Harlow District Council v Hall

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeThe Chancellor,Lord Justice Chadwick,Sir Paul Kennedy
Judgment Date28 Feb 2006
Neutral Citation[2006] EWCA Civ 156
Docket NumberCase No: A2/2005/1748

[2006] EWCA Civ 156

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HARLOW COUNTY COURT

HIS HONOUR JUDGE O'BRIEN

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Chancellor of The High Court

Lord Justice Chadwick Sir Paul Kennedy

Case No: A2/2005/1748

4HA02556

Between:
Harlow District Council
Respondent/Claimant
and
Norman John Hall
Appellant/Defendant

Mr Damian Falkowski (instructed by Harlow District Council) for the Respondent/Claimant

Prof. Ian Loveland (instructed by Messrs Ismail & Co) for the Appellant/Defendant

The Chancellor

The Chancellor

1

The defendant, Mr Hall, occupied 52 The Stow, Harlow, Essex as the tenant of the Harlow District Council. The tenancy was a secure tenancy within s.79 Housing Act 1985. Accordingly it could not be terminated except by, inter alia, an order of the court for possession of the dwelling-house (s.82(1) and (1A)) . By February 2004 Mr Hall was having difficulty paying the rent due to the Council. The Council commenced proceedings against him in the Harlow County Court and obtained a judgment ("the Possession Order") from District Judge Pelly on 12th January 2005 that Mr Hall do "give the claimant possession of [the dwelling-house] on or before 9th February 2005". In addition the District Judge ordered Mr Hall to pay the arrears of rent and costs totalling £1919. Paragraph 5 of the order provided that:

"This order is not to be enforced so long as the defendant pays the claimant the rent arrears and the amount for use and occupation and costs totalling £1,919 by the payments set out below in addition to the current rent."

Such payments were:

"£10 per week, the first payment being made on or before 9th February 2005."

It is not disputed that such a payment was made before 9th February 2005 and periodically thereafter.

2

On 10th February 2005 a bankruptcy order was made against Mr Hall on his own petition by District Judge Pearl. On 28th May 2005 Mr Hall applied to District Judge Shanks for the discharge of the Possession Order on the grounds that the liability of Mr Hall for the arrears of rent and costs were debts provable in his bankruptcy and the order for possession was precluded by s.285(3) (a) Insolvency Act 1986 because it was "a remedy against the property…of [Mr Hall] in respect of [those] debt[s]…". The application was dismissed by District Judge Shanks. The appeal of Mr Hall against the latter order was dismissed by HH Judge O'Brien on 15th July 2005. The appeal now before us is the appeal of Mr Hall against the order of Judge O'Brien and is brought with the permission of Jacob LJ given on 17th October 2005.

3

It transpired in the course of the hearing that on 19th July 2005 Mr Hall applied in person for a variation of the possession order by reducing the weekly payment from £10 to £5. The application was allowed by District Judge Pearl on 11th August 2005. We were invited by counsel for Mr Hall to treat this appeal as an appeal from the order of HH Judge O'Brien seeking to set aside the Possession Order as varied by the order of the District Judge made on 11th August 2005. This was not opposed by counsel for the Council and I shall do so.

4

Before I consider the reasons why Judge O'Brien dismissed the appeal and the submissions of counsel as to their validity I should set out the relevant provisions of the Housing Act 1985 and the Insolvency Act 1986. As I have already pointed out the tenancy of Mr Hall was a secure tenancy, as described by s.79 of the former. Accordingly it could only be determined by an order of the court, s.82( 1) . S.82(2) provides:

"Where the landlord obtains an order for the possession of the dwelling house, the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order."

The court may only make an order for possession on one or more of the grounds set out in Schedule 2. Part of ground 1 is that

"Rent lawfully due from the tenant has not been paid…."

The court may only make a possession order on that ground if "it considers it reasonable to" do so, s.84(2) (a).

5

S.85 provides that:

"(2) On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may –

(a) stay or suspend the execution of the order, or

(b) postpone the date of possession,

for such period or periods as the court thinks fit.

(3) On such an adjournment, stay, suspension or postponement the court –

(a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy (mesne profits), unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and

(b) may impose such other conditions as it thinks fit.

(4) If the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession."

6

The effect of these provisions has been authoritatively considered by the House of Lords in Burrows v London Borough of Brent [1996] 1 WLR 1448. It is sufficient to refer to two passages, one in the speech of Lord Browne-Wilkinson and the other in the speech of Lord Jauncey of Tullichettle. At page 1454 Lord Browne-Wilkinson said:

"A secure tenancy protected by Part IV of the Act of 1985 is not like an ordinary tenancy. It can only be terminated by an order of the court ordering possession to be given on a particular date or in a particular event. But even determination by order of the court is not final. Until the possession order is executed, the court can by variation of its order change the date on which possession is to be given and thereby revive a secure tenancy which has already been terminated. During the period between the date specified by the order for the giving of possession and the date on which the order is executed there is a period of limbo: the old tenancy has gone but may be revived by a further order of the court varying the date for possession."

At page 1457 Lord Jauncey of Tullichettle said:

"..whereas an order postponing the date of possession necessarily affects the operation of section 82(2), an order staying or suspending the execution of an order for possession on a stated date has no effect on the operation of that subsection but merely postpones execution so long as the conditions of suspension are complied with."

7

There is no dispute that the liability of Mr Hall for the rent and costs referred to in paragraphs 2 to 4 of the Possession Order became, on the making of the bankruptcy order on 10th February 2005, debts provable in the bankruptcy of Mr Hall. Similarly it is common ground that the secure tenancy, if it continued, would not vest in the trustee in bankruptcy, Insolvency Act 1986 s.283(3A) (d), with the consequence that Mr Hall would remain personally liable for rent accruing due after the date of the bankruptcy order.

8

The other relevant statutory provisions are to be found in the Insolvency Act 1986. So far as relevant s.285 provides:

"285 Restriction on proceedings and remedies

(1) At any time when proceedings on a bankruptcy petition are pending or an individual has been adjudged bankrupt the court may stay any action, execution or other legal process against the property or person of the debtor or, as the case may be, of the bankrupt.

(2) Any court in which proceedings are pending against any individual may, on proof that a bankruptcy petition has been presented in respect of that individual or that he is an undischarged bankrupt, either stay the proceedings or allow them to continue on such terms as it thinks fit.

(3) After the making of a bankruptcy order no person who is a creditor of the bankrupt in respect of a debt provable in the bankruptcy shall –

(a) have any remedy against the property or person of the bankrupt in respect of that debt, or

(b) before the discharge of the bankrupt, commence any action or other legal proceedings against the bankrupt except with the leave of the court and on such terms as the court may impose.

This is subject to sections 346 (enforcement procedures) and 347 (limited right to distress).

(4) Subject as follows, subsection (3) does not affect the right of a secured creditor of the bankrupt to enforce his security.

(5) ….

(6) References in this section to the property or goods of the bankrupt are to any of his property or goods, whether or not comprised in his estate."

9

I should also refer to s.436 which provides that

"property" includes money, goods, things in action, land and every description of property wherever situated and also obligations and every description of interest, whether present or future, or vested or contingent, arising out of, or incidental to property."

10

Those are the provisions which the HH Judge O'Brien had to apply. The grounds on which the judge dismissed Mr Hall's appeal appear clearly from paragraphs 19 to 22 of his judgment. He said:

"19. I think the argument at the end of the day, though interesting, is misconceived because this plainly is not a case where the local authority are seeking to exercise a remedy against the property, far less the person, of the bankrupt. The situation is that his right to be in possession of 52 The Stow has been ended by 9 February 2005. He has been given the opportunity to cling onto occupation of that property so long as he pays the figure that was the rent, which is now called the amount for use and occupation, in accordance with the order, that is to say, at the rate of the current rent plus £10 per week. I accept the submission that he has a choice as to whether he pays the extra money or...

To continue reading

Request your trial
11 cases
  • Bristol City Council v Hassan and another; Bristol City Council v Glastonbury
    • United Kingdom
    • Court of Appeal
    • 23 Mayo 2006
    ...of the premises after the date for giving possession has passed. This is the effect of the recent decision of this court in Harlow District Council v Hall [2006] EWCA Civ 3 The standard form to which we have referred is Form N28. We have set out its salient provisions in Appendix One to th......
  • Places for People Homes Ltd v Sharples
    • United Kingdom
    • Court of Appeal
    • 15 Julio 2011
    ...a wider meaning than afforded in Ezekiel v Orakpo [1977] QB 260." 58 The reasoning in Ezekiel was also applied in Harlow District Council v Hall [2006] EWCA Civ 156, [2006] 1 WLR 2116 to proceedings for possession of premises let by the claimant to the defendant on a secure tenancy wi......
  • Knowsley Housing Trust v White ; Porter v Shepherds Bush Housing Association
    • United Kingdom
    • House of Lords
    • 10 Diciembre 2008
    ...and many actions, involving secure tenancies, which also proceeded on this assumption. For completeness, I should add that in Harlow District Council v Hall [2006] 1 WLR 2116, it was held following some dicta in Burrows [1996] 1 WLR 1448, 1457 that where the terms of suspension were expres......
  • Austin v Southwark London Borough Council
    • United Kingdom
    • Supreme Court
    • 23 Junio 2010
    ...number of cases in the Court of Appeal had proceeded on the assumption that the law was as stated in Thompson: see, for example, Harlow District Council v Hall [2006] 1 WLR 2116. He also said that there would also have been tens of thousands of cases in the county courts, many negotiations......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT