is now once again in custody serving a sentence of imprisonment. As one might expect, both parties have throughout the proceedings been legally aided with nil contributions and no order for costs, save for legal aid taxation, had been made in the courts below.
When the appeal was called on for hearing before the Appellate Committee your Lordships required to be satisfied that the appeal could properly be entertained having regard to the termination of the parties' tenancy of 24 Marlowe Close to which the respondent's case had directed attention. The principle was clearly stated by Viscount Simon L.C. in Sun Life Assurance Company of Canada v. Jervis [1944] A.C. 111, 113-114, where he said:
"I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way. If the House undertook to do so, it would not be deciding an existing lis between the parties who are before it, but would merely be expressing its view on a legal conundrum which the appellants hope to get decided in their favour without in any way affecting the position between the parties. … I think it is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue."
The Sun Life case was one where the original issue between the parties related to the terms of a policy of insurance and...
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...statement of issues should be fairly stated: supra n 84 at 73. 91 See eg, E Barry Prettyman, supra n 5 at 288. 92 Ainsbury v Millington [1987] 1 WLR 379 at 381. 93 [1991] SLR 661 at 666. 94 This was in the context of cross-examination but it applies with equal (if not more) force to appeals......
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...text at note 3. 54 Considered by the court at trial. 55 See O 18, r 13(1). 56 See O 18, r 14. 57 See, for example, Ainsbury v Millington[1987] 1 WLR 379; National Coal Board v Ridgway[1987] 3 All ER 582; Summer v William Henderson[1963] 1 WLR 823; Royster v Cavey[1947] KB 204. 58 Ascherberg......
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