Mr. B & Ms. B (A Child) (Plaintiffs) Appellant) v Mr. L Respondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE WAITE,LORD JUSTICE SCHIEMANN |
| Judgment Date | 28 November 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J1128-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No. UB511951 |
| Date | 28 November 1995 |
[1995] EWCA Civ J1128-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UXBRIDGE COUNTY COURT
(Mr. Assistant Recorder Smithson)
Before: Lord Justice Russell Lord Justice Waite Lord Justice Schiemann
Case No. UB511951
THE APPELLANT appeared in person
MR. P. POPAT (instructed by Messrs. Glenisters, Solicitors, Eastcote) appeared on behalf of Respondent.
The Tudor Lodge Hotel in Field End Road, Eastcote, Middlesex, is a perfectly ordinary hotel. I do not say that in any perjorative sense. By that expression I simply mean that it is a hotel with no special features to distinguish it from thousands of other hotels up and down the country. It has some 23 bedrooms, a restaurant, and in a separate annex it has additional rooms available for occupation by the hotel guests. Within the main block, bedrooms are available on a bed and breakfast basis.
£47 per night is the charge at the weekends (Friday to Sunday), and £67 per night from Monday to Thursday. That price structure is precisely what one finds in hotels up and down the country.
On 20th September 1995 Mr. John Claud Brillouet, the appellant in this case, arrived at the hotel accompanied by his young daughter, now 12 years of age. He asked for accommodation on a bed and breakfast basis, and the hotel office manager, Miss Williams, either personally or through the receptionist, gave him those facilities on the night of 20th September and for an undefined period thereafter. The appellant agreed the rates which were proposed, to which I have referred.
A few days later Mr. Brillouet indicated to the hotel that he and his daughter would wish to stay for longer than ——-
I never said that, my Lord.
Mr. Brillouet, let me make this plain; if you interfere with the giving of this judgment by me once more, I
shall have you evicted from the courtroom and I shall continue the judgment in your absence. Do I make myself plain?
Yes, my Lord.
LORD JUSTICE JUSTICE RUSSELL: They were offered accommodation in the annex. Instead of the twin-bedded room, there were separate rooms. The terms for accommodation in the annex were £100 per day inclusive of VAT and of breakfast. Mr. Brillouet accepted that offer, and he has been in the hotel ever since.
Unhappily it soon became apparent that the hotel was not going to receive the £100 per day which had been agreed with Mr. Brillouet, and arrears accrued. The local authority were involved to an extent, because Mr. Brillouet was relying upon finance from the local authority to assist him in paying for his accommodation. The local authority, it seems, was not prepared to pay £100 per day. Accordingly, in the early part of November of this year, the hotel proprietor, Mr. J.K. Landless, who is the respondent to this appeal, indicated to Mr. Brillouet that he and his daughter would have to leave. That prompted on Mr. Brillouet's part an application to the Uxbridge County Court for an injunction
restraining Mr. Landless from taking steps to evict Mr. Brillouet and his daughter from the hotel accommodation. A short interim injunction was obtained with a return date.
The matter came before Mr. Assistant Recorder Smithson on 8th
November 1995. Before the assistant recorder Mr. Brillouet submitted that he was in reality a protected tenant of the accommodation which he occupied in the hotel, and consequently entitled to the protection afforded both by the Housing Act 1988
and the Protection from Eviction Act 1977. In a short judgment the learned assistant recorder rejected the submissions made by the applicant for the injunction. He said:
"The Protection from Eviction Act depends on premises having been let as a dwelling."
He went on to hold that Mr. Brillouet had never enjoyed the protection afforded by either statute because, in the judgment of the recorder, he was never at any stage the tenant of a dwelling. Strictly speaking and taken at face value, that assessment of the situation was not the whole answer to the problem that the case presented. First, the Housing Act 1988 is concerned with and affords protection to assured tenants. It is necessary in order to bring oneself within the terms of the 1988 Act and the protection it affords to demonstrate that a tenancy is in existence.
Conversely, however, the Protection from Eviction Act 1977 does not necessarily involve it being proved, before protection can be afforded, that a tenancy exists. Section 3 of the 1977 Act reads as follows:
"Where any premises have been let as a dwelling under a tenancy which is [neither a statutorily protected tenancy nor an excluded tenancy] and -
(a) the tenancy (in this section referred to as the former tenancy) has come to an end, but
(b) the occupier continues to reside in the premises or part of them,
it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises."
By an earlier section, section 1 of the statute, to do otherwise is to commit a criminal offence.
The 1977 Act was amended by a subsequent provision appended to section 3, namely sub-paragraph (2B). That reads:
"Subsections (1) and (2) above apply in relation to any premises occupied as a dwelling under a licence, other than an excluded licence, as they apply in relation to premises let as a dwelling under a tenancy, and in those subsections the expressions 'let' and 'tenancy' shall be construed accordingly."
Thus it is that Mr. Brillouet had to demonstrate to the assistant recorder either that he was a protected tenant under the 1988 Act or, alternatively, a protected licensee under the 1977 Act before he could hope to obtain the injunctive relief that he sought.
I ought at this stage to say a word or two more about the facts. In the annex which Mr. Brillouet occupied there are various hotel facilities. They involve, for example, Sky television, a telephone, chambermaid involvement in the sense that chambermaids visit the suite regularly to change linen and to clean. It is an essential prerequisite of any tenancy that the tenant should have, so it is said in some of the authorities, exclusive possession. In my judgment the facts of this case —particularly when one bears in mind that Mr. Brillouet upon his own assertion avails himself of at least some of the facilities (he goes to the restaurant occasionally for his breakfast) —come nowhere near demonstrating that he has or has had within this room exclusive occupation. At best in my judgment he could conceivably be a licensee. One then has to examine once more the terms of the statute to ascertain whether he is a licensee entitled to protection under the 1977 Act.
As the section to which I have alluded makes plain, only licensees who occupy as a dwelling premises which they do occupy are entitled to protection. If, as in my judgment the facts here clearly demonstrate, the occupant is no more and no less than a hotel guest properly so-called, then the accommodation is not let to the licensee as a dwelling.
Our attention has been directed to a number of authorities. Let it be said at once that none is precisely in point, for inevitably in cases of this kind the facts vary dependent upon the individual case. I go first to an authority which I find of assistance, which Mr. Brillouet suggests, in my view inaccurately, has been disapproved or overruled, namely Marchant v. Charters [1977] 3 All E.R.918. In that case the then Master of the Rolls, Lord Denning, had this to say. He spoke at page 921 of the evidence given in the court below and, referring to Mrs. Marchant's testimony, he said:
"I go to the house practically every day. I occasionally sleep there. [It] is a fine old house: a self-catering residential hotel for single men. Been running like this for 25 years. Each resident has a room of his own. They are completely furnished, wall to wall carpeting, curtains, bed, blankets, sheets, pillow, pillow case, towels, even tea towels, one arm chair and two wooden chairs, wardrobe, occasional tables, cooker, sink, with gas water heater, gas fire for heating, points for power. Each room has own meter for gas and electricity. Every resident gets...
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