Helby v Rafferty
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAMP,LORD JUSTICE ROSKILL |
| Judgment Date | 04 May 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0504-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 May 1978 |
[1978] EWCA Civ J0504-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Stamp
Lord Justice Roskill
Lord Justice Cumming-Bruce
MR. J. A. SPEED (instructed by Messrs. Moss Beachley) appeared on behalf of the Appellant.
MR. R. W. BAILEY-KING (instructed by Messrs. Keene Marsland & Co.) appeared on behalf of the Respondent.
This is an action by a plaintiff landlady for possession of premises known as Flat No. 1, Abercorn Place, N.W.6. The appeal is by the defendant, Mr. Charles Rafferty, who appeals against an order of His Honour Judge Curtis Raleigh made on 7th November last in Bloomsbury and Marylebone County Court, whereby Mr. Rafferty was ordered to deliver up possession of the premises.
The late Miss Barbara Taylor at the date of her death was tenant of the flat. She had been there since about 1966 as tenant and in 1969 the term of her lease expired and she thereupon became a statutory tenant. She died on 15th March, 1977. From about June, 1972, (that is to say about five years) Mr. Rafferty had been living in the flat. He had known Miss Taylor for some time before he took up residence there, and when he did take up residence there he had become her lover, and there they lived together until the date of her death sharing board and bed.
Mr. Rafferty claims that on Miss Taylor's death he became the statutory tenant. Whether that claim is well-founded turns on what is now section 2(1)(b) of the Rent Act 1977 introducing the first schedule to that Act which provides:
"1. Paragraph 2 or, as the case may be, paragraph 3 below shall have effect, subject to section 2(3) of this Act, for the pur pose of determining who is the statutory tenant of a dwelling-house by succession after the death of the person (in this Part of this Schedule referred to as 'the original tenant') who, immediately before his death, was a protected tenant of the dwelling-house or the statutory tenant of it by virtue of bis previous protected tenancy.
"2. If the original tenant was a man who died leaving a widow Who was residing with him at his death then, after his death, the widow shall be the statutory tenant if and so long as she occupies the dwelling-house as her residence.
"3. Where paragraph 2 above does not apply, but a person who was a member of the original tenant's family was residing with him at the time of and for the period of 6 months immediately before his death then, after his death, that person or if there is more than one such person such one of them as may be decided by agreement, or in default of agreement by the county court, shall be the statutory tenant if and so long as he occupies the dwelling-house as his residence."
The question accordingly turns on whether Mr. Rafferty was at the date of Miss Taylor's death a member of Miss Taylor's family within the meaning of that paragraph of the first schedule.
Had the case fallen to be decided prior to Dyson Holdings Ltd. v. Fox, reported in (1976) 1 Queen's Bench at page 512, we would have been constrained to dismiss the appeal on the authority of Gammans v. Ekins (1950) 2 King's Bench 328 - a decision of this court which was subsequently applied by this court in Ross v. Collins (1964) 1 All England Law Reports 861.
The ordinary or natural meaning of the expression, "member of a family" would not, in my judgment, apply to a person in the position of Mr. Rafferty. The way the matter was put in Gammans v. Ekins by Lord Justice Asquith who gave the first judgment in that case (a very short judgment) was this. I read from page 331 of the report: "The judge has not found which, and says that it makes no difference; but if their relations were platonic, I can see no principle on which it could be said that these two were members of the same family, which would not require the court to predicate the same of two old cronies of the same sex innocently sharing a flat.
"If, on the other hand, the relationship involves sexual relations, it seems to me anomalous that a person can acquire a 'status of irremovability' by living or having lived in sin, even if the liaison has not been a mere casual encounter but protracted in time and conclusive in character.
"But I would decide the case on a simpler view. To say of two people masquerading, as these two were, as husband and wife (there being no children to complicate the picture) that they were members of the same family, seems to be an abuse of the English language, and I would accordingly allow the appeal."
I interpolate at that point to make it perfectly clear that there was no masquerading on the part of Mr. Rafferty and Miss Taylor. There is no evidence that Miss" Taylor ever called herself Mrs. Rafferty. Lord Justice Jenkins in that same case remarked that it would be extending the relevant section, which was then slightly different in wording, beyond all reason to hold that it applied when it was no more than a liaison between two elderly people who chose to pose as a married couple when they were not in fact.
However, the majority of the court in Dyson Holdings Ltd. v. Fox, (that is to say Lord Justice James and Lord Justice Bridge) following the view expressed in Brock and others v. Wollams (194-9) King's Bench 388 that the word "family" should be given its popular meaning, felt able to distinguish Gammons v. Ekins on the ground that during the period intervening between that decision and the relevant time in Dyson Holdings Ltd. v. Fox the popular meaning of "family" had changed and by then comprised a situation where the two parties, man and woman, had been living together permanently and for a very long time - in that case some 40 years.
I confess that, apart from authority, I would have taken the view that the language of a statute by whatever process you apply to its construction - whether you construe it in its natural and ordinary meaning or whether you construe it in a popular way or whether you construe it in what has sometimes been called "a legal way" (and I am not sure I understand what the difference is) - cannot alter its meaning from time to time and that, in order tofind out what Parliament intended by the statute, you must ascertain what the words of the statute meant when Parliament used those words. There is the further difficulty, as I see it, that the language of the relevant statutory provision has been repeated in successive Rent Acts with only a very slightly different arrangement of the words. As I rather indicated, I think, it appears to me that the difficulty of determining whether a particular meaning of the words in an Act of Parliament would be given to those words by popular vote or not would be of a different kind. Do you listen to the vociferous minority or do you imagine what the silent majority might have said at a particular time?
However, whatever my own doubts are, I must loyally follow the decision in Dyson Holdings Ltd. v. Fox. I observe that the Master of the Rolls, while agreeing with the decision, justified it on a somewhat different ground to that taken by the other Lords Justices, namely, on the ground that the Court of Appeal is not absolutely bound by a previous decision where it can be seen, as he put it, that it can no longer be supported. He said this at page 510 of the report: "When an ordinary word comes to be applied to similar facts, in one case after another, it is very important that the various tribunals of fact should each apply it in the same way. For instance, if the question comes up: Is an unmarried woman (living for many years as a man's wife) a member of his family? each tribunal of fact should give the same answer. It would be intolerable if half the judges gave one answer and the other half another. The Court of Appeal would have to give a definite ruling, one way or the other, just as we did in the seat belt case." That was a case referred to. The Master of the Rolls continued:
"So here in the present case, I think this court should give a definite ruling. We should rule that in this case this- lady was a member of the tenant's family residing with him at the time of hisdeath. As such, she was entitled to the protection of the Rent Acts."
In Dyson Holdings Ltd. v. Fox, the facts (which I take from the headnote) are these: "The defendant lived with the tenant of a house as if she were his wife for 21 years until his death in 1961. They never married and had no children. After his death the defendant continued to live in the house for which she paid rent as if she were his widow until the plaintiffs, who owned the house, learned in 1973 that she was not in fact his widow. The plaintiffs accepted no further rent and brought proceedings for possession of the house against her as a trespasser. The defendant pleaded that at all times after the commencement of the tenancy and before the tenant's death she had resided with him as a member of his family and that she continued to occupy the house as her residence." As I have indicated, the Court of Appeal held that her claim was well-founded.
In the instant case the association between Mr. Rafferty and Miss Taylor endured for five years and it only came to an end as a result of Miss Taylor's comparatively early death. I will refer to the facts of this case hereafter. If, however, one were to follow the dicta of the Master of the Rolls in Dyson Holdings Ltd. v. Fox, it would hardly be possible to distinguish the facts of the instant case from those in Dyson Holdings Ltd. v. Fox. The only guidance to be found in the judgments of the other Lords Justices in the Dyson case as to the approach to be adopted when you define this kind of situation is this. First per Lord Justice James at page 511 just below D, referring to the relationship, he says: "… it is not restricted to blood...
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...Ltd [2001] 1 AC 27, per Lord Clyde at 49-50, where he said in the context of the meaning of "family" in the Rent Acts: "The judges in Helby v. Rafferty [1979] 1 WLR 13 had difficulty in accepting that a word which had been repeated throughout the successive Rent Acts could change its mean......
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Fitzpatrick v Sterling Housing Association Ltd
...20In the application of this "ordinary meaning", "de facto" approach there are not surprisingly decisions on both sides of the line. In Helby v. Rafferty [1979] 1 W.L.R. 13, the court refused to hold that a man who had lived with a woman tenant for five years before her death were part of ......
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Fitzpatrick v Sterling Housing Association Ltd
...the same family, whether they have children or not." 18Although the rationale of Dyson was doubted by another division of this court in Helby v Rafferty [1979] 1 WLR 13, it was held to be binding. On the particular facts of that case (an unmarried couple who made no attempt at pretence of ......
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