Joram Developments Ltd v Sharratt
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE LAWTON,LORD JUSTICE BROWNE |
| Judgment Date | 07 March 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0307-5 |
| Date | 07 March 1978 |
| Court | Court of Appeal (Civil Division) |
[1978] EWCA Civ J0307-5
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(On Appeal from Order of His Honour Judge Solomon - West London County Court)
Lord Justice Megaw
Lord Justice Lawton and
Lord Justice Browne
Mr. RONALD BERNSTEIN, Q.C. and Mr. JONATHAN GAUNT (instructed by Messrs. Titmuss, Sainer & Webb) appeared on behalf of the Appellants (Plaintiffs).
Mr. DEREK WOOD and Miss T. WOODHOUSE (instructed by Messrs. Douglas, Mann & Co.) appeared on behalf of the Respondent (Defendant).
By paragraph 3 of Schedule 1 to the Rent Act, 1968, it is provided that on the death of the original statutory tenant, not leaving a widow, "a person who was a member of the original tenant's family", and who had been residing with him (that is, with the original tenant) for six months immediately before his death, shall be the statutory tenant.
Lady Salter had for many years lived in Flat 48, Coleherne Court, London, S.W.5. Her contractual tenancy expired in April, 1973. She thereupon became a statutory tenant and so remained until her death. She died at the age of 94 on 1st April, 1976. Mr. Francis Sharratt, the defendant in the action out of which this appeal arises, had lived in Flat 48 since 1958. After Lady Salter's death, the Plaintiffs, Joram Developments Ltd., who had become the owners of Coleherne Court in 1974, sought to obtain possession of the flat as against Mr. Sharratt who continued in occupation. Mr. Sharratt claimed that he had become the statutory tenant on the death of Lady Salter.
The Plaintiffs brought an action in the West London County Court, claiming possession of Flat 48. The sole question in issue before Judge Solomon when the action came on for trial was whether the defendant did or did not satisfy the disqualification that he was "a member of the original tenant's" (Lady Salter's) "family", at the date of her death. If so, there was no doubt that he satisfied also the residence qualification.
The learned judge, having heard evidence on 27th September, 1977, delivered judgment the same day. After a careful review of the evidence and reference to three decisions of this Court, he reached the conclusion that the defendant was a member of Lady Salter's family. Accordingly he gave judgment for the defendant. The Plaintiffs appeal.
The judge unhesitatingly accepted the whole of the evidence of the defendant, who, the judge said, was honest and was clearly trying to be accurate. That conclusion is in no way challenged in this appeal, and I gladly adopt it. It is apparent also from the evidence and from the judge's findings thereon that the defendant's conduct in his relationship with Lady Salter over the 18 or 19 years of their friendship was wholly admirable and of the highest standard. When the two met in 1957, Lady Salter was 75. She had been a widow since 1929. She lived alone in the flat. The defendant was then 24. A friendship arose between them, which grew over the years and lasted without interruption until Lady Salter's death in 1976. It was, as will have been understood from what I have already said, at all times what has been called, in default of a better word in the English language, "platonic". After about 16 months' acquaintance, in 1958, Lady Salter suggested that the defendant should take up residence with her. He rather reluctantly gave up his flat in Woolwich and moved in to the flat in Coleherane Court. There, it would seem, apart from absence on holidays and perhaps at times because of illness, he continued to live until the present day. He was living there when Lady Salter died.
For the first three years or so of his residence there, the defendant paid £4 a week, which Lady Salter estimated was a fair assessment for the bedroom and breakfast. That payment ceased in 1961. Lady Salter at all times paid the rent of the flat, but the other expenses were thereafter shared between the two. Neither was financially dependent on the other. The learned judge has expressly held that none of the defendant's motives were influenced by financial self-interest. I quote from the judgment (page 30): "He said so and I believe him absolutely. He stuck by her to the end. Nobody else in her family did so. Had it not been for the presence of the defendant, in the last five years she would have beenobliged to enter a nursing home or else her family would have had to arrange to receive her into their midst. She was able to remain in her home, to be looked after by a much younger person…. Their relationship was sensitive, loving, intellectual and platonic".
Lady Salter had no children of her own. At one stage she had wanted to call the defendant her son, but he pointed out that his mother was alive. There was, of course, no kinship at all. They were not related in blood, or by marriage, or by any process of adoption. The note of the defendants evidence reads: "I called her Lady Salter and at first she called me Francis, and later Bunny. She asked me when I had been there well over a year possibly two years to call her Aunt or Cousin. I called her Aunt Nora". In the notes of evidence the defendant was recorded as saying in cross-examination: "She looked upon me as her nephew. I was looked upon as her nephew by everyone - her family knew the truth that I was not". In paragraph 10 of an affidavit by Lady Salter's step grandson, Mr. Whelon, put in as evidence on behalf of the defendant, this is said: "I believe that Mr. Sharratt and my grandmother were very close and that my grandmother turned to him for help and companionship as she became older. Their relationship, from the way in which my grandmother spoke of it, was certainly not that of just landlady and lodger, but closer to that of aunt and nephew".
When Lady Salter was in hospital in the course of her final illness, the defendant visited her daily. He was described in the hospital records as being her next-of-kin. Mr. Whelon, when he became aware of this, wrote to the defendant saying: "I am sure it is best to leave it like that as you have done most for her and are closest to her". A nursing sister in the hospital ward said in an affidavit put in evidence on behalf of the defendant: "Lady Clavell-Salter stated that Mr. Frank Sharratt was her step-nephew and wished him to be noted as her next-of-kin".
The phrase "member of the tenant's family", in the selfsame context as its context in paragraph 3 of Schedule 1 to the Rent Act, 1968, was first used by Parliament in section 12 (1) (g) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. The phrase has been considered by this Court since then in a large number of cases in relation to varying facts. The judgments in eight of those cases were carefully analysed, first by counsel for the plaintiffs and then by counsel for the defendant. With great respect to the interesting arguments of counsel, I do not, for reasons which I hope will become clear, find it necessary to follow the same course. To my mind, the decision at which we ought to arrive in the present case is dictated by the decision of this Court in Ross v. Collins (1964) 1 Weekly Law Reports 425.
In Ross v. Collins, Miss Collins, who had no relationship by blood or marriage with the statutory tenant, Mr. McRae, had looked after him devotedly for a substantial time before his death at the age of 92 in 1962. She was nearly 40 years younger. On his death, she claimed to be the statutory tenant as being "a member of the tenant's family" residing with him. In evidence, Miss Collins said that Mr. McRae "treated me as a member of his family…. I always regarded him as a sort of elder relative, partly as my father, partly as my elder brother". They did not address one another by their Christian names; nobody referred to Mr. McRae as her father, nor to Miss Collins as his daughter. They did not pass themselves off as father and daughter. The judge in the County Court rejected Miss Collins's defence to the landlord's claim for possession. He said: "I find that [Miss Collins] never passed as [Mr. McRae's] daughter, nor did she ever regard him as her father and that he never stood to her in loco parentis …. There was no blood relationship between these people, there was no relationship by marriage of these people, and there was no assumption of the title of father by him, and bothboth being of full age when they met there was no question of either one having parental control over the other".
The County Court judge's decision was affirmed by this Court. Lord Justice Pearson, at page 428, said (and I respectfully agree) that it is not easy to extract from the earlier decisions the relevant principles or tests. However, one broad and general Principle, but only a broad and general principle, is, Lord Justice Pearson said, clearly established. That is to be found in the judgment of Lord Justice Cohen in Brock v. Wollams (1949) 2 King's Bench 388, at page 395: "The question the County Court judge should have asked himself was this: Would an ordinary man, addressing his mind to the question whether Mrs. Wollams was a member of the family or not, have answered 'yes' or 'no'?".
In the present case, the learned County Court judge asked himself that question. He held on the facts of the case, "which", he said, "if not unique, must be very rare", that the answer to the question was "yes". Lady Salter and the defendant "achieved through their relationship what must surely be regarded in a popular sense, and in common sense, as a familial nexus. That is to say, a nexus such as one would find only within a family".
Mr. Wood, for the defendant, in his very cogent argument, sub-mitted that, in the light of the Brock v. Wollams principle, the answer by the County Court judge is conclusive. The judge, he contended, cannot be faulted on his assessment of the...
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