Manchester City Council v Joleen Finn
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,Lady Justice Arden |
| Judgment Date | 19 December 2002 |
| Neutral Citation | [2002] EWCA Civ 1998 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B2/2002/1143 |
| Date | 19 December 2002 |
[2002] EWCA Civ 1998
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT
(His Honour Judge Holman)
Royal Courts of Justice
Strand
London WC2
Lord Justice Ward and
Lady Justice Arden
B2/2002/1143
Mr Jan Luba QC and Mr James Stark (instructed by Messrs Platt Halpern, Manchester) appeared on behalf of the Appellant Defendant.
Mr Andrew Arden QC and Mr Jonathan Manning (instructed by the Chief Executive's Office, Manchester City Council) appeared on behalf of the Respondent Claimant.
I will ask Lady Justice Arden to give the first judgment.
This is an appeal from the order of His Honour Judge Holman, sitting in the Manchester County Court, dated 8th May 2002, allowing an appeal from the order of District Judge Needham, which in turn dismissed the appellant's application to revoke postponement of an order for possession made under section 85(2) of the Housing Act 1985.
The relevant statutory provisions in the Housing Act 1985 are as follows:
"79Secure tenancies
(1)A tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied.
80The landlord condition
(1)The landlord condition is that the interest of the landlord belongs to one of the following authorities or bodies -
a local authority,
a new town corporation,
a housing action trust,
an urban development corporation,
…
the Relevant Authority,
a housing trust which is a charity, or
a housing association or housing co-operative to which this section applies.
81The tenant condition
The tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home.
82Security of tenure
(1)A secure tenancy which is either -
(a)a weekly or other periodic tenancy, or
(b)a tenancy for a term certain but subject to termination by the landlord,
cannot be brought to an end by the landlord except by obtaining an order of the court for the possession of the dwelling-house or an order under subsection (3).
(2)Where the landlord obtains an order for the possession of the dwelling-house, the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order.
83Proceedings for possession or termination: notice requirements
(1)The court shall not entertain proceedings for the possession of a dwelling-house let under a secure tenancy or proceedings for the termination of a secure tenancy unless -
(a)the landlord has served a notice on the tenant complying with the provisions of this section, or
(b)the court considers it just and equitable to dispense with the requirement of such a notice.
(2)A notice under this section shall -
(a)be in a form prescribed by regulations made by the Secretary of State,
(b)specify the ground on which the court will be asked to make an order for the possession of the dwelling-house or for the termination of the tenancy, and
(c)give particulars of that ground.
84Grounds and orders for possession
(1)The court shall not make an order for the possession of a dwelling-house let under a secure tenancy except on one or more of the grounds set out in Schedule 2.
(2)The court shall not make an order for possession -
(a)on the grounds set out in Part 1 of that Schedule (grounds 1 to 8), unless it considers it reasonable to make the order,
(b)on the grounds set out in Part II of that Schedule (grounds 9 to 11), unless it is satisfied that suitable accommodation will be available for the tenant when the order takes effect,
(c)on the grounds set out in Part III of that Schedule (grounds 12 to 16), unless it both considers it reasonable to make the order and is satisfied that suitable accommodation will be available for the tenant when the order takes effect;
and Part IV of that Schedule has effect for determining whether suitable accommodation will be available for a tenant.
(3)Where a notice under section 83 has been served on the tenant, the court shall not make such an order on any of those grounds above unless the ground is specified in the notice; but the grounds so specified may be altered or added to with the leave of the court.
85Extended discretion of court in certain proceedings for possession
(1)Where proceedings are brought for possession of a dwelling-house let under a secure tenancy on any of the grounds set out in Part I or Part III of Schedule 2 (grounds 1 to 8 and 12 to 16: cases in which the court must be satisfied that it is reasonable to make a possession order), the court may adjourn the proceedings for such period or periods as it thinks fit.
(2)On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may -
(a)stay or suspend the execution of the order, or
(b)postpone the date of possession,
for such period or periods as the court thinks fit.
(3)On such an adjournment, stay, suspension or postponement the court -
(a)shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy (mesne profits), unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and
(b)may impose such other conditions as it thinks fit."
Mr Jan Luba QC appears for the appellant. He describes the statutory provisions in the following terms. There is a contractual tenancy which is surrounded by a statutory cloak provided by Part IV of the Housing Act 1985. The only way of setting aside the cloak is by an order for possession, which is, as it were, a sword in the landlord's possession. The provisions for notice in section 83 are to provide a shot across the bows for a tenant.
The facts in this case are not in dispute and may be taken from the judge's judgment as follows:
"2.On 23 February 2000 the Claimant obtained a possession order against the Defendant over 12 Finishing Walk, Miles Platting, Manchester. There were arrears of rent of over £1,860. The terms of the order required the Defendant to give possession on March 22 unless she paid the current rent plus £2.60 per week off the arrears. The Defendant has complied with this order.
3.In November 2000 the police executed a search warrant at the house and recovered stolen property to a value of some £28,000. In due course the Defendant was made the subject of a 3 year Probation Order for handling stolen goods, and her partner, Paul Upton, was sentenced to 5 years imprisonment.
4.The terms of the tenancy agreement require the tenant and anyone living at the house not to use it for any illegal activity. The Claimant interviewed the Defendant about these events in June 2001 and she was sent a letter afterwards, which among other matters confirmed that she was in breach of her obligations as a tenant.
5.In August 2001 the police found 5 stolen microwaves at the house. On 30 October 2001 the Defendant pleaded guilty at the City Magistrates Court to a charge of handling and was sentenced to 3 months imprisonment suspended for 12 months.
6.In December 2001 the Claimant applied for the possession order to be varied on the grounds that the Defendant had broken the terms of her tenancy agreement and for possession to be given forthwith. The Claimant relied on Grounds 1 and 2 of Schedule 2 to the Housing Act 1985. The application was listed for hearing on 17 January 2002 but was then adjourned to 5 March 2002, when it came before District Judge Needham. He dismissed it and stated his reasons succinctly. I quote: 'The court has no jurisdiction to entertain this application. It is functus officio having made the order for possession. No facts have arisen subsequent to that order for possession, which could give the court jurisdiction.' He concluded that Sheffield City Council v Hopkins was not authority for the proposition that he could amend the order for possession."
The application with which the judge had to deal was an appeal against the decision of the district judge, seeking an order in slightly different terms from that which had been sought from the district judge. The order sought was that the possession order of 23rd February 2000 be varied so as to include a condition that the defendant (the appellant in this appeal) or anyone living with her or visiting her should not use the property at 12 Finishing Walk, Manchester, for the purpose of any illegal activity, including handling stolen goods. As this was different from the issue before the district judge, the judge formulated the issue to be resolved thus:
"… is it open to the court, where a tenant is complying with a suspended order for possession, to entertain an application either to revoke that order and substitute an immediate order for possession or to amend the terms of the suspension?" (see judgment, para 9)
I now turn to the reasons which the judge gave. The first point with which the judge dealt was an argument of the local authority (the respondent to this appeal) that the court had jurisdiction to revoke or vary a possession order by virtue of Civil Procedure Rule 3.1(7). I need not deal with that submission as we have not called on Mr Andrew Arden QC, for the authority, to move his respondent's notice challenging the judge's ruling on this point.
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