Harrow London Borough Council v Johnstone
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE HOBHOUSE,SIR ROGER PARKER |
| Judgment Date | 16 March 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0316-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 95/5041/E |
| Date | 16 March 1995 |
[1995] EWCA Civ J0316-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(His Honour Judge Hunter)
Before: Lord Justice Russell Lord Justice Hobhouse and Sir Roger Parker
95/5041/E
94/1216/E
MR F FEEHAN (instructed by Solicitor to the Council, London Borough of Harrow, Harrow 3) appeared on behalf of the Appellant.
MR A JACK (instructed by Rosenbergs, London NW5 2AA) appeared on behalf of the Respondent.
( )
Thursday, 16th March 1995
This is a plaintiff's appeal from an Order of His Honour Judge Hunter sitting at Willesden County Court who on 9th August 1994 dismissed the plaintiff local authority's application for possession of a dwelling house No.5 Waghorn Road, Kenton, Harrow, Middlesex.
The property was let by the plaintiffs to the defendant and his wife under a joint weekly tenancy beginning on 3rd April 1987 which enjoyed protection under Part IV of the Housing Act 1985.
Unhappily matrimonial difficulties arose between Mr and Mrs Johnstone and at some date prior to the 3rd February 1994 Mrs Johnstone left the property which had been the matrimonial home.
On 3rd February 1994 the defendant obtained an Injunction against his wife. So far as material it provided that Laura Johnstone (the wife) was forbidden (whether by herself or by instructing or encouraging any other person) to exclude or attempt to exclude the applicant Maurice Johnstone from 5 Waghorn Road, Kenton, Harrow, Middlesex. The Injunction was expressed to be one which remained in force until further Order of the Court. It has never been discharged.
The defendant remained in occupation of the house. The plaintiffs decided to re-house Mrs Johnstone and her children, and in accordance with its policy it required Mrs Johnstone first to terminate the joint tenancy. This she purported to do by the service of a Notice to Quit dated 22nd March 1994. The document, addressed to the head of the plaintiff's housing services read as follows:-
"Mrs Laura P. Johnstone hereby gives you notice that I shall quit and deliver up possession of 5 Waghorn Road, Kenton, jointly held by me as your tenant on 25th April 1994 or at the end of the period of my tenancy which will expire next after the expiry of four weeks after the service of this Notice on you".
The defendant knew nothing of this Notice to Quit until a copy of it was sent by the plaintiffs with their letter addressed to him on 30th March 1994.
The plaintiffs had become aware of the Injunction not later than 15th April 1994. The next development was an application for possession by the plaintiffs in the Willesden County Court by a Summons accompanied by the particulars of claim dated 17th June 1994.
No defence was filed prior to the date of the hearing on 9th August 1994. In a Defence then served upon the plaintiffs the defendant pleaded that Laura Johnstone was in breach of the Injunction and in contempt of Court by giving the Notice to Quit. Alternatively, the plaintiffs by bringing and continuing the proceedings with knowledge of the Injunction aided and abetted Mrs Johnstone in its breach and was itself in contempt. The proceedings were said to be an abuse of process.
The Judge, having rehearsed the facts, made the following findings —He was in grave doubt about the validity of the Notice to Quit. It was, he said, procured by the Council for its own convenience. This was plainly true but in my judgment it was not this feature which invalidated the Notice to Quit. The Judge was referred to the London Borough of Hammersmith & Fulham v. Monk [1992] 1 AC 478. Save for the existence of the Injunction in the instant case the facts in Monk's case are indistinguishable from those which this Court has to consider. It was held in the House of Lords that a contractual period of a tenancy held by two joint tenants continued only so long as they each agreed on its continuation, and that in the absence of any term in the tenancy agreement to the contrary, a periodic tenancy was determinable by a Notice to Quit given by one joint tenant without the concurrence of the other joint tenant. At page 490 Lord Bridge said:
"The fact that the law regards a tenancy from year to year which has continued for a number of years, considered retrospectively, as a single term in no way effects the principle that continuation beyond the end of each year depends on the will of the parties that it should continue or that, considered prospectively, the tenancy continues no further than the parties have already impliedly agreed upon by their omission to serve Notice to Quit".
The Judge also apparently took the view that the terms of Clause 19 of the Tenancy Agreement between the plaintiffs and Mr and Mrs Johnstone precluded one of the tenants serving an effective Notice to Quit. In my opinion in so finding the Judge was in error. The terms of the Tenancy Agreement were essentially the same as in Monk's case.
Finally the Judge held that
"the Council have aided and abetted the breach (of the Injunction) and in a sense the Borough is in contempt of Court".
It is this finding that has led to most of the submissions we have listened to in this Court.
Mr Jack on behalf of the defendant submits that Mrs Johnstone was in contempt when she served the Notice to Quit because she must be taken as understanding that that was a step in the process of evicting her husband from the matrimonial home contrary to the terms of the Injunction. For the local authority it was submitted that Mrs Johnstone was entitled to serve the Notice to Quit, that it did bring to an end the joint tenancy and that the local authority, not being parties to the Injunction, were entitled to bring the proceedings for possession.
For my part and in agreement with the Judge I take the view that Mrs Johnstone by serving the Notice to Quit might well be regarded as in contempt of Court, but, more importantly, the local authority should be so regarded in the sense that with knowledge of the Injunction they sought possession of the dwelling house although the defendant was protected from eviction at the suit of his wife. The fact that the plaintiffs were not parties to the obtaining of the Injunction is, in my judgment, not to the point. The institution of the proceedings involved an interference with the administration of justice in the sense that those proceedings sought to achieve a result which, whilst the Injunction remained in force, was not open to Mrs Johnstone who was an essential link in the action of the local authority seeking possession. Mr Jack relied for this proposition upon Attorney General v Newspaper Publishing Plc & Others [1988] Ch.D.333.
Since the hearing of the appeal Mr Jack has also drawn our attention to Clarke & Others v. Chadburn & Ors [1985] 1 WLR 78. The facts were far removed from the instant case but some observations of Sir Robert Megarry V.C. are pertinent. He said at page 80:
"I need not cite authority for the proposition but it is of high importance that Orders of the Court should be obeyed. Wilful disobedience to an Order of the Court is punishable as a contempt of court and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some change in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course if an act is done it is not undone merely by pointing out that it was done in breach of the law. ……It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good and not tainted by the illegality that produced them….even if the defendants thought that the Injunction was improperly obtained or too wide in its terms, that provides no excise for disobeying it. The remedy is to apply to vary or to discharge it."
In my judgment the Notice to Quit given by Mrs Johnstone cannot be relied upon as determining the tenancy either by Mrs Johnstone or by the local authority so long as the Injunction is extant. Upon these bases, therefore, I have come to the conclusion that the Judge was entitled on the material before him to refuse the plaintiffs' claim for possession.
What of the future? Mrs Johnstone does not wish to reside at 5 Waghorn Road. She has been rehoused. The parties have embarked upon divorce proceedings. There does not seem to be any impediment to a discharge of the Injunction which can no longer serve a useful purpose. But this has not yet been done by or on behalf of Mrs Johnstone.
There is the further complication, however, that the defendant may have an interest in the former matrimonial home which he may be entitled to have taken into account in any future property adjustment proceedings. None of those matters were argued before the Judge. Ultimately, it may transpire that the defendant has no immediate interest calling for protection in the matrimonial proceedings and in that event the problem of the injunction having disappeared from the case, it may be that the local authority will be able to institute fresh proceedings. These problems, however, are properly matters for resolution in the pending divorce proceedings, and in my judgment they do not effect the decision reached by the Judge in the County Court. I would dismiss the appeal.
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