Akram v Adam
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE JACKSON,LORD JUSTICE CHADWICK,SIR DENIS HENRY |
| Judgment Date | 30 November 2004 |
| Neutral Citation | [2004] EWCA Civ 1601,[2002] EWCA Civ 1679,[2002] EWCA Civ 812 |
| Docket Number | No B/2002/0178,Case No: B2/2004/0859,B2/2002/0178/A |
| Court | Court of Appeal (Civil Division) |
| Date | 30 November 2004 |
[2002] EWCA Civ 1679
Lord Justice Chadwick and
Sir Denis Henry
B2/2002/0178/A
B2/2002/0178
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COLCHESTER COUNTY COURT
(His Honour Judge Brandt)
Royal Courts of Justice
Strand
London WC2
Ms Jane Evans-Gordon (instructed by the Bar Pro Bono Unit, London WC2) appeared on behalf of the Appellant Defendant.
Mr John Robson (instructed by Messrs David Perry, Chelmsford, Essex) appeared on behalf of the Respondent Claimant.
5 Moulsham Drive is a two-storey semi-detached house on the outskirts of Chelmsford. At the back of the house there is a single storey extension with a sloping roof. The appellant, Mr Benjamin Adam, occupies a room on the ground floor of the house. The room has been formed by the inclusion of the extension. The remainder of the house, which has three bedrooms on the first floor, is occupied by the respondent, Mr Mohammed Akram, and some members of his family. Mr Adam shares with Mr Akram and his family the use of the kitchen, which is on the ground floor, and the bathroom, which is on the first floor.
Mr Adam occupies his room under a tenancy which, when granted in or about January 1983, was a protected tenancy for the purposes of the Rent Act 1977. Mr Akram, and a Mr Mohammed Aslam, purchased the house in 1992 subject to whatever tenancy Mr Adam then had. Mr Aslam's interest in the house was transferred to Mr Akram in October 1996. Mr Akram is now registered at the Land Registry as the sole owner. It is said on behalf of Mr Akram that, by the time of the purchase in 1992, the contractual tenancy had determined; and that Mr Adam was then, and has remained, in occupation as a statutory tenant under section 2 of the 1977 Act. It is not clear whether Mr Adam accepts that his contractual tenancy has determined; but, for the purposes of this appeal, nothing turns on whether he now occupies his room as a protected tenant or a statutory tenant. It is common ground that he is entitled to the security of tenure afforded by Part VII of the Rent Act.
Section 98(1) of the Rent Act is in these terms:
"Subject to this Part of this Act, a court shall not make an order for possession of a dwelling-house which is for the time being let on a protected tenancy or subject to a statutory tenancy unless the court considers it reasonable to make such an order and either—
(a)the court is satisfied that suitable alternative accommodation is available for the tenant or will be available for him when the order in question takes effect, or
(b)the circumstances are as specified in any of the Cases in Part 1 of Schedule 15 to this Act.
Case 1 in Part 1 of Schedule 15 includes failure to pay rent, and failure to comply with any obligation of the tenancy.
In May 1997 the landlord, Mr Akram, commenced proceedings in the Chelmsford County Court for possession of Mr Adam's room on grounds which (if established) would have fallen within Case 1. Mr Adam served a defence to those proceedings, denying non-payment of rent and breach of any obligation under the tenancy; and asserting a counterclaim for want of repair, breach of the covenant for quiet enjoyment, assault and harassment. In February 2000 the claim and counterclaim were assigned to the multi-track and transferred to the Civil Trial Centre at Colchester; and the pleadings were amended so as to enlarge the allegations and counter-allegations already made.
It is plain from the matters alleged by way of counterclaim that, by 1997 (if not earlier), relationships between the parties were such that the arrangements under which facilities at 5 Moulsham Drive were to be shared could not be regarded as satisfactory to anyone. Mr Akram's proposed solution to that problem was to convert Mr Adam's accommodation into a self-contained unit, by installing a small kitchen and bathroom within the existing room space and extending the room further into the garden. Those proposals, or some version of them, appear to have been put forward by the beginning of 2001.
The matter was listed for hearing on 4 June 2001. On 30 May it was taken out of the list by order of His Honour Judge Rice. Paragraph 2 of that order required the tenant to inform the landlord, within seven days, whether he would accept an offer said to have been made by the landlord in January 2001. We have not been shown a copy of that offer; and it is not suggested that that offer was ever accepted. We have been shown, however, a copy of a document dated 30 May 2001 in the handwriting of counsel who appeared for the tenant before Judge Rice on that day. The document bears the heading "Proposed Compromise"; and it is signed by counsel for the tenant and by Mr Adam himself. It is not signed by or on behalf of the landlord. It is in these terms:
"Proposed Compromise
1. All money claims and counterclaims dismissed;
2.D to accept suitable alternative accommodation at the premises of a self-contained unit at a fair rent;
3.D currently has a protected tenancy of the large ground floor rear room with shared use of (1) ground floor toilet/shower; (2) ground floor kitchen; (3) first floor bathroom and (4) garden;
4.If the parties are unable to agree on what would constitute suitable self-contained accommodation based upon the two plans which have been prepared, the Court be asked to determine the same having regard to the principles which would apply to a claim for possession based on suitable alternative accommodation pursuant to s.98 of the Rent Act 1977."
There is no reference to those proposals in the order of 30 May 2001 to which I have just referred. But that order gave the landlord permission to amend his particulars of claim; and directed that the matter be restored for hearing on the first open day after 2 July 2001.
On 20 June 2001 the landlord served re-amended particulars of claim—stated to be in addition to his existing claim for possession. The re-amended particulars sought possession on a different ground. They contained the assertion that the landlord "proposes to re-house the Defendant in suitable alternative accommodation which will be available for him when the order in question takes effect." That, if established, would bring the claim for possession within paragraph (a) of section 98(1) of the Rent Act. In a letter dated 24 July 2001 the landlord's solicitors wrote to the solicitors then instructed by the tenant in these terms:
"We would firstly confirm, for the avoidance of doubt, that the pleading served is in addition to our client's claim and not in substitution thereof. In consequence all matters are currently live.
We have seen your letter to Colchester County Court dated 16th July 2001 and given the comments therein, we wonder whether you client intends proceeding with his Counterclaim? With regard to the District Judge's comments, we are of the view that given the fact that any movement relating to the without prejudice correspondence appears to have again ceased, the only way in which this matter is going to be progressed is for a trial date to be listed. This is likely to be some weeks off and will give an opportunity for settlement in the interim, but it will at least ensure that matters do not grind to a halt in respect of your client giving instructions towards settlement as stated previously.
In the circumstances, we would suggest that you write to the Court confirming that you are in agreement that a Trial should be listed, probably in either November or December."
At or about that time the tenant ceased to instruct solicitors. It appears that public funding was withdrawn from him. He took no steps to respond to the landlord's re-amended particulars of claim. On 16 August 2001 the proceedings came before His Honour Judge Brandt. He ordered that the tenant file a defence to those re-amended particulars by 24 August 2001; and directed that, in default, the tenant would be debarred from defending the landlord's claim as pleaded in the re-amended particulars of claim. On 24 August the tenant did serve a further defence resisting an order for possession on the additional grounds set out in the re-amended particulars.
On 19 October 2001 the proceedings came before His Honour Judge Brandt, sitting at Colchester County Court. He was satisfied that, on the material then before him, it would not be appropriate to make a possession order; but that he should declare, in what he described as "general terms", that the landlord's proposals as to the provision of alternative accommodation were reasonable and that the proposed accommodation was "suitable alternative accommodation" for the purposes of section 98(1)(a) of the Rent Act. His order of 19 October 2001 contains a declaration in those terms. The reason why the judge declined to make a possession order on that day was, as he stated, that the plans which the landlord had advanced in support of his proposals were inadequate; in that they did not enable the tenant to see and understand what it was he was to get by way of alternative accommodation. It was to remedy that deficiency that the judge directed the landlord to serve detailed plans and to arrange a site meeting at which the proposals could be discussed—and, if possible, agreed—between the tenant and the landlord's architect. The order of 19 October 2001 made provision for the parties to apply to the court for resolution of matters which they could not agree.
A site meeting took place on 9 November 2001. It was followed by a letter dated 12 November 2001 from the landlord's solicitors, in which were set out the matters said to have been...
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