Cannock Chase District Council v Kelly
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE LAWTON,SIR DAVID CAIRNS |
| Judgment Date | 07 July 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0707-1 |
| Date | 07 July 1977 |
| Court | Court of Appeal (Civil Division) |
Lord Justice Megaw
Lord Justice Lawton and
Sir David Cairns
In The Supreme Court of Judicature
Court of Appeal
Civil Division
(On Appeal from Judgment of his Honour Judge Allardice - Stafford County Court)
Mr. PETER BAKER, Q.C. and Mr. ROBERT ORME (instructed by Messrs. Wedlake Bell, Agents for Messrs. Pickering & Pickering, Rugeley, Staffs.) appeared on behalf of the Appellant (Defendant).
Mr. ANTHONY HIDDEN, Q.C. and Mr. ROBERT SMYTH (instructed by Mrs. H. Jones, Solicitor, Cannock Chase District Council, Cannock, Staffs.) appeared on behalf of the Respondents (Plaintiffs).
In January, 1975, Mrs. Alma Kelly (whom I shall call "the tenant") became the tenant of a Council house, 86 Church Street, Rugeley, the landlord "being Cannock Chase District Council ("the local authority"). Because of section 5 (1) and (2)(b) of the Rent Act, 1968, the tenant was not a protected tenant nor a statutory tenant for the purposes of the Rent Acts. No question of Rent Act protection, therefore, arises.
On 21st November, 1975, the local authority gave the tenant written notice to quit on 28th December, 1975. The tenant remained in possession. On 14th January, 1976, the local authority started proceedings in the Stafford County Court against the tenant claiming possession of the house. The particulars of claim read as follow: "1. The Plaintiffs are entitled to possession of a dwelling-house known as No. 86 Church Street, Rugeley, in the County of Staffordshire which was let by the Plaintiffs to the Defendant on a weekly tenancy at the weekly rent of £5.64 which said tenancy was duly determined by notice in writing to quit dated the 21st November, 1975, and expiring on the 29th December, 1975, yet the Defendant wrongly remains in possession of the said dwelling-house. 2. The net annual value for rating is £120 And the Plaintiff claims: (i) Possession of the said dwelling-house and costs; (ii) Mesne profits at the rate of £5.64 per week from the 5th January, 1976, until the date of the hearing".
The particulars of claim did not allege that the local authority's claim for possession was in order to exercise its powers under the Housing Act, 1957. In my opinion, no such assertion was necessary. In Bristol District Council v. Clark (1975) 1 Weekly Law Reports 1443 it was held by this Court that a local authority, having given notice to a Council house tenant to quit, did not have to give evidence to show that its claim for possession was for thepurpose of exercising those powers. Since evidence is not required to establish the fact, the fact does not have to he alleged in the pleadings. If that fact does not have to he pleaded or proved, I see no reason why, at least in the ordinary case, the local authority should have to plead or to prove anything as to its reasons.
On 29th January, 1976, the tenant's solicitors asked for further and better particulars of the claim, "specifying the grounds upon which the order for possession is sought having regard to the regulations and conditions of the tenancy". I do not think that the local authority was obliged to answer that request; but it did so, saying: "The plaintiffs are not alleging any specific breaches of the regulations and conditions of tenancy and base their claim for possession on the termination of the defendant's former tenancy as specified in the particulars of claim".
A defence was delivered. It was amended by leave on the day of the hearing in the County Court, 14th May, 1976. As amended, it read as follows: "1. The Defendant denies the Plaintiff is entitled to possession in the terms as set out or at all. 2. The Plaintiffs are under a duty to exercise the powers and duties of management regulation and control of the said dwelling-house at 86 Church Street, Rugeley, in good faith and taking into account all relevant considerations. 3. In breach of the said duty the Plaintiffs have failed to exercise their powers and duties, in particular the power to evict the Defendant, in good faith and taking into account all relevant considerations".
At the hearing on that day, before Judge Allardice, evidence was given by the tenant, Mrs. Kelly. The evidence was in fact given, for reasons which do not matter, before counsel for the local authority made his opening address. Nothing turns on that. No other evidence was called. The effect of the tenant's evidence, asit appears in the judge's notes of evidence (supplemented to some extent by additional notes agreed between counsel, which had not been submitted to the learned judge) was as follows:
Mrs. Kelly had previously been a protected tenant in another house. That other house had been compulsorily acquired and demolished. As a result she had been rehoused by the local authority in January, 1975, in 86 Church Street. She had been living there with her 5 children. She received £25 a week from Social Security. There were no arrears of rent. She had put fittings into the house and had redecorated it. She had spent nearly £300 on a carpet. The state of the property was very good. In cross-examination she said that there had been complaints about her by a neighbour and there was some mention of a petition against her. She said in reexamination that she had been stabbed one night. She had been told to keep the noise down, but the noise was nothing to do with her. There had been no complaints from the Council since November (that is, November 1975).
So far as any such evidence might be relevant, the learned judge's findings on it, or the assumptions he was prepared to make, were included in a passage which I read from the notes of his judgment, agreed between counsel and approved by the judge, as follows: "On her own account one or two things have gone wrong in the defendant's life. I accept that it is not the defendant's fault that she was knifed and made too much noise. I accept from her that she has acted as a good tenant and there has been no breach of covenant, but even if this is so - even if she is a good tenant and has spent money on the property - it is not enough to raise a prima facie case that the Council has not acted in good faith and taken into account all the relevant considerations. It is open in my view for the Council to evict somebody who is a good tenant. For the tenant merely to have to say 'I am a good tenant' to retain possession isto bring in Rent Act principles by the back door".
So the judge is to be taken as having accepted or assumed that the tenant was a "good tenant" and that there had been no breach by her of any term of her tenancy. Nevertheless he gave judgment for the plaintiff local authority and made an order for possession.
For the tenant it is submitted that the judge was wrong in law, on the facts as found by him. The argument for the tenant, in its essence, is that, because it was accepted that she was a good tenant and had not broken any term of her tenancy, there was thus, without more, established a prima facie case that the local authority must have abused its powers by having taken into account some consideration which it ought not to have taken into account or, negatively, by having failed to take into account some consideration which it ought to have taken into account. The local authority having called no evidence to seek to establish what were the considerations which led it to serve the notice to quit, the court could and should have held that an abuse of powers had been proved and the action for possession should have been dismissed.
Unless there is anything in the ratio decidendi of Bristol District Council v. Clark (1975) 1 Weekly Law Reports 1443 which supports that submission, I should regard it as wrong and as inconsistent with the leading authority of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 King's Bench 223. Lord Greene, Master of the Rolls, in that case, at page 228, said: "What, then, is the power of the courts? They can only interfere with an act of executive authority if it be shown that the authority has contravened the law. It is for those who assert that the local authority has contravened the law to establish that proposition".
So, the burden is on the tenant. It is for the tenant first properly to allege, and then, if challenged, to prove, the "contravention of the law" in what, prima facie, is a permitted andlawful act of the local authority. One of the grounds on which a challenge can he made, and, if established, should certainly succeed, is bad faith. As Lord Greene, Master of the Rolls, says at page 229: "Bad faith, dishonesty - those, of course, stand by themselves". I would stress - for it seems to me that an unfortunate tendency has developed of looseness of language in this respect - that bad faith, or, as it is sometimes put, "lack of good faith", means dishonesty: not necessarily for a financial motive, but still dishonesty. It always involves a grave charge. It must not be treated as a synonym for an honest, though mistaken, taking into consideration of a factor which is in law irrelevant. If a charge of bad faith is made against a local authority, it is entitled, just as is an individual against whom such a charge is made, to have it properly particularised. If it has not been pleaded, it may not be asserted at the hearing. If it has been pleaded but not properly particularised, the pleading may be struck out. I need say no more of that here, however, because, despite the allegation in the amended defence that "the plaintiffs have failed to exercise their powers and duties….in good faith….", counsel for the tenant in this Court has disclaimed any charge of dishonesty on the part of the local authority or its officials.
Lack of good faith goes. What remains? On Lord Green's analysis, even though there has been no Bad faith, a...
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