Knowsley Housing Trust v Revell Helena Housing Ltd v Curtis
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Gibson |
| Judgment Date | 09 April 2003 |
| Neutral Citation | [2003] EWCA Civ 496 |
| Docket Number | Case No: B2/2002/2448; B2/2002/2478 |
| Date | 09 April 2003 |
| Court | Court of Appeal (Civil Division) |
[2003] EWCA Civ 496
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ST HELENS COUNTY COURT
(His Honour Judge Marshall Evans QC sitting at
Liverpool County Court)
Lord Justice Peter Gibson
Lord Justice Waller and Lord Justice Jonathan Parker
Case No: B2/2002/2448; B2/2002/2478
Jan Luba QC; Mr Martin Littler (instructed by Messrs Stephensons, St Helens for the Defendants/Appellants)
Ashley Underwood QC; Mr Michael Singleton (instructed by Anthony Collins Solicitors; Howarth Goodman for the Claimants/Respondents)
Lord Justice Waller :
On 19 th July 2002 there were a large number of cases in the Possession List of Deputy District Judge Dawson at the St Helens County Court. Included were many claims where the proceedings had been commenced by a Local Authority before transfer of its stock of housing to a Registered Social Landlord (RSL), and where that transfer had taken place shortly before 19 th July 2002. Those proceedings had only been commenced in April/May 2002 after service by the Local Authority landlord of Notices Seeking Possession in February/March 2002 on the tenants as "secure" tenants under section 83 of the Housing Act 1985. Following the Stock Transfer the landlords had become the RSLs. Since on transfer the landlords were no longer within "the landlord condition" required by section 79(1), and identified by section 80(1) of the 1985 Act, the tenancies from the date of transfer were no longer "secure" tenancies. The tenants had by virtue of section 1(1) of the Housing Act 1988 become "assured" tenants and their security of tenure had become governed by the provisions of that Act.
Mr Singleton prepared for the court a very useful summary of the grounds on which possession might be sought under the "secure" tenancy regime and the corresponding grounds under the "assured" tenancy regime. The differences are small, subject to one important point. Under the "assured" tenancy regime, by virtue of section 7(3) of the 1988 Act, if certain grounds are established the court is bound to make an order for possession ("the mandatory grounds").
Two of the proceedings before the Deputy District Judge were Knowsley Metropolitan Borough Council v Arthur Revell (proceedings alleging anti-social behaviour) and St Helens Borough Council v Gillian Curtis (proceedings alleging arrears of rent). One tenant in proceedings in the Deputy District Judge's list took the point that the transferee RSL had not served a notice under section 8 of the 1988 Act relating to "assured" tenancies and thus that the court had no jurisdiction to entertain the proceedings. That section provides:
"(1) The court shall not entertain proceedings for possession of a dwelling-house let on an assured tenancy unless –
(a) the landlord or, in the case of joint landlords, at least one of them has served on the tenant a notice in accordance with this section and the proceedings are begun within the time limits stated in the notice in accordance with subsections (3) and (4) below; or
(b) the court considers it just and equitable to dispense with the requirement of such a notice.
(2) The court shall not make an order for possession on any of the grounds in Schedule 2 to this Act unless that ground and particulars of it are specified in the notice under this section; but the grounds specified in such a notice may be altered or added to with the leave of the court.
(3) A notice under this section is one in the prescribed form informing the tenant that –
(a) the landlord intends to begin proceedings for possession of the dwelling-house on one or more of the grounds specified in the notice; and
(b) those proceedings will not begin earlier than a date specified in the notice which, without prejudice to any additional limitation under subsection (4) below, shall not be earlier than the expiry of the period of two weeks from the date of service of the notice; and
(c) those proceedings will not begin later than twelve months from the date of service of the notice.
(4) If a notice under this section specifies, in accordance with subsection (3)(a) above, any of Grounds 1, 2, 5 to 7, 9 and 16 in Schedule 2 to this Act (whether with or without other grounds), the date specified in the notice as mentioned in subsection (3)(b) above shall not be earlier than –
(a) two months from the date of service of the notice; and
(b) if the tenancy is a periodic tenancy, the earliest date on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the date of service of the notice under this section.
(5) The court may not exercise the power conferred by subsection (1)(b) above if the landlord seeks to recover possession on Ground 8 in Schedule 2 to this Act.
(6)….."
The Deputy District Judge appreciated that a point of some significance was being raised. Many Local Authorities were transferring their housing stock to RSLs. Not only in the list for that day but in many lists there would be proceedings commenced prior to transfer, where RSLs might seek to continue them. Should an RSL simply be allowed to step into the shoes of the Local Authority? Should the court simply allow substitution of the RSL for the Local Authority, take cognisance of the fact that a notice had been served under the "secure" tenancy regime and dispense with notice under the "assured" tenancy regime? Did consideration of that question allow for one answer that would cover all cases in the list? In particular, might it be appropriate to take the view that, although the question of dispensing with a notice went to the court's jurisdiction, provided the court could later take account of such matters as a tenant might raise at the stage of considering whether it was reasonable to grant possession, a notice could be dispensed with without inquiry into the particular circumstances relating to that tenant?
The Deputy District Judge selected these two cases as suitable to adjourn to the Designated Civil Judge His Honour Judge Marshall-Evans QC so that he could give guidance. At some stage Knowsley Housing Trust (KHT) and Helena Housing Limited (Helena) as the relevant RSLs were substituted for the transferor Local Authorities. It seems that in relation to KHT this may not have happened formally until late in the process (by order of HHJ Marshall-Evans QC himself on 12 th September 2002), but that in relation to Helena they had made an application under CPR Part 19.2(4)(a) without notice which had been granted on 4 th July 2002. We have not seen what statements supported those applications, and it seems that there was some criticism of the procedures followed in Mr Luba QC's written submissions before the judge (paragraph 6). In addition by permission of the Deputy District Judge, amended particulars of claim were put in, seeking to suggest that the original notices served under the "secure" tenancy regime, and notices that would have been required under the "assured" tenancy regime, were "substantially to the same effect"(see the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1997 reg 2). If the notices were substantially to the same effect, they could have been relied on as notices under section 8 of the 1988 Act. In the alternative the amended particulars of claim sought an order that notices under section 8 should be dispensed with under section 8(1)(b).
His Honour Judge Marshall-Evans QC heard the matter on 12 th September 2002, and delivered a judgment in writing on 6 November 2002. At the hearing Mr Underwood QC, who represented the RSLs before the judge as he did before us, abandoned any argument that the notices were "substantially to the same effect". Without prejudice to that abandonment, he produced drafts of what the notice would have been like in the two individual cases under the 1988 Act for comparison with the notices the tenants had received under the 1985 Act. The differences, so far as the substance of the notices was concerned, were indiscernible. He submitted accordingly that the original notices and the original proceedings related to the same or effectively the same breaches of the same tenancy agreements under the same terms, and sought the same relief as the RSL would now seek (i.e. the RSLs would not seek relief on the mandatory grounds). He submitted accordingly that it was appropriate to dispense with notice under section 8(1)(b). He furthermore argued that it was appropriate for that dispensation to be granted in all cases where the above conditions were fulfilled without having regard to the particular circumstances of individual cases. These were submissions that the judge accepted. The judge therefore did not go into the individual circumstances of the two cases before him, and his ruling was clearly intended to ease the task of any District Judge taking the Possession List. It would allow the District Judge simply to check whether the case was a case where the RSL was relying on the same breach or effectively the same breach of the same tenancy under the same terms, and claiming no mandatory relief. If so satisfied, he could then, without considering the detail of anything which the tenant might have to say at that stage, dispense with notice and leave the tenant to raise later matters at the stage when the court was considering whether it would be reasonable to grant possession.
The judge granted permission to appeal, and...
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Braintree District Council v Hilda Vincent and Others
...That passage was cited with approval in paragraph 11 of Waller LJ's judgment in Knowsley Housing Trust v Arthur Revell 9 April 2003, 2003 EWCA Civ 496. In this case, the circumstances were unusual in procedural terms. Possession proceedings had been brought by the council against two alleg......