Liverpool City Council v Irwin
|Lord Wilberforce,Lord Cross of Chelsea,Lord Salmon,Lord Edmund-Davies,Lord Fraser of Tullybelton
|31 March 1976
|Judgment citation (vLex)
| UKHL J0331-3
|31 March 1976
|House of Lords
 UKHL J0331-3
Lord Cross of Chelsea
Lord Fraser of Tullybelton
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Liverpool City Council (as successors to the Lord Mayor, Aldermen and Citizens of the City of Liverpool) against Irwin (Assisted Person) and another (Assisted Person), That the Committee had heard Counsel, as well on Monday the 16th, as on Tuesday the 17th and Wednesday the 18th, days of February last upon the Petition and Appeal of Leslie Irwin and Maureen Irwin of number 50 Haigh Heights Liverpool, in the County of Merseyside, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal, of the 20th day of June 1975, so far as regards the words "( i) The said Judgment on the Counterclaim be set aside and in lieu thereof Judgment be entered for the Plaintiffs," might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; as also upon the Case of Liverpool City Council, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 20th day of June 1975, in part complained of in the said Appeal, be, and the same is hereby. Varied, and that the Cause be, and the same is hereby, remitted back to the Liverpool County Court with a Declaration that the Respondents have been in breach of their statutory obligation under section 32(1) of the Housing Act 1961: And is it further Ordered, That so far as regards paragraph 3 of the Appellants' Counterclaim, the Order of Her Majesty's Court of Appeal of the 20th day of June, 1975 be, and the same is hereby, Set Aside: And it is further Ordered, That Judgment be entered for the Respondents except so far as aforesaid: And it is further Ordered, That the Respondents do pay to the Appellants, damages in the sum of £5 (Five pounds) in respect of the said breach of the Housing Act 1961: And it is also further Ordered, That there be no Order as to Costs in respect of the said Appeal to this House, save that the Cost of the Appellants be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974, the amount thereof to be certified by the Clerk of the Parliaments.
This case is of general importance, since it concerns the obligations of local authority, and indeed other, landlords as regards high-rise or multistorey dwellings towards the tenants of these dwellings. This is a comparatively recent problem though there have been some harbingers of it in previous cases.
No. 50, Haigh Heights, Liverpool, is one of several recently erected tower blocks in the District of Everton. It has some 70 dwelling units in it. It was erected 10 years ago following a slum clearance programme at considerable cost, and was then, no doubt, thought to mark an advance in housing standards. Unfortunately, it has since turned out that effective slum clearance depends upon more than expenditure upon steel and concrete. There are human factors involved too, and it is these which seem to have failed. The defendants moved into one of the units in this building in July 1966: this was a maisonette of two floors, corresponding to the ninth and tenth floors of the block. Access to it was provided by a staircase and by two electrically operated lifts. Another facility provided was an internal chute into which tenants in the block could discharge rubbish or garbage for collection at the ground level.
There has been a consistent history of trouble in this block, due in part to vandalism, in part to non-cooperation by tenants, in part, it is said, to neglect by the Corporation. The defendants, with other tenants, stopped payment of rent so that in May 1973 the Corporation had to start proceedings for possession. The defendants put in a counterclaim for damages and for an injunction, alleging that the Corporation was in breach of its implied covenant for quiet enjoyment, that it was in breach of the statutory covenant implied by section 32 of the Housing Act 1961, and that it was in breach of an obligation implied by law to keep the "common parts" in repair. The case came for trial in the Liverpool County Court before His Honour Judge T. A. Cunliffe. A good deal of evidence was submitted, both orally and in the form of reports. The judge himself visited the block and inspected the premises: he said in his judgment that he was appalled by the general condition of the property. On 10th April, 1974, he gave a detailed and careful judgment granting possession to the Corporation on the claim, and on the counterclaim judgment for the defendants for £10 nominal damages. He found that the defects alleged by the defendants were established. These can be summarised as consisting of (i) a number of defects in the maisonette itself—these were significant but not perhaps of major importance; (ii) defects in the common parts, which may be summarised as continual failure of the lifts, sometimes of both at one time, lack of lighting on the stairs, dangerous condition of the staircase with unguarded holes giving access to the rubbish chutes, and frequent blockage of the chutes. He found that these had existed or been repeated with considerable frequency throughout the tenancy, had gone from bad to worse, and that while some defects in the common parts could be attributed to vandalism, not all could be so attributed. No doubt also some defects, particularly the blocking of the rubbish chutes, were due to irresponsible action by the tenants themselves. The learned judge decided that there was to be implied a covenant by the Corporation to keep the common parts in repair and properly lighted, and that the Corporation was in breach of this implied covenant, of the covenant for quiet enjoyment and of the repairing covenant implied by the Housing Act 1961, section 32.
The Corporation appealed to the Court of Appeal, which allowed the Corporation's appeal against the judgment on the counterclaim. While agreeing in the result, the members of that Court differed as to their grounds. Roskill and Ormrod L.JJ. held that no covenant to repair the common parts ought to be implied. Lord Denning M.R. held that there should be implied a covenant to take reasonable care, not only to keep the lifts and stairs reasonably safe, but also to keep them reasonably fit for use by the tenant and his family and visitors. He held, however, that there was no evidence of any breach of this duty. The court was agreed in holding that there was no breach of the covenant implied under section 32 of the Housing Act 1961; the tenants did not seek to uphold the judge's decision on the covenant for quiet enjoyment, and have not done so in the House.
I consider first the tenants' claim in so far as it is based on contract. The first step must be to ascertain what the contract is. This may look elementary, even naive, but it seems to me to be the essential step and to involve, from the start, an approach different, if simpler, from that taken by the members of the Court of Appeal. We look first at documentary material. As is common with council lettings there is no formal demise, or lease or tenancy agreement. There is a document headed "Liverpool Corporation, Liverpool City Housing Dept." and described as "Conditions of Tenancy". This contains a list of obligations upon the tenant—he shall do this, he shall not do that, or he shall not do that without the Corporation's consent. This is an amalgam of obligations added to from time to time, no doubt, to meet complaints, emerging situations, or problems as they appear to the council's officers. In particular there have been added special provisions relating to multi-storey flats which are supposed to make the conditions suitable to such dwellings. We may note under "Further special notes" some obligations not to obstruct staircases and passages, and not to permit childrden under 10 to operate any lifts. I mention these as a recognition of the existence and relevance of these facilities. At the end there is a form for signature by the tenant stating that he accepts the tenancy. On the landlords' side there is nothing, no signature, no demise, no covenant: the contract takes effect as soon as the tenants sign the form and are let into possession.
We have then a contract which is partly, but not wholly, stated in writing. In order to complete it, in particular to give it a bilateral character, it is necessary to take account of the actions of the parties and the circumstances. As actions of the parties, we must note the granting of possession by the landlords and reservation by them of the "common parts"—stairs, lifts, chutes, etc. As circumstances we must include the nature of the premises, viz., a maisonette for family use on the ninth floor of a high block, one which is occupied by a large number of other tenants, all using the common parts and dependent upon them, none of them having any expressed obligation to maintain or repair them.
To say that the construction of a complete contract out of these elements involves a process of "implication" may be correct: it would be so if implication means the supplying of what it not expressed. But there are varieties of implications which the...
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