Lewis v Lewis
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,MR JUSTICE ANTHONY LINCOLN |
| Judgment Date | 05 March 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0305-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 March 1984 |
| Docket Number | 84/0097 |
[1984] EWCA Civ J0305-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
On appeal from Order of His Honour Judge Aron Owen
sitting as a High Court Judge.
Royal Courts of Justice,
The President (Sir John Arnold)
and
Mr Justice Anthony Lincoln
84/0097
and
Mr DAVID NEUBERGER (instructed by Messrs Memery, Crystal & Co.) appeared on behalf of the Appellants (Second Respondents), Metropolitan Properties Co. Ltd.
Mr DANIEL PEARCE-HIGGINS (instructed by Messrs Max Bitel, Greene & Co. appeared on behalf of the Respondent (Applicant), Mrs Lewis.
I shall ask Mr Justice Anthony Lincoln to deliver the first judgment in this case.
This is an appeal against an Order of His Honour Judge Aron Owen, sitting as a High Court Judge, made on the 18th November 1983. He had before him an application by an ex-wife, Mrs Hazel Lewis, under the Matrimonial Homes and Property Act, 1981, relating to a flat which she occupied at 10F Hyde Park Mansions, Old Marylebone Road, London, W.2. Her ex-husband did not oppose the application, but the landlords did. The Judge directed that the ex-husband should cease to be entitled to occupy the flat and that the ex-wife should be deemed to be the statutory tenant. The direction was made under Schedule 2, Part II, paragraph 3(1), of the 1981 Act. The landlords now appeal against that direction. The appeal raises the question whether the 1981 Act may properly be construed to have retroactive effect and, if so, the further question whether the Order could be made in the circumstances of this case.
The material facts are that on the 8th December 1970 the appellant landlords granted Mr Geoffrey Lewis a renewal of his lease of the flat. It was a term certain to expire on the 28th September 1975. At the time of the renewal he and his wife were still married and they lived at the flat with their children. It is not disputed that the renewed tenancy thus granted was a protected tenancy under Section 1 of the Rent Act 1977, fulfilling all the required conditions of that Act. On the expiry of his tenancy Mr Lewis held over and thus became a statutory tenant. On the 1st October 1975 he left his wife and the flat, never to return, but she continued to live there, herself paying the rent. On the 3rd March 1978 Mrs Lewis obtained a decree nisi which became absolute on the 4th August. Neither Mr Lewis nor Mrs Lewis took legal advice or were represented in those divorce proceedings. It was no doubt for this reason that before obtaining her decree absolute Mrs Lewis failed to make an application under Section 7 of the Matrimonial Homes Act 1967 for a transfer of her husband's statutory tenancy. As the law then stood, under sub-section (5) of the 1967 Act such an application ceased to be available to her on and after the issue of the decree absolute.
Now Mr Lewis's statutory tenancy survived his departure from the flat because his wife remained in residence there and he was deemed to be himself in residence. But the statutory tenancy did not survive the decree absolute: see Metropolitan Properties Co. Ltd. v. Cronan, 44 Property and Compensation Reports, page 1. Mrs Lewis now became a person without any right to occupy the flat and subject to an eviction order. This state of affairs continued until March 1982. During the intervening period of 3 1/2 years Mrs Lewis paid and the landlords accepted the rent. The latter were until that date wholly unaware of the divorce and of Mr Lewis's departure from the flat.
When they became aware that Mr Lewis was no longer there and in the belief that he had died the landlords began proceedings against Mrs Lewis. They soon learned that Mr Lewis was alive and joined him as second defendant. They claimed that Mrs Lewis occupied as a trespasser and that Mr Lewis's statutory tenancy ended with the decree absolute. Judge Owen, in his capacity as County Court Judge, tried the claim and held that Mrs Lewis was not the tenant.
Since this appeal raises a question of construction, the merits of the respective parties play no part in the final determination. But it is to be observed that if Mrs Lewis had been advised during the divorce proceedings, it is probable that she would well before the decree absolute have had her attention drawn to such claims as were available to her, including an application for transfer of her husband's statutory tenancy under the 1967 Act, and the distressing situation in which she now finds herself would never have arisen.
As it is, she now applies under the 1981 Act and she has to show that the Act is retrospective in its operation, in the sense that the powers given to the Courts in that Act may be exercised in relation to a decree of divorce granted before the commencement of the Act and retroactive in its effect, in the sense that such powers when exercised will transform an act which was unlawful under the then current law, namely her trespass in the flat, into a lawful act, namely a deemed statutory tenancy under the 1981 Act. She has to show, in effect, that the right to apply for a transfer which was extinguished under the Act of 1967 by the decree absolute is capable of being resurrected under the terms of the 1981 Act.
The terms of paragraph 1, sub-paragraph (1), of Schedule 2 are as follows: "Where one spouse is entitled, either in his or her own right or jointly with the other spouse, to occupy a dwelling house by virtue of…a protected tenancy or statutory tenancy within the meaning of the Rent Act 1977…then, on granting a decree of divorce…or at any time thereafter (whether, in the case of a decree of divorce, before or after the decree is made absolute), the court by which the decree is granted may make an order under Part II below"; and paragraph 3 in Part II runs as follows, sub-paragraph (1): "Where the spouse is entitled to occupy the dwelling house by virtue of a statutory tenancy within the meaning of the Rent Act 1977, the court may by order direct that, as from such date as may be specified in the order, that spouse shall cease to be entitled to occupy the dwelling house and that the other spouse shall be deemed to be the tenant…under that statutory tenancy".
It is necessary to consider the way in which this schedule is brought into effect in order to dispose of a very brief argument put forward on behalf of the Respondent. Section 6 of the 1981 Act, which came into force on the 14th February 1983, substituted the schedule for the previous time limit in Section 7 of the 1967 Act. It was argued that this method of amending the earlier section suggests that the later terms should take effect as if they were part of the 1967 Act and therefore in force at the time. This was not argued in the Court below and no authority was cited to support the proposition. But in any case the argument stands or falls with the larger proposition as to the Schedule itself.
The general principles of statutory construction with regard to retrospectivity have recently been re-affirmed in Yew Bon Tew v. Kenderaan, 1983 Appeal Cases, page 553. In that case a defendant had acquired an entitlement to plead a time-bar. Subsequent legislation had extended the limitation period. It was held that such entitlement was an accrued right and that the later legislation providing for a longer limitation period was not to be construed retrospectively so as to deprive the defendant of his defence unless such a construction was unavoidable on the language used. The defendant had an accrued right to plead that the plaintiff's action was barred. Lord Brightman said at page 563: "the proper approach to the construction of the Act of 1974 is not to decide what label to apply to it, procedural or otherwise, but to see whether the statute, if applied retrospectively to a particular type of case, would impair existing rights and obligations"; and later he said: "An accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is in every sense a right, even though it arises under an act which is procedural. It is a right which is not to be taken away by conferring on the statute a retrospective operation, unless such a construction is unavoidable". He continues: "The plain purpose of the Act of 1974, read with the Ordinance of 1948, was to give and not to deprive; it was to give to a potential defendant, who was not on June 13, 1974, possessed of an accrued limitation defence, a right to plead such a defence at the expiration of the new statutory period. The purpose was not to deprive a potential defendant of a limitation defence which he already possessed".
So too in the instant case the purpose of the 1981 Act was to give spouses the right to apply "on and after the decree absolute" for a transfer of interest. On the granting of the decree absolute and thereafter the ex-husband Mr Lewis and the appellant landlords had acquired a vested right to defeat a transfer application under the 1967 Act. If the 1981 Act is to be applied retrospectively, it impairs and indeed defeats that existing right. If the decision in Yew Bon Tew is applicable, then it becomes necessary to see whether anything in the language of Schedule 2 of the 1981 Act points to such a...
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