Boissevain v Lindhagen
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MANTELL,LORD JUSTICE KENNEDY |
| Judgment Date | 27 July 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0727-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No B3/2000/5232 |
| Date | 27 July 2000 |
[2000] EWCA Civ J0727-6
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL A STAY OF EXECUTION AND AN
EXTENSION OF TIME WITH APPEAL TO FOLLOW IF GRANTED
Royal Courts of Justice
Strand
London WC2
Lord Justice Kennedy
Lord Justice Mantell
No B3/2000/5232
The Applicant appeared in person
MR M DRAY (Instructed by Hains & Lewis of Haverfordwest) appeared on behalf of the Respondent
: Karl Lindhagen has been occupying a ground floor flat at 40 Newton Road, Paddington, W2 since March 1994.
To begin with the tenant was Patricia Noordhof. The freeholder and landlord was Mr John Boissevain. The agreement between them was for an oral assured tenancy at a monthly rent of £500. As I understand the factual background, after about 9 months the tenancy was transferred to Mr Lindhagen and Miss Noordhof departed the scene.
There is a dispute as to whether any rent was ever paid to anyone. There is no question however that by March 1998 substantial arrears had accumulated. In the meantime another tenant occupying a separate part of No. 40 applied under Section 24 of the Landlord and Tenant Act 1987 for an order appointing him manager of the premises by reason of Mr Boissevain's inability or unwillingness to perform his obligations as landlord. It seems that either Mr Boissevain had suffered a breakdown in health or had fallen on hard times or was simply living abroad and consequently had failed to perform the implied covenants under the agreement.
On 15th April 1996 an order had been made pursuant to that application empowering the applicant in those proceedings —that is the other tenant —to receive the rents and imposing on him the contractual obligations of a landlord. It did not grant to the applicant in those proceedings the power to bring an action for possession or at any rate the order was silent as to that matter. It is right to mention now that the order appointing the other tenant as manager has since been discharged.
On 19th March 1998 Mr Boissevain or his representatives issued a notice under Section 8 of the Housing Act 1988 seeking an order for possession. That was followed on 28th July 1998 with a summons. Both were based on non-payment of rent.
Mr Lindhagen put in a reply. It consisted of a bare denial of the claim. The matter was listed for hearing on 22nd September 1998. Mr Lindhagen did not attend. The judge made an order for possession in his absence. As was his right, Mr Lindhagen then applied to have that order set aside. It was set aside by Miss Recorder Booth on 12th November 1998. However, leave to defend was granted upon stringent terms which involved the payment into court of £12,000 and an obligation on Mr Lindhagen to discharge the rent or mesne profits at £500 a month. Mr Lindhagen appealed and the matter came before this court on 5th July 1999. The court consisted of Lord Justice Brooke and Lord Justice Robert Walker. Both Lord Justice Brooke and Lord Justice Robert Walker gave judgments. They allowed the appeal. They remitted the matter for hearing in the County Court. They were troubled, so it appears from the judgment of Lord Justice Robert Walker, by a number of matters to which I will return. But, in remitting the matter, it was made plain by Lord Justice Robert Walker that Mr Lindhagen would have to file a comprehensive and comprehensible defence and counterclaim. I read from page 8 of the transcript:
"Mr Lindhagen has therefore been successful in getting the possession order set aside unconditionally. He must understand that if he is to fight the possession claims successfully he must take the proceedings very seriously. He must put in a comprehensible defence and counterclaim, he must attend hearings and he must produce all the relevant documents upon which he seeks to rely. I would therefore grant permission to appeal, grant an extension of time, allow the appeal and make an order in the terms which I have indicated."
The terms to which Lord Justice Robert Walker was referring in that passage were to his proposed order that the matter should be remitted to the County Court for hearing by a circuit judge.
In the course of his judgment he said nothing about directions hearings, which are routinely heard by district judges, having to come before a circuit judge; neither did Lord Justice Brooke. When eventually drawn neither did the order make any such reference. However, it appears that the shorthand writer noted the terms of the order in a rather different form. This is what the shorthand writer included on the transcript:
"Appeal allowed. Matter to be remitted to be placed before a circuit judge for directions in the county court at the earliest possible date."
It seems that Mr Lindhagen, ignoring the contents of the judgment itself and indeed the terms of the formal order, placed reliance on what was the shorthand writer's understanding —misunderstanding as it now appears —and, consequently, felt thereafter that any district judge would not have jurisdiction to entertain a summons or application for directions.
Subsequently, the matter...
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