Gill v Lewis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE JENKINS,LORD JUSTICE HODSON |
| Judgment Date | 14 March 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J0314-1 |
| Date | 14 March 1956 |
| Court | Court of Appeal |
[1956] EWCA Civ J0314-1
Lord Justice Singleton
Lord Justice Jenkins and
Lord Justice Hodson
In The Supreme Court of Judicature
Court of Appeal
MR CHRISTOPHER GRUNDY (instructed by Messrs Pettiver & Pearkes) appeared on behalf of the Appellants (Plaintiffs).
MR C. E. ROCHFORD (instructed by Messrs Greene & Underhill) appeared on behalf of the Respondents (Defendants).
I will ask Lord Justice Jenkins to give the first Judgment.
The Appellants in this case, who were the Plaintiff's in the action, are Mr Reginald Edwin Gill, and Miss Edna Bradshaw. They sued as personal representatives of the late Ida Janet Dufour Cole. The action concerns certain leasehold promises, to be later described, which form part of the estate of Mrs Cole, The Respondent Defendants are a Mr Archibald Lewis and a Mr Neville Wright. They are the tenantsof the leasehold premises in question. The action was brought by the Plaintiff executors against the Defendant tenants for non-payment of rent and (as will hereafter appear) judgment, including an order for possession, was obtained against one of them. They both thereupon applied for relief from forfeiture for non-payment of rent under the provisions of section 46 of the Judicature Act, 1923, road in conjunction with sections 210, 211 and 212 of the Common Law Procedure Act, 1852. The Master held the Defendants entitled to relief. On appeal Mr Justice Pearson in Chambers affirmed the Master's decision, and the Plaintiffs now appeal to this Court.
The promises in question consisted of two adjoining houses, Nos. 90 and 92 Ifield Road, Kensington. They were held under two separate leases, the earlier in date being the one which comprised No. 92. That was a lease for five years from the 25th December, 1952, at a rent of £375, paid quarterly in advance. The lease of No. 90 was dated the 1st October, 1953, and that was for a term of ten years from the 29th September, 1953, at a rent of £450, payable quarterly in advance; making £825 in all for the two houses.
The parties to the lease in each case were Mrs Cole, as landlord, and the two Defendants as tenants. The leases contained various covenants – to use the promises as private dwelling-houses only, with an exception as regards the ground floor and basement, which could, I think, be used for office purposes; not to cause any nuisance or annoyance to the landlord or adjoining owners; and not to underlet or part with possession without the consent in writing of the landlord. There was the usual power of re-entry in the event of the rent being unpaid for 21 days.
It is said against the Defendants that they were always bad payers; and the facts seem to some extent to bear that out. It is also said that when it was sought to Improve their performance in this respect by legal proceedings they weredifficult to find. Two actions in respect of rent in arrear were brought before the present action. In the first, a Writ was issued on the 26th March, 1954. It was a claim for rent only: there were no claims for possession or for breach of covenant other than the covenant to pay rent. In that action the claim was for rent due in March, 1954. The Plaintiffs found it impossible to serve the Defendant wright, who could not be found; and in the result, on the 6th July, 1954, judgment was obtained against Lewis alone for the amount of the arrears. That rent was later paid, but the complaint is made that the costs were left outstanding for a long time. The second of the two previous actions was begun by a Writ dated the 30th June, 1954, and the claim was for rent die in June, 1954, again without any claim for possession. On this occasion an Order for substituted service was obtained against the Defendants on the 19th July, 1954, and on the 26th July, 1954, judgment was obtained against both Defendants for the rent in arrear and costs. There again, it is said that, if those costs have been paid by now, at all events it was a long time before they were paid. Mrs Cole died on the 22nd. January, 1955; and the Plaintiffs obtained Probate on the 11th March, 1955.
On the 1st April, 1955, the Writ in this action was issued. The relief claimed differed from the claims in the previous actions. In that possession was claimed on the strength of the non-payment of rent, the claims being for possession of Nos. 90 and 92, arrears of rent and means profits. On this occasion, in contrast to the first, it was found possible to serve wright, but Lewis was not to be found. In the end it appeared that he had been sent to prison over a matter to which I will later refer. The Defendant Wright, although served, did not immediately appear to the action, but he and Lewis entered appearances on the 13th July, 1955. I think that Lewis was never in fact served, but by arrangement with wright appearance was entered for both of them, and I suppose service was waived so far as Lewis was concerned.On the 17th May, 1955 (the Defendant wright at this stage not having appeared and the Defendant Lewis not having been served) judgment in default of appearance wee signed against wright alone.
Before the signing of judgment against Wright, £400 was paid off the total of £412. 10s. 0d. owing for rent. The position thus was that while the bulk of what was due for rent was paid before the date of the judgment, there was a small balance outstanding at that date consisting, apart from costs, of the sum of £12.10.0. It appears that on the 20th June, 1955 – that is to say, after the issue of the writ in the action, and indeed after judgment had been signed against the Defendant Wright – the Defendant Lewis was convicted of two indecent assaults on boys; and it appears, further, that these assaults were committed at No. 92, Ifield Road. The Defendant Lewis was prosecuted, and he was sentenced to two years' imprisonment, it appears that the Defendant Levis is a coloured man. He apparently is a singer or entertainer, and the Defendant Wright is his manager. I gather that in the ordinary way they spend much of their time, or used to spend much of their time, touring the country giving performances.
The facts being as I have stated them, both Defendants, having at length entered appearances on the 13th July, 1955, applied to the Court for relief from forfeiture, and they made that application under section 46 of the Judicature Act, 1925. read in conjunction with sections 210, 211 and 212 of the Common Law Procedure Act, 1952. As I have already said, when the Summons came before the Master he granted relief; and Mr Justice Pearson affirmed his decision on the 11th October, 1955. The learned Judge, having considered the terms of the relevant sections, and also, I understand, the authorities to which we have been referred, or some of them – I gather that the case was not so fully gone into before him – doubted whether he had any discretion in the matter: that is to say, he thought the position might well be that on proof of tender or payment of thearrears the Court was in effect bound to exercise its discretion in favour of the tenants; but he went on to say, having considered the facts, that if there was any discretion in the matter he thought it should be exercised in favour of the Defendants so as to give them relief.
On the part of the Plaintiff landlords, it is urged that the Court's Jurisdiction in this matter is a discretionary jurisdiction; and, while it is conceded that in the ordinary way the Court will make the Order as a matter of course when satisfied that the landlord has received, or has been tendered, all that is due to him for rent and for costs, that is not a wholly inflexible rule, for the conduct of the tenant may be looked into, and upon looking into his conduct it may appear that it would be inequitable or unfair to grant relief, in which case the Court ought. In the exercise of its discretion, to refuse relief.
As grounds on which, in his submission, relief should have been refused by the learned Judge in the present case, Mr Grundy relied, in effect, on three matters. The first was the previous history of the difficulties which the landlords had experienced in extracting the rent from the Defendants; the second was the elusive habits of the Defendants, which led to the difficulties of service to which I have referred; and the third was the Defendant Lewis's conviction of the two acts of indecent assault, committed actually upon a part of the demised premises, that is to say, in No. 92. Taking all those matters into consideration, the learned Judge (says Mr Grundy) ought to have come to the conclusion that the Defendants here were so wholly unmeritorious that it would be inequitable to grant there relief so as to saddle the landlords for a further period with such undesirable tenants.
On the other hand, Mr Rochford, for the Defendants, says that, although there may be exceptions, a case must be an exceptional one indeed for the Court to refuse relief on other grounds when all the rent and costs have been paid up. He does not go so far, I think, as to say that the Court would neverrefuse relief, but he says that the Court would only do so in very exceptions! circumstances, such as do not exist in this case.
Those, briefly, are the arguments as presented to the learned Judge and to us on the footing that this application properly case before the court as an application under section 46 of the Judicature Act. I should next refer to that section and, briefly, to the relevant sections of the Common Law Procedure Act. Section 46 of the Judicature Act, 1925 (which substantially replaces section 1 of the Common Law Procedure Act, 1860) is in these terms; "In the case of any action for a forfeiture brought for non-payment of rent, the High Court or a judge thereof shall have power to give relief in a summary manner,...
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