Chapman v Honig
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES |
| Judgment Date | 01 May 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0501-1 |
| Date | 01 May 1963 |
| Court | Court of Appeal |
[1963] EWCA Civ J0501-1
In The Supreme Court of Judicature
Court of Appeal
From his Honour Judge Baxter Bow County Court
The Master Of The Rolls (Lord Denning)
Lord Justice Pearson and
Lord Justice Davies
THE APPELLANT appeared in person.
MR GERALD BUTLER (instructed by Messrs Lipson, Ruumey & Co,) appeared as Counsel for the Respondent.
Mr Maurice Honig owns a house, No.218, Romford Road, Stratford, and lets it cut in flats. His father, Emanuel Honig, collects the rents and is closely associated with his son in the management of the properties. The son has sought to disclaim responsibility for his father's acts but on the Judge's findings it is plain that the two were acting in combination in all that took place.
The story starts with the flat on the second floor which was occupied by Mr and Mrs Harrand and their three children. On 3rd November, 1960, the landlord gave Mr Harrand notice to quit to expire on 3rd December, 1960. But a few days later on 7th November, 1960, long before the notice expired, whilst the Harrande were out for the day, Emanuel Honig, the father, entered the flat, piled all their furniture into one of the rooms, installed someone else as tenant and padlocked the doors against the Harrands. The Harrands managed to find accommodation for their three children with relatives and they themselves had borrow a car to sleep in. They slept in it for eleven nights. Meanwhile their furniture was put into the garden, where it deteriorated and much of it disappeared. fair Harrand brought an action against the landlord, Mr Maurice Honig, for trespass. It was tried by his Honour Judge Baxter on 22nd June, 1962. He held that although the acts were done by the father, Emanuel Honig, the father and son were very closely in communication one with the other. He drew the inference that the son had complete knowledge of what was going on: and held the son responsible for the father's conduct. He reproached them for "causing these people and their three children to be without a home on a cold November evening". It was, he said, "a high-handed defiance of the plaintiff's legal rights". And he awarded the sum of £200 as exemplary damages. The landlord appealed to this Court and on 15th November, 1962, his appeal was dismissed. Lord Justice Ormerod said it was a shocking performance on the part of the defendant or his father or both of them.
The story now turns to the flat on the first floor which was occupied by Mr and Mrs Chapman and their family. Mr Chapman had been tenant since 1939. He had seen something of what happened on the second floor: and Mr Harrand wanted him to give evidence in the case which I have described, Mr Chapman, fearing what might befall him if he gave evidence against his landlord, did not go voluntarily to the Court, He was subpoenaed to do sot and only gave evidence in obedience to the subpoena. He, have evidence on 22nd June, 1962, at the hearing before Judge Baxter, On the very next day, the 23rd June, 1962, the landlord served on Mr Chapman notice to quit his first floor fiat on 28th July, 1962, The reason he did this was simply because Mr Chapman had given evidence for Mr Harrand. The object of the landlord was, the Judge found, "to punish or victimise Mr Chapman for having given evidence",
Mr Chapman did not vacate the premises on 28th July. He remained there. On 15th August, whilst he was at work and his wife and daughter at home, Emanuel Honig, the father, came and put padlocks on the doors of two of the rooms and a staple on the third. Mr Chapman was called back from work. The police were called too. Mr Chapnan said to the police: "I was subpoenaed to give evidence against the landlord. He lest the case and gave me notice to quit". The police asked Emanuel Honig: "Why do you want him out?" Emanuel Honig replied: "He gave evidence against me in Court and you don't do that to landlords". In making that stat ement, the father was, as the Judge found, the mouthpiece of the son and fully authorised by him to make explanation Mr Chapman said he did not intend to leave the premises. The padlocks were removed from the doors. But thenceforward Mr Chapman was careful to see that one or other pf the family remained in the flat lest any attempt should be made to lock the doors in their absence. He consulted solicitors and was granted an emergency legal aid certificate. His solicitors at once applied for an injunction and a few dayslater Judge Sir Alun Pugh granted an injunction restraining Mr Honig from trespassing on the flat or placing padlocks on the doore or cutting off the electricity. But nevertheless Mr Chapman found that his wife, Mrs Chapman, was so greatly disturbed by what had happened that for the sake of her health he felt obliged to leave the flat. He moved his furniture and left on 27th August, 1962. But he proceeded with his action to recover damages. It came for trial before Judge Baxter on 19th November 1962.
In his pleadings the plaintiff asserted that the notice to quit was invalid because it was served on him in contempt of court. And he claimed damages for trespass and breach of covenant for quiet enjoyment. The landlord sought to justify the notice to quit. He said that he gave it because the rent was in arrear and he produced a so-called rent book in support. The Judge rejected this suggestion. He found that father and son were both lying. Mr Chapman was not in arrear with his rent and the so-called rent book had all the marks of being freshly written up for the purposes of the action. The Judge summarised his conclusion in these words. "When faced with a service of a notice to quit on the day after the previous hearing, and a persistent course of lying to a process server and to me, with the utilisation of a false document, 1 have no hesitation in rejecting the defendant's evidence as to the motive for serving the notice to quit and in finding that he served the notice because the plaintiff had given evidence for the plaintiff Harrand in his action against the defendant. His object was to punish or victimise Mr Chapman for having given evidence". The Judge held that the act was a contempt of court and he awarded the plaintiff £50 damages. The defendant appeals.
To my mind the whole case depends upon this one point. When the landlord served this notice to quit, was his act lawful or unlawful? If it was lawful, so that the notice to quit was good, then I think the plaintiff must fail. He cannot complainof being evicted if his tenancy had been validly terminated: see Hammings v. Stoke Poges Golf Club. 1920, 1 K.B, 720. But if it was unlawful so that the notice to quit was bad, then the plaintiff must succeed: for in that event the conduct of the landlord, in putting padlocks on the doors and attempting to evict the tenant, was undoubtedly a trespass and a breach of covenant for quiet enjoyment.
It would, I think, be fatal for the plaintiff to concede that the notice to quit was lawfully served on him. And I did not understand him ever to concede it. For once such a concession was made, the plaintiff would be met by the proposition that an act, lawful in itself. cannot be rendered unlawful by being done with a bad motive: see Bradford Corporation v. Pickles, 1895 A.C., 587, and Allen v. Flood, 1898 A.C., 1. But before ever you apply that proposition, you must first decide whether the act was "lawful in itself". And then you will find that, often enough, its lawfulness depends on the motive with which it is done: see the essay of Professor in Selected Essays on the Law of Torts, p. 150. If a landowner shoots a gun at a target on his own land, you might say it is an act "lawful in itself". But you would be wrong. If he does it for the express purpose of injuring hie neighbour – as by disturbing his silver foxes in the breeding season – and does in fact injure him, it is an actionable wrongs see Keeble v. Hickeringill, (1703) 11 Nodern, 74, 130, by Chief Justice Holt., Hollywood Silver Fox Farn Ltd. v. Emmett. 1936, 2 K.B., 468. So also if a person exercises a contractual right (as if a master dismisses his servant on sufficient notice or if a landlord gives his tenant a correct notice to quit), you might say it is an act "lawful in itself". But again you would be wrong. It is true that when a person exercises a contractual right, it is nearly always lawful, no matter that he may be actuated by spite or malevolence, see Allen v. Flood, 1898 A.C. at p. 46 by Mr Justice Wills. But circumstances: may arise when it is unlawful. The Supreme Court of the United States had such a case before themin 1921, American Bank & Trust Co. v. Federal Bank (1921) 256 U.S., 350, where Mr Justice Holmes delivered an instructive judgment. And we have, I believe, such a case before us to-day. For the landlord here was exercising his contractual right in contempt of court: and that is to my mind unlawful: and being unlawful, he can acquire no rights under it.
Let me first show that it was unlawful. On the Judge's findings the landlord gave this notice quit and attempted to evict the tenant vindictively in order to punish Mr Chapman for having given evidence against him. That is in itself a contempt of court – a criminal offence – and punishable accordingly: see Attorney-General v. Butterworth, 1962, 3 W.I.R., 819, and, being done by father and son in a combination to injure, it may also have been a conspiracy: see Crofter Hand Woven Harris Tweed Co. v. Veitch. 1942 A.C., 435. It was in any case unlawful. My brother Pearson has, however name doubt about it. He thinks that the victimisation of a witness is not a contempt of court in itself. It is only a contempt if other people are likely to get to know of it and be deterred from giving evidence in other actions. If that is right, it would mean this, that if the tenant proclaims his...
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Preliminary sections
...Chaplin v. Young 55 English Reports 395…………...........................................................……..348 Chapman v. Honig (1963) 2 All E.R. 513.…….........................................................................……66 Chapman v. Lord Ellesmere and Others (1932) 2 K.B. 431…………..........
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Table of Cases
...Chaplin v. Young 55 English Reports 395…………...........................................................……..348 Chapman v. Honig (1963) 2 All E.R. 513.…….........................................................................……66 Chapman v. Lord Ellesmere and Others (1932) 2 K.B. 431…………..........
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