Kenny v Preen
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD,LORD JUSTICE PEARSON,LORD JUSTICE DONOVAN |
| Judgment Date | 15 October 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J1015-1 |
| Date | 15 October 1962 |
| Court | Court of Appeal |
[1962] EWCA Civ J1015-1
Lord Justice Ormerod
Lord Justice Donovan and
Lord Justice Pearson
In The Supreme Court of Judicature
Court of Appeal
From Deputy Judge Ellison
Marylebone Country Court
Mr H. Lester (instructed by Winston & Co.) appeared on behalf of the Appellant (Defendant).
Mr P. Sheridan (instructed by Fremont & Co.) appeared on behalf of the Respondent (Plaintiff).
I will ask Lord Justice Pearson to deliver the first Judgment in this case.
This is an Appeal by the defendant landlord, Mr Preen, from a judgment of His Honour Deputy Judge Ellison given at the Marylebone County Court on the 10th May, 1962. The judgment was in favour of the plaintiff tenant, Mrs Kenny, for £100 damages for breach of an implied covenantfor quiet enjoyment of her two-roomed flat in the landlord's house, and for an injunction to restrain the landlord from interfering with the tenant's quiet enjoyment of the flat, and for costs on Scale 3.
There is a cross-appeal by the tenant against the learned Judge's refusal to grant a declaration that her tenancy of the flat is protected by virtue of the Rent Acts, 1920-57.
It will be convenient to refer to the pleadings. The Particulars of Claim, in paragraph 1, state: "The Plaintiff is the tenant and the Defendant is the landlord of two rooms… which said premises the landlord let to the tenant on the 23rd December, 1956, at a rental of £3.12s. per week".
Paragraph 2: "The said tenancy is protected under the provisions of the Rent Acts, 1920 to 1957, by virtue of the fact that the rateable value of the premises comprised therein, if separately apportioned, would be less than £40".
Paragraph 3: "In breach of the covenant for quiet enjoyment implied by law by virtue of the said tenancy the Defendant has wrongfully threatened to evict the Plaintiff from the premises on numerous occasions, and by letter dated 16th January, 1962, the Defendant threatened to remove the Plaintiff's possessions from the said flat".
Then the Defence is quite short, in three paragraphs: "(1) It is denied that the tenancy is a tenancy of unfurnished premises. (2) It is denied that there was any breach as alleged or at all. (3) The Defendant will contend that the Particulars of Claim disclose no cause of action and that the County Court has no jurisdiction to determine the cause".
In the County Court much of the evidence and argument was directed to the question raised by paragraph 1 of the Defence, whether the tenant's tenancy was a tenancy of unfurnished premises so as to be within the protection of the Rent Acts. There was he argument on that question in thisappeal. Mr Lester, in presenting the Appeal on behalf of the landlord, has relied upon another point, which he took in the County Court both as a preliminary objection to the jurisdiction and as an argument on the merits against the tenant's claim. The point is this. Be it assumed that at all material times the tenant had a tenancy of the flat and accordingly there was to be implied a covenant for quiet enjoyment Mr Lester has contended that neither the facts alleged in paragraph 3 of the Particulars of Claim, nor any facts found by the learned Judge, nor any facts which might be regarded as proved by the evidence, could in law constitute a breach of the covenant for quiet enjoyment, and therefore the claim for damages was untenable and should have been rejected, and there was no basis for granting the injunction.
Mr Lester has a further point as to the amount of damages, but I will deal, with that at a later stage. The main question in this appeal is whether there was a breach of the covenant for quiet enjoyment.
In my view there is no discrepancy between the tenant's case as pleaded in paragraph 3 of the Particulars of Claim and the relevant facts revealed by the evidence and found by the learned Judge. The landlord did not ask for further and better particulars of paragraph 3 of the Particulars of Claim, and the wording of that paragraph is wide enough to cover the facts on which the tenant now relies.
At the trial there was an agreed bundle of correspondence, and oral evidence was given by the tenant and by the landlord, and the learned Judge gave a full judgment stating his findings of fact and his views on the legal issues involved. It is evident from his findings that he accepted the tenant's evidence in preference to that of the landlord, and he summarised the general effect of the landlord's letters as saying to the tenant in the loudest possible terms: "Get out"and in a later passage of his judgment the learned Judge said: "I also find that the conduct of the defendant landlord in the correspondence by reason of his letters as a whole - note the dates, the frequent occurrence of these letters and the terms of them, consider the evidence of the Plaintiff concerning shouting at her and knocking at her door, all obviously in connection with the point of view advanced in the correspondence pressed upon her - it seems to me perfectly plain that Mr Preen was telling her that she had no business to be there any longer and she must get out".
The learned Judge, however, was taking the view in law that a mere challenge by the landlord to the tenant's title, a denial of her title, would in itself constitute a breach of the covenant. As I am not able to adopt that view of the law I must examine the correspondence and the principal passage in the oral evidence in order to ascertain more fully what the landlord's conduct was and, in particular, the manner and content of his threatening communications.
I will not refer to all of these letters but to the most important of them. On the 3rd March, 1961, the landlord wrote to the tenant; "Dear Madam, re Notice to Quit, As you are aware that your notice to quit the two rooms has expired and I must make it clear to you that I urgently require these rooms for myself. You have always complained about something all the time you have been here likewise you did at your previous address and I have tried to do all I can for you in every way possible. Therefore I intend starting work on the rooms early next week. The delay in moving is costing me unnecessary expense and I must hold you responsible for this cost".
At the moment when the landlord wrote that letter he may have believed that he had a clear right to possession or he may not, but on the following page, on the same date, 3rd. March,there is a letter from the solicitors for the tenant explaining the position to him, and making It quite dear that in their view, as they Maid, "the aforementioned premises let to our client are not furnished premises within the meaning of the" various Acts, and they say! "It follows from that that our client enjoys the protection of the Rent Acts". They go on to say: "We have advised our client accordingly, and that she need not move from the premises and that the effect of a Notice to Quit would only be to turn her from a contractual tenant into a statutory tenant. In any event we are instructed that the Notice to Quit, which we understand was put into a rent book, was not a valid notice". Then they ask for the restoration of the rent book to the Plaintiff, and go on to say: "Finally we have advised our client that if you wish to prefer any claim to the premises you are obliged to make a claim through the local County Court. In this event our client will seek legal aid in order to defend any proceedings you may wish to institute. It is, however, to be hoped that matters can be settled amicably between yourself and our client rather than have recourse to legal proceedings".
It Is significant that the landlord did not make any answer to that letter from the tenant's solicitors raising a legal issue. Instead of that, he chose to write again to the tenant herself, and he said! "I have received a letter from Oliver O. Fisher & Co. regarding your tenancy of the first floor two rooms. It seems that you have failed to tell these solicitors the truth and it is no good you trying to make false accusations as I will not stand for It", Then he goes on to argue the question, and he says: "You have now gone far enough and I require" possession "within seven days otherwise I intend forcing my rights. All damage caused by you will be charged for".
On the 29th March he writes again to the tenant: "It seems that you wiah me to take drastic measures against you tohave you evicted from the rooms. You have caused trouble all the time you have been a tenant of mine and now you are nearly two months in occupation of the rooms and no rent has been paid. I will claim heavy damages against you, us it is costing me now over £5 every week now for apace I urgently require for my business. You have made excuses and actually not told the truth on many occasions and now I must enforce my rights. It is now up to you to vacate the rooms to save any further unpleasantness".
There were further letters, and then at page 9, on 4th November, he wrote to her: "Dear Madam, You are very much in arrears of rent due and unless same is brought up to date by 10 a. m. Monday, 6th November, I will have no other alternative but to evict you next week. I have been very tolerant with you, which no other person would have been". In my view "evict you" must refer to physical eviction, because he is threatening to evict her next week. That cannot refer to legal proceedings. It means physical eviction, presumably by force if necessary.
There is a further letter, and on page 11 there is a further notice to quit which may or may not have been valid.
Then on page 12 of the bundle, on 12th December, the landlord writes. "I will be taking occupation of the two rooms on the 2nd of January as when the Notice to Quit is...
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