Douglas-Scott v Scorgie
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WATKINS,LORD JUSTICE SLADE |
| Judgment Date | 19 January 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0119-1 |
| Docket Number | 84/0007 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 January 1984 |
[1984] EWCA Civ J0119-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BLOOMSBURY &
MARYLEBONE COUNTY COURT
(MR. ASSISTANT RECORDER GOLDSTEIN)
Royal Courts of Justice
Lord Justice Watkins
and
Lord Justice Slade
84/0007
Plaint Nos. 7633976 and 7932226
MR. JOHN HAMILTON (instructed by Messrs. Rubinstein Callingham, Solicitors, London WC1R 5BZ) appeared on behalf of the Plaintiff (Appellant)
MR. FRANCIS PHILLIMORE (instructed by Messrs. Mackrell & Co, Solicitors, London WC2E 9EH) appeared on behalf of the Defendant (Respondent)
Lord Justice Slade will give the first judgment.
The appellant in this appeal is Miss Kay Douglas-Scott. She has been a tenant of the respondent, Mr. Dudley Scorgie, of the third floor flat, 47 Crawford Street, London Wl, the third floor being the top floor of the building in which the flat is situated. Two actions were instituted by Miss Douglas-Scott, as plaintiff, in the Bloomsbury and Marylebone County Court against Mr. Scorgie, as defendant, in 1976 and 1979, seeking damages against him substantially on the ground that he had failed to keep in repair the roof of the building over the flat in breach of his alleged implied obligations under s.32 of the Housing Act 1961. The actions took a shockingly long time to come to trial but eventually, by an order made in that court on 21st May 1982, Mr. Goldstein, sitting as an assistant recorder, refused an application by the plaintiff to amend her particulars of claim in the two actions, and dismissed both of them. He dismissed the actions without hearing evidence, in response to a preliminary point of law taken on behalf of the defendant, this being that the obligations of repair imposed on the defendant as landlord by s.32 of the 1961 Act cannot extend to the roof of the premises. The application to amend, which he refused, was an application by the plaintiff for leave to amend her pleadings, in effect by pleading a breach of the defendant's obligations at common law as opposed to statute.
There are now before the court, first, an application by the plaintiff for leave to appeal from the refusal of the assistant recorder to give her leave to amend her pleadings; and secondly, an appeal from his order dismissing the two actions.
I shall deal with the substantive appeal first. The question arising on it may, I think, be summarised thus: Was the assistant recorder right to hold as a matter of law, without hearing evidence, that the obligations of repair imposed on the defendant as landlord by s.32 of the 1961 Act cannot extend to the roof of the premises?
The original tenancy agreement was dated 28th February 1967 and was made between the defendant as landlord and the plaintiff as tenant. Clause 1, so far as it is material, provided:
"The Landlord shall let and the Tenant shall take—ALL that suite of rooms or flat consisting of one room kitchen and bathroom on the 3rd floor forming part of the messuage or buildings known as 47 Crawford Street W.1. Together with the use of the entrance hall and lift (if any) Staircase outer door and vestibule of the said buildings in common with the other tenants and occupiers thereof And together with the fixtures furniture and effects now in and upon the premises hereby agreed to be demised and more particularly specified in the Inventory thereof signed by the parties hereto For the term of 7 months from the 1st day of March 1967…..".
And then the clause goes on to specify the rent.
By Clause 2(3) the tenant agreed to keep the interior of the premises in repair. Clause 6 provided:
"This Agreement shall take effect subject to the provisions of Section 32 of the Housing Act 1961 if applicable to the tenancy hereby created".
The original term of seven months under the tenancy agreement has of course long since expired. I understand that the plaintiff now holds as statutory tenant on the terms of the agreement so far as applicable to the statutory tenancy.
At this point it will be convenient to read the relevant provisions of s.32 of the 1961 Act. Sub-section (1), so far as material, provides as follows:
"In any lease of a dwelling-house, being a lease to which this section applies, there shall be implied a covenant by the lessor—
(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes)";—I need not read the rest of that sub-section.
S.32(5) provides, inter alia:
"'Lease of a dwelling-house' means a lease whereby a building or part of a building is let wholly or mainly as a private dwelling, and 'the dwelling-house' means that building or part of a building".
S.33(1) provides that s.32 of the Act applies to any lease of a dwelling-house granted after the passing of the Act, being a lease for a term of less than seven years.
Pausing here, there is, I think, no doubt that s.32 applies in general terms to the tenancy of this flat, and that, having regard to the definitions which I have quoted, the flat itself is "the dwelling-house" for the purpose of applying the provisions of s.32. The contrary has not been argued.
The plaintiff claims that the roof of the premises, 47 Crawford Street, is part of "the structure and exterior" of that dwelling-house within the meaning of s.32(1) (a). The assistant recorder held that it was not. The plaintiff challenges his decision on this point. More narrowly stated, this is the substantive issue now before this court.
It is perhaps convenient to begin by considering whether the roof of the premises, 47 Crawford Street, actually forms part of the premises let to the plaintiff. This point can be dealt with very shortly. In this context we have been referred to the decision of this court in the case of Cockburn v. Smith, (1924) 2 Queen's Bench 119, and to the observations of Lord Justice Bankes at p.128 of the report, and of Lord Justice Sargant at p.134 of the report. In the face of this decision Mr. Hamilton, on behalf of the plaintiff, has not attempted to argue that the roof actually forms part of the demised premises in the present case. Since this point has not been argued before us, I will proceed on the assumption that this concession is a correct one.
However, the mere fact that the roof does not, in conveyancing terms, form part of the demised premises by no means concludes the matter, as is shown by the recent decision of this court in Campden Hill Towers v. Gardner, reported in (1977) 1 Queen's Bench Reports, 823. That case concerned an underlease of a third floor flat comprised in a block of flats, not on the top floor of the building in question. The county court judge had taken the view that in applying the provisions of s.32(1) of the 1961 Act to a flat comprised in a block of flats, the whole shell of the building had to be regarded as the exterior of the dwelling-house. The Court of Appeal rejected this very broad construction of paragraph (a) of s.32(1). On the other hand, it likewise rejected a very narrow construction submitted on behalf of the landlords to the effect that paragraph (a) cannot apply to anything, with the exception of drains, gutters and external pipes, which is not a part of the property demised.
Lord Justice Megaw, in the course of delivering the judgment of the court, said this at p.834:
"We do not accept the lessors' contention in so far as it would limit 'the structure and exterior of the dwelling-house' to that which, in the conveyancing meaning, is included in the particular terms of the demise in the lease. Anything which, in the ordinary use of words, would be regarded as part of the structure, or of the exterior, of the...
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