Dando (S. L.) Ltd v Hitchcock
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,LORD JUSTICE DENNING,LORD JUSTICE BIRKETT |
| Judgment Date | 09 April 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0409-6 |
| Court | Court of Appeal |
| Docket Number | Plaint No. J.30A. |
| Date | 09 April 1954 |
[1954] EWCA Civ J0409-6
In the Supreme Court of Judicature
Court of Appeal.
The Lord Chief Justice of England
(Lord Goddard)
Lord Justice Denning and
Lord Justice Birkett
MR. DESMOND NELIGAN (instructed by Messrs. Berrymans, agents for Messrs. Allan Janes & Co.High Wycombe) appeared on behalf of the Appellants.
MR. de PIRO (instructed by Messrs. Capel Cure & Clarke, incorp. Willmett & Co.) appeared on behalf of the Respondents.
( as revised)
I will ask Lord Justice Denning to deliver the first judgment.
In 1945 Mr. Parker let to Mr. Hitchcock a house called the Fassetts Farmhouse with 1 ½ acres of land. The agreement provided that "either the tenant or his present manager Austen Paynter is to reside on the premises and not to part with the possession of any part thereof". The tenant, Mr. Hitchcock, never himself resided on the premises, but he let his manager, Mr. Paynter, reside on the premises, and subsequently there was a partnership arranged between them.
In 1953 the interest of the landlord in the premises was bought by a company called S. L. Dando Ltd. They gave notice to quit to Mr. Hitchcock and determined the tenancy and now seek to recover possession of the premises. Mr. Hitchcock, the tenant, claims the protection of the Rent Restrictions Acts, not because he is living there himself, but because Mr. Paynter is living there. Mr. Paynter himself is only a licensee and has no protection against Mr. Hitchcock but Mr. Hitchcock claims to be entitled to the protection of the Acts because he says that occupation by Mr. Paynter is equivalent to occupation by himself, and for this purpose he relies on the clause in the Agreement which I have read.
In my opinion the principle on which this case should be decided was stated by Lord Wright in Hiller v. United Dairies (London) Ltd. (reported in 1934 1 K.B., page 57 at page 61), where he said: "If the rights under the Acts which are given to the statutory tenant are, as this Court has held in several cases, purely personal, I do not see how these rights can be vicariously enjoyed or how the principle of dwelling in the premises by an agent can be admitted". If Mr. Hitchcock were enabled by the clause in this Agreement to claim the protection of the Acts, it would mean that a limited company by a like clause could obtain protection: and that would be contraryto the principle involved in Biller's case. So also, if Mr. Hitchcock could by the clause obtain the benefit of the Acts in respect of this house, he might do so in a similar way for half a dozen houses and he might be statutory tenant of half a dozen. And if Mr. Hitchcock died and his widow succeeded, she might claim the statutory tenancy. Such consequences can never have been intended by Parliament; and I do not think the clause in the Agreement can be admitted to have such an effect. The clause is not carried over into the statutory tenancy because it is not consistent with the provisions of the Act. It is contrary to the principle that the tenant is only protected so long as he himself retains possession, which means so long as he himself remains in personal occupation.
Some reference was made to the husband and wife cases. It is well-established that if a husband deserts his wife and leaves her in the house, the statutory tenancy does not come to an end. That is because of the particular relationship of husband and wife. The husband continues to occupy by his wife. She has an irrevocable authority from him to stay there. It remains the matrimonial home, though he is not living there. Those cases are on a special footing, and do not apply to this case.
Furthermore I can well see that the Court would not allow the landlord to avoid the Acts by taking someone as a nominal tenant, well knowing that the real tenant was to be somebody else. The Court would then look to the realities of the situation. But subject to cases of that kind, the only person protected under the Rent Restrictions Acts is the tenant; and he is only protected so long as it is his home. As my Lord said in Reidy v. Walker (reported in 1933 2 Kings Bench Division page 266, at page 272), "the Rent Restriction Acts were intended for the protection of a person's home, not for the protection of some other rights which he may have". This case seems to me to be an attempt to protect Mr. Hitchcockin respect of some other rights, certainly not a right in respect of his home.
In my judgment, this appeal should be allowed accordingly.
I quite agree and in ordinary circumstances would be quite content to add nothing more. But we are differing from the learned County Court Judge and as I feel a special responsibility to the learned County Court Judge in view of something he said in his Judgment, I think I will add just a very few words.
I am not pretending that any of these cases under the Rent Restrictions Acts are easy, and there were times when I was much attracted by the argument of Mr. de Piro here to-day. The learned County Court Judge in a very careful Judgment cited certain County Court cases which supported the view that he was taking in this case, and said that he did not know that any of those County Court cases had been adversely criticised; and then relied upon the decision in Wabe v. Taylor (reported in 1952 2 Q.B., page 735) to which I was a party, and quoted from the Judgment I then delivered. That was a husband and wife case, and I think it is commonly conceded that the husband and wife cases are in rather a special category. In Wabe v. Taylor there was a deserted wife who had remained in occupation...
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