Crawley v Dale
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOBHOUSE,LORD JUSTICE GLIDEWELL |
| Judgment Date | 08 February 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0208-4 |
| Docket Number | 93/0286/E |
| Court | Court of Appeal (Civil Division) |
| Date | 08 February 1995 |
[1995] EWCA Civ J0208-4
(His Honour Judge Hammerton)
Before: Lord Justice Glidewell Lord Justice Hobhouse and Lord Justice Aldous
93/0286/E
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HORSHAM COUNTY COURT
MR S BERRY QC & MR M BERKIN (instructed by J Hincliffe, East Grinstead, West Sussex RH19 3SY) appeared on behalf of the Appellant
MR A ARDEN QC & MISS M ELLIS (instructed by The Borough Secretary) Appeared on behalf of the Respondent
Wednesday 8th February 1995
This is an appeal by the defendant, Mr Ure, against a decision of Judge Hamilton given in Brighton County Court on 8th February 1993 when he gave judgment for the plaintiffs, the Crawley Borough Council, and ordered Mr Ure to give possession of a flat, 156B
Three Bridges Road, Crawley, West Sussex.
The material facts can be stated quite shortly. Mr and Mrs Ure were married on 12th October 1983 in the Philippines, both having previously been married and having children by their previous marriages. On 19th June 1986 Mr and Mrs Ure were granted a joint tenancy by the Borough Council of the flat, 156B Three Bridges Road, Crawley, to commence on 20th June 1986 on a weekly tenancy, the rent being due on each Monday, but subject to the statutory requirement that the tenancy could only be terminated on not less than four weeks' notice.
In April 1990 Mr Ure started to work for Iraqi Airways and not long afterwards he had the grave misfortune to be taken a hostage at the start of the Gulf War. In October 1990 he was released, and presumably returned to the United Kingdom at that stage. On 16th August 1991 Mrs Ure and her daughter left the matrimonial home, 156B Three Bridges Road, and have not since lived there. At some time after that, Mrs Ure started divorce proceedings. She and her daughter moved into accommodation which is variously described in the papers as a "refuge" or "emergency accommodation". The judge specifically made no finding about the events which led to her leaving or the reasons why she left, though he did find that Mr Ure did not wish her to leave. On 15th September 1991 Mr Ure's son moved into the flat to live with him. In response to a letter dated 13th September which dealt with an application made by Mr Ure for housing benefit, Mr Ure informed the Borough Council that Mrs Ure had left on 16th August.
As joint tenant Mrs Ure was entitled to continue to occupy the property; obviously she had a legal right to do so. She did not apply for an order to oust her husband from the matrimonial home. At some stage she applied to the council for assistance or accommodation as a homeless person under Part III of the Housing Act 1985. Presumably she was advised that, while she remained the joint tenant of the flat, she was not homeless, since she had an interest in the property, and thus she was not within the definition of a homeless person in section 58(2) of the Act. She would only come within the provisions if she satisfied one of the requirements in subsection (3) of section 58. As far as the matters there set out are concerned, they are matters about which the judge specifically made no finding in this case, that is to say as to whether there had been any violence by the husband.
However, it was suggested to Mrs Ure by the council, or by an officer of the council, that she could give a notice which would have the effect of terminating her tenancy of the flat, 156B Three Bridges Road. She therefore did so. On 6th April 1992 she gave a notice to Crawley Borough Council in a form provided to her by them and which thus, in form, reads as though it was drafted as a notice given by the council rather than by a tenant; it starts:
"I, Irene Ure, hereby give you, Crawley Borough Council, four weeks' notice of my intention to quit and deliver up on Monday the fourth day of May 1992, or on the day on which a completed period of my tenancy next expires after the end of four weeks from the date of the service of this Notice possession of the premises known as
156B Three Bridges Road, Three Bridges, Crawley, West Sussex."
She did not inform her husband either beforehand that she intended to give such a notice nor immediately afterwards that she had given it and it follows that she did not have his consent to her seeking to terminate the tenancy in that way.
At one stage in these proceedings a point was taken about the form of the notice, but that is not pursued in this appeal.
The council submit that the wife's notice had the effect of terminating the tenancy. Mr Ure refused to leave the property. The council therefore brought proceedings against him in the County Court. Originally they proceeded by way of an originating application for summary judgment under Order 24 of the County Court Rules. That failed, but as a result of that application, on 10th October 1992, Judge Kennedy QC, sitting in Horsham County Court, ordered that the borough council should file amended particulars of claim. He then made other orders requiring there to be pleadings in the action, and that it should proceed as an action on pleadings, and other directions. The action thereafter proceeded in the ordinary way. Various defences were raised by Mr Ure on his behalf, but in the event the judge decided against Mr Ure on all of them and gave judgment for the council as I have already indicated.
Only one of the arguments raised in the defence is repeated in this appeal; indeed, it has been refined, if not somewhat transmuted, as not infrequently happens, between the original hearing and the hearing before us. I shall refer in more detail to that argument in a moment.
It is convenient now to say that the circumstances which have led the parties to this Court are very similar to those in the two cases which were the subject of appeal to this court reported as Hammersmith and Fulham London Borough Council v Monk, (1991) 61 P & CR 414 and in the House of Lords at [1992] 1 AC 478. In each of those two cases a man and a woman, who were in the first case cohabiting and in the second case husband and wife, held joint periodic tenants of, in one case, a council house and, in the other case, a council flat. The cohabiting lady (the wife in the second case) left, and, just as Mrs Ure did, gave notice to the landlord council to quit, to terminate the tenancy. In each case the council sought orders for possession against the man (the husband in the second case). In the one case they succeeded in the County Court. In the other they failed. Both cases came to this Court on appeal.
The issue before this Court, and before the House of Lords, was whether a Notice to Quit given to the lessor by one of two joint tenants without the consent of the other joint tenant was effective to terminate the tenancy. In the Court of Appeal the councils argued that the matter had already been decided by this Court in GreenwichLondon Borough Council v McGrady (1982) 46 P & CR 223, to the effect that the service of such a notice did terminate the tenancy. The male tenants argued that the decision in McGrady was given per incuriam and was wrong. This Court in Monk did not accept that argument.
In his judgment in this Court, Slade LJ first of all recited the facts briefly; and I do so only to make good the similarity between the facts of that case and the facts of the present case which are not, of course, conclusive. He said at page 416:
"Subsequently there were differences between the two tenants. In 1988 Mrs Powell [she was Mr Monk's cohabitee] left the flat. She went to see the council and made certain allegations against Mr Monk. As the judge found, whether or not these allegations were justified, the council accepted them and agreed to rehouse her, provided that she terminated the current tenancy. For the purpose of doing so she came to see Miss Smith, an employee of the council. Miss Smith drew up, in the form of a letter, a notice to quit. She signed this letter and gave it to Miss Smith who, as the judge found, had authority to receive it on behalf of the council and did so receive it. The notice to quit took the following form:
'I hereby give you four weeks' notice in
writing of any intention to terminate my
tenancy of the ground floor flat at…. My
tenancy will end on….'
This notice was unquestionably effective to terminate the tenancy on the last-mentioned date if Mrs Powell had the legal right to terminate it without Mr Monk's authority or consent. However, he had not given her any authority or consent to serve the notice. He refused to vacate the flat. On February 14, 1989, the council instituted proceedings against him."
At page 426 Slade LJ said:
"The court in McGrady was, in my judgment, faced with a general question of law as to which there was no binding authority, so that it was free to decide this question either way. That question concerned the relationship of lessor on the one side and joint lessees on the other under a periodic tenancy. Though I have indicated certain considerations which might point to a different conclusion, it was in my opinion open to the court to take the view that if, by way of a joint enterprise, two or more persons enter into a tenancy agreement as joint lessees, it is inherent in the nature of the arrangement that, unless the contrary is expressly agreed, the arrangement will only continue so long as both lessees wish it to do so; and that correspondingly vis-a-vis the landlord either lessee will have the right to determine the tenancy on proper notice, even though his...
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