Barclays Bank Ltd v Roberts

JurisdictionEngland & Wales
Judgment Date30 July 1954
Judgment citation (vLex)[1954] EWCA Civ J0730-1
CourtCourt of Appeal
Date30 July 1954

[1954] EWCA Civ J0730-1

In the Suprime Court of Judicature,

Court of Appeal.


The Master of the Rolls, (Sir Raymond Evershed)

Lord Justice Jenkins

Lord Justice Hodson.

Barclays Bank, Ltd.

Counsel for the Appellant: MR C.L. COLLYMORE, instructed by Mr Alban P.B. Could.

Counsel for the Respondents: MR L. JELLINER, instructed by Messrs Wainwright & Co.


The Respondents, Barclays Bank, Ltd., (hereinafter called the Bank) have at all material times been, in their capacity of Executors and Trustees of a deceased Testator, proprietors for a term of years of premises No. 17, Castellain Road, Maida Vale, London. The premises had been sub-leased, and at the time of the commencement of the proceedings next mentioned the sub-lease had become vested in one Mrs Eliza Amelia Winnearls. The Bank, alleging that Mrs Winnearls was seriously in arrears with her rent, and also in breach of covenants in her lease, on the 9th December, 1953, issued o speedily endorsed Writ against her claiming, on the basis of having validly forfeited the lease, possession of the premises and other relief, Mrs Winnearls did not defend the proceedings, and on the 29th December, 1953, the Bank obtained judgment in default of appearance for possession of the premises and for arrears of rent, damages, and costs.


Various persons appear to have been in occupation of parts of the house. Among these persons was the present Appellant, Mr George Roberts. The Bank's solicitors, claiming that any under-letting by Mrs Winnearls or her predecessors in title had been in breach of covenant and that none of the persons I have mentioned had accordingly any right to remain in occupation, wrote to them all on the 22nd January, 1954, informing then of their judgment, and that they proposed, if any of them remained in occupation on after January 30th, to apply for a Writ of Possession.


The Appellant by his solicitor wrote to the Bank's solicitors on the 29th January claiming that the Appellant was (contrary to the Bank's contention) a lawful sub-tenant within the meaning and subject to the protection of the Rent Acts, and at an interview on February 2nd between the solicitors for the Appellant and the Bank the former contended that any irregularity in the under-lettingto the Appellant had long since been Waived. The Bank's advisers did not then accept the validity of the Appellant's contention, and on the 8th February they applied for and obtained a Writ of Possession pursuant to order 47, Rule 1. That Rule is in the following terms: "(1) A judgment or order that a party do recover possession of any land may by leave obtained on ex parts application to the Court or a Judge supported by affidavit, be enforced by writ of possession in manner immediately before November 1, 1875, used in actions of ejectment in the superior Courts of common law. (2) Such leave shall not be given unless it is soon that all persons in actual possession of the whole or any part of the land have received such notice of the proceedings as may be considered sufficient to enable them to apply to the Court for relief or otherwise." The reference will be noted to November 1, 1875.


The Bank duly complied with the second paragraph of the Rule, since they proved the sending by their solicitors to all persons in occupation of parts of the house of the letter of January 22nd above referred to the actual Writ was not in evidence, but we have assumed that it took the form set out in Appendix H to the Rules of the Supreme Court; that is, it was addressed to the Sheriff, and after reciting the judgment for possession, commanded the Sheriff to enter the presises and cause the Plaintiffs in the action to have possession thereof.


On the following day, February 9th, the Appellants' solicitor wrote to Messrs Nathan & Company, the Sheriff's officers, asserting again that the Appellant was a lawful under-tenant. He added that the Appellant was no party to the action between the Bank and Winnearls, and "has not been served with notice thereof", a statement of which the Bank later complained as neglecting their solicitors' letter of January 22nd which I have mentioned.The result, however, was that a telephone conversation took place between the Bank's solicitors and Messrs Nathan & Company.


As no evidence was called in the Court below, and as we have been required to decide the case on the inference properly to be drawn from this telephone conversation, it is necessary to set out in full the only record of it, which consists of the Diary entry of the Bank's solicitors. That entry is as follows: "Attending Nathan & Co. When they telephoned with regard to a letter they had received from Roberts' Solicitors; advising them that notice of proceedings had been given and that no application had been made to the Court and in the circumstances as our instructions were that the sub-letting was unlawful they should continue with the ejectment on the 15th."


Messrs Nathan & Company proceeded, following this conversation, to execute their Writ on the 15th February. The events of that day, according to the Pleadings and a further entry in the Diary of the Bank's solicitors, are briefly that the Sheriff's officers effected entry about 2.30 p.m. In the meantime the Appellant had applied for an injunction (as I understand, in the Winnearls action) and obtained in the afternoon a stay of execution. At 5.30 p.m. the Bank permitted the Appellant to re-enter, though they still denied all the Appellant's claims of right. On the 22nd February an Order was made in the Winnearls action giving the Appellant liberty to enter appearance in the action and to defend, at the same time remitting the action to the Marylebone County Court.


The Appellant then put in a Defence to the Bank's claim to possession based upon his being a lawful under-tenant within the meaning of the Rent Restriction Acts. By way of Counterclaim he alleged: "on the 15thday of February, 1954, the Plaintiff" (that is, the Bank) their servants and agents broke and entered the Second Defendant's" (that is, the Appellant's) "said dwelling-house and evicted the Second Defendant there from."


He claimed damages accordingly, his Particulars of Damage referring to the cost of his applications to the Court, for an injunction and otherwise.


When the cause came for trial before His Honour Judge Bensley Wells, the Bank for the first time admitted the validity of the Appellant's claim to be a lawful undertenant. They assented, accordingly, to the dismissal of their notion against the Appellant with costs. The Bank resisted, however, the Appellant's Counterclaim, and this was tried without oral evidence being given, both aides conceding that the facts were as they appeared in the Pleadings and the correspondence and as I have stated then, The learned County Court Judge was of opinion that on such facts the case was governed by the case in this Court of Williams v. Williams and Nathan, reported in 1937 All England Reports, Volume 2, at page 559, and he dismissed the Appellant's Counterclaim with costs.


The Appellant now appeals against that judgment, the sole ground of his appeal being that the Bank must be treated, as a consequence of the telephone conversation between their solicitors and Nathan & Company (according to the true interpretation of the Diary entry which I have read) as having become the principal of the Sheriff's officers when the latter evicted the Appellant and took possession of his dwelling-house. If this view is right, then it appears to be conceded by the Bank that the damages claimed flowed naturally from the wrongful act of trespass which had been committed. I emphasise that...

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6 cases
  • South East Enterprises (Singapore) Pte Ltd v Hean Nerng Holdings Pte Ltd
    • Singapore
    • High Court (Singapore)
    • 31 May 2012
    ...[1968] 2 QB 811 (refd) Awtar Singh s/o Margar Singh v PP [2000] 2 SLR (R) 435; [2000] 3 SLR 439 (refd) Barclays Bank Ltd v Roberts [1954] 1 WLR 1212; [1954] 3 All ER 107 (refd) Caidan, Re [1942] Ch 90 (refd) Carter v Simpson 328 F 3d 948 (refd) Cook, Re (1894) 63 LJ QB 756 (refd) Curtis v M......
  • Sunrose Ltd v Othneil Martin and Felix Mitchell
    • Jamaica
    • Supreme Court (Jamaica)
    • 25 April 2008
    ...possession, unless the bailiff, at the landlord's request takes some action outside the scope of the writ of possession. In Barclays Bank Ltd. v Roberts [1954] 2 All E.R. 107, the sheriff acted on the advice of the landlord's solicitors in evicting a sub-tenant who was subsequently proved t......
  • South East Enterprises (Singapore) Pte Ltd v Hean Nerng Holdings Pte Ltd
    • Singapore
    • Court of Appeal (Singapore)
    • 15 March 2013
    ...247 (refd) Avenell v Croker (1828) M & M 172; 173 ER 1120 (folld) Baker v Wicks [1904] 1 KB 743 (refd) Barclays Bank Ltd v Roberts [1954] 1 WLR 1212; [1954] 3 All ER 107 (refd) Baylis v Bishop of London [1913] 1 Ch 127 (refd) Caidan, Re [1942] Ch 90 (refd) Chedin Mohamed Hashim v Teoh Ong T......
  • Yu Wing Kan v Lau Shuk Lan
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 12 June 1990
    ...found against the applicant. We are fortified in this view by the reaction of Lord Evershed M.R. in Barclays bank Ltd. v. Roberts [1954]1 W.L.R. 1212 (C.A.) to the conduct of a statutorily protected sub-tenant (Roberts) who held back from taking proceedings in not dissimilar circumstances u......
  • Request a trial to view additional results

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