London Hospital Governors v Jacobs
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE JENKINS,LORD JUSTICE HODSON |
| Judgment Date | 10 May 1956 |
| Neutral Citation | [1956] EWCA Civ J0510-4 |
| Court | Court of Appeal |
| Date | 10 May 1956 |
[1956] EWCA Civ J0510-4
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls (Lord Evershed)
Lord Justice Jenkins and
Lord Justice Hodson
Mr. RALPH MILLNER (instructed by Messrs Pearce & Sons) appeared on behalf of the Appellant.
Mr. C. G. ARMSTRONG COWAN (instructed by Messrs Hanbury, Whitting E & Ingle) appeared on behalf of the Respondents.
In these proceeding to the Plaintiffs, the Board of Governors of the London Hospital (to whom I will hereafter refer as "the hospital"), sued the tenant Defendant. Mrs. Rose Jacobs for a relatively small sum for arrears of rent of premises belonging to the hospital at 33, Turner Street, Whitechapel, of which Mrs. Jacobs the Defendant was at all material times statutory tenant The sum involved, for which Judgment was given for the hospital is £13. 11.1. (as I have said a small sum), but the questions which have arisen are of some significance I were informed that this was one of a number of somewhat similar proceedings brought by the hospital against other tenants and it is probable that the decision in this case will substantially affect the decisions in other cases.
The arrears of rent sued for represent in fact certain increases in the pre-existing rent of £2.14.6. per week to which the hospital claim to be entitled as a repairs increase under the terms of the Housing Repairs and Rents Act, 1954. The provisions relative to rent increases under that Act are contained substantially in Part II of the Act, beginning with Section 23 and they are undoubtedly (as I think the subject matter almost inevitably required them to be) somewhat complex. I am not sure that I share the criticism which the County Court Judge has made of the combined efforts of the Parliamentary draftsman and the Legislature, because I think the purpose and intendment of the sections is not seriously doubtful.
Section 23 opens by stating what are the two conditions precedents to any repairs Increase which may be validly made under the Act, in full. I shall not read the sub-section it is sufficient to say that the first condition (which is itself a double-barreled condition, if I may use the phrase and is called thereafter "the conditions justifyingan increase of rent") is found in sub-section (1)(a) and is, in brief, that the dwelling-house in question is in good repair and that it is reasonably suitable for occupation. That first branch of the sub-section constitutes, as I have said, the first (though it is two-fold) of the conditions precedent to an increase. The second is found in paragraph (b) of the same sub-section and is to the effect that in accordance with the provisions found in the Second Schedule, satisfactory evidence has been produced that repair work to the extent intimated has been done. The second subsection of Section 23 provides for the quantifying of the repairs Increase which can be made, and there is a proviso to that sub-section to this effect, that if in any case the landlord is only partly responsible instead of wholly responsible for the repair of the dwelling-house in question then the quantum of the increase has to be (and I am quoting) "reduced proportionately". Those two last words obviously introduce an element of degree into the question of quantum where the repair liability is shared between landlord and tenant; and although guidance is later given for the fixing of the proportions, it is plain that there must in many cases be room for some doubt what the true proportion is. To that matter I shall have to return presently
Having read the two conditions precedent. I can now state that in this Court two points (or two substantial points, for there have been others intimated) have been debated, one arising under each of the two conditions precedent; and I shall deal with them so far as I can separately, The first one which affects paragraph (a) of sub-section (1), the "conditions justifying an Increase of rent", arises out of a preliminary objection taken by the hospital at the trial. The objection was that it was not open to the tenant, Mrs. Jacobs in the circumstances to challenge the declaration by the landlord in his notice for increasing the rent that those conditionshad been complied with
In order to make clear the nature of that point, I must embark a little further upon the water of these sections. In addition to the conditions laid down in Section 23, it is also provided by Section 25 that a landlord cannot recover any sum by way of repairs increase unless he has served upon the tenant a notice of increase as therein defined which includes declarations to the effect that both the conditions precedent which I have stated and which are found in paragraphs (a) and (b) of Section 23(1) have been satisfied and there is statutory provision made (into which I will not go in detail) as to the form and requirements of the notice of increase.
In the present cases the hospital possessed itself of the appropriate form (or what, upon this part of the case, was the appropriate form) and in due compliance with it, the hospital, by their Financial Secretary, who was qualified to execute it, stated that at the date of the service of the notice the "conditions justifying the increase of rent" had been fulfilled; that is to say, they declared that the conditions to be found in paragraph (a) of Section 23, sub-section (1), had been satisfied. When the action started, the hospital, by their Particulars of Claim, alleged that this notice had been given, and they accordingly alleged that they were entitled to the increase. But the Defendant, by way of Defense specifically challenged the contents of the declaration to which I have referred, She said in paragraph 2: "The conditions Justifying an increase of rent referred to in Section 23(l)(a) of the Act have not been fulfilled"; and, on request, she gave particulars of the extent to which, as she alleged, those conditions had not been satisfied, I need not pause to read them or to go into them, because it is at this point that the preliminary objection arises. It is said that the effect of Section 26 of the Act, in the circumstances of this case, is to prevent altogether the Defendant Mrs. Jacobsfrom challenging the truth of this declaration, of course since fulfillment of these conditions is a condition precedent to any increase of rent, it is obvious that this preliminary objection is, on the face of it a somewhat bold one; since it involves saying that the Courts are not entitled to enquire at all into the question of fact raised by the tenant! Have those essential requirements been satisfied?
I must now however, look at Section 26 The first sub-section is in these rates "On the service of a notice of increase under (Section 25) or at any subsequent time, the tenant" - and I will try to shorten my reading - "may apply to the local authority for a certificate that either or both of the conditions justifying an increase of rent are not fulfilled; and the local authority, if satisfied that the dwelling-house fails to fulfill either or both… shall certify accordingly". Then sub-section (2) provides that where the local authority have granted a certificate of the kind I have mentioned and the tenant has served a copy of it on the landlord, then during any period for which the certificate in force the landlord cannot recover the repairs increase; but sub-section (2) goes on to provide that if the landlord, in proceedings for the recovery of the sum - that is, the repairs, increase-satisfies the Court that when the certificate was given the conditions in truth had been fulfilled, then the Court may order that the certificate shall cease to be effective, Sub-sections (3) and (4), taken together. I need only mention to indicate that a local authority may, on the application of a landlord, revoke a certificate, particularly where work has since been done by a landlord; and, on the revocation, of course? The stop on the recovery of the repairs increase ceases. Then sub-section (5) provides further in relief of the landlord that, in proceedings to recover the Increase claimed, a landlord may challenge a refusal of the local authority to revoke the certificate
I think that citation of the section will suffice; and it will he seen at one that a certificate, if granted or (as the case may be) if not revoked is open in proceedings in Court to challenge by the landlord. But there is no express provision in the section for the converse case it nowhere provides that if a local authority refuses to grant a certificate, or revokes one that it has granted, then a tenant in proceedings in the Courts may challenge thus refusal of the local authority or challenge the local authority's revocation, it is the basis of Mr. Cowan's argument that we should infer from the absence of that countervailing provision that a tenant cannot challenge at all, in any proceedings, the refusal to grant a certificate by a local authority or it's revocation when granted. Indeed, the argument I think goes so far as this: it is said that thin only remedy available to a tenant when a landlord serves a notice of increase (so far as concerns the declaration that paragraph (a) of Section 23, sub-section (1) is satisfied) is to go and get, if he can't a certificate from the local authority; and that the powers of the Court are wholly ousted, so far as any challenge is concerned, on the part of the tenant, to a declaration of fulfillment by the landlord of what is (as I have already said) an absolute condition precedent to any right of the landlord to recover any increase of rent whatever under this part of the Act. It was the view of the County Court Judge that such was the effect of the section. His Honour went so far as to say that, in his view, the contrary...
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