Newport City Council v Charles
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Longmore,Lord Justice Richards |
| Judgment Date | 17 July 2008 |
| Neutral Citation | [2008] EWCA Civ 1541 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2008/0688 |
| Date | 17 July 2008 |
[2008] EWCA Civ 1541
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF COUNTY COURT
(HIS HONOUR JUDGE JARMAN QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Longmore
And
Lord Justice Richards
Case No: B5/2008/0688
Mr M Barnes QC and Mr J Beckley (instructed by Hodson, Parson, James & Vaux) appeared on behalf of the Appellant
Mr A Arden QC and Mr I Wightwick (instructed by Newport City Council) appeared on behalf of the Respondent.
Lord Justice Laws:
This is a second appeal, with permission granted by Pill LJ on 23 May 2008, against orders made by HHJ Jarman QC in the Cardiff County Court on 22 February 2008 in possession proceedings brought by the respondent housing authority against the appellant.
The appellant's mother was the secure tenant of premises at 1B Marlborough Road, Newport. She died on 6 January 2003, on which date the appellant succeeded to the tenancy by virtue of section 89 of the Housing Act 1980. In June 2007 the respondent commenced proceedings to recover possession of the property. Having regard to the terms of section 82 to 84 of the 1980 Act and on the facts, they were only entitled to obtain such an order if the case fell within ground 16 of Schedule 2 to the Act which specifies these circumstances:
“The accommodation afforded by the dwelling house is more extensive than is reasonably required by the tenant and —
(a) the tenancy vested in the tenant by virtue of section 89 (succession to periodic tenancy), the tenant being qualified to succeed by virtue of section 87(b) (members of family other than spouse), and
(b) notice of the proceedings for possession were served under section 83 [(or, where no such notice was served, the proceedings for possession were begun)] more than six months but less than twelve months after the date of the previous tenant's death.”
By Section 83 the court is not to entertain proceedings for possession of a dwelling house let under a secure tenancy
“(a). unless the landlord has served on the tenant a notice [of particulars of the ground relied on] or
(b). the court considers it just and equitable to dispense with the requirement of such a notice.”
In this case paragraph (a) of ground 16 was satisfied but no section 83 notice was given, nor were the possession proceedings commenced within 12 months of the death. There was accordingly a plain question, whether the court possessed any jurisdiction to make an order for possession. Section 84 provides in terms that:
“The court shall not make an order for possession of a dwelling-house let under a secure tenancy except on one or more of the grounds set out in Schedule 2.”
And in this case ground 16 was the only ground having any potential application. Yet on 4 October 2007 District Judge Fraser made the possession order sought and on 22 February 2008 HHJ Jarman dismissed the appellant's appeal in substance, though he set aside the possession order and remitted the claim to a district judge for further determination. That was only because there remained a live issue as to whether suitable alternative accommodation would be available for the appellant, and that was something that had to be shown if a possession order was to be made. The critical point is that both district judge and the circuit judge accepted there was jurisdiction substantively to hear the claim and to make an order for possession if it were right on the facts to do so; and that was so albeit that the 12-month time limit stipulated by ground 16(b) was not met.
The housing authority's case was and is that in the events which happened a proprietary estoppel operates to prevent the appellant from denying that the time for service of a Section 83 notice or the commencement of proceedings was not within 12 months after his mother's death but within 12 months from the date the authority learned of the death. Whether such an estoppel can operate in the context of possession proceedings for the recovery of premises let under a secure tenancy is a question of some importance, well justifying the grant of permission to bring a second appeal.
The core facts on which the housing authority relies as supporting the estoppel amount to a deliberate and fraudulent concealment by the appellant of the fact, and therefore of course the date, of his mother's death. The factual position clearly emerges from the oral evidence of the appellant given before the district judge. When his mother was on her deathbed the appellant telephoned what he called “a couple of housing officers” (not the respondent's housing department) anonymously. He did so in order to ask about what his position would be on his mother's death. He was told it was likely that the respondent would not allow him to remain in the house. Accordingly, when she died he did not register her death or inform any public authority. He was in fact obliged on pain of criminal sanctions to register the death with the Registrar of Births and Deaths within five days of the event: see Births and Deaths Act Registration Act 1953, section 1Had that been done the Registrar in turn would have been obliged to notify the billing authority for council tax purposes: see the Council Tax (Administration and Enforcement Regulations) 1992, Regulation 5. And the billing authority is in fact the housing authority: that is, the respondent. Far from registering the death the appellant remained living at the property, paying rent in his mother's name as if she were still alive, “to save any problem”. He said he did not inform “the council tax” that he was living at the property nor seek to have it transferred into his own name because he thought that would lead to the respondent housing department being involved.
The district judge recorded a particular aspect of the appellant's fraud, though taking place at a later date —this was in 2006 and it seems to have led to the respondent's discovery of his mother's death. I should say before citing the finding that the lady called Mrs Protheroe was a housing manager employed by the respondent. This is what the district judge said, paragraphs 6 to 7:
“Mrs Protheroe told the Defendant that if his mother was the next of kin they could only deal with her regarding his brother's flat. The Defendant informed the Council that his mother was currently unwell and that she had asked him to act on her behalf. Mrs Protheroe told him that if that was the case the Council would require a letter, that was on 3 rd April.
7. A week later, on 10 th April, the Defendant brought in the letter, which he stated was from his mother. That is an exhibit to this matter and we all know, at this hearing, that that was not correct and was a fraudulent letter. Following the receipt of the letter of 10 th April, enquiries were made on 11 th April and it was apparent that Mrs Charles had been buried.”
That act, deceitful though it certainly was, of course took place in any event well after the expiry of the statutory 12-month time limit”.
On the appellant's appeal from the district judge to HHJ Jarman the judge held (paragraph 12) that the facts disclosed:
“…a representation by conduct on the part of the appellant that the tenancy continued after 6 January 2003 to be in the name of his mother on the basis that his mother was still alive.”
There is no doubt but that the respondent acted to its detriment in reliance on that conduct. They withheld service of a Section 83 notice or the commencement of proceedings until after what was on the face of it the last date for those acts to be done if possession proceedings were to be properly constituted under the Act of 1980. However, it was submitted to the judge for the appellant that no estoppel could avail the respondent because in essence there was no escape from the strict requirements of the statute. An estoppel could not extend the 12-month time limit prescribed in ground 16. But the judge rejected that argument. He held, paragraph 19, that by virtue of his own conduct the appellant could not be allowed to deny that the 12-month time limit under ground 16 ran from March 2006, when the respondent discovered the truth, rather than January 2003, the actual date of the mother's death. The appellant had owed a duty, so held the judge (paragraph 11), to notify the housing authority of the death. Accordingly HHJ Jarman rejected the substance of the appellant's appeal from the district judge, although as I have said he remitted the case for consideration of the issue of suitable alternative accommodation.
The appellant seeks to raise six grounds of appeal. The last two have been lately formulated by Mr Barnes QC. He has been instructed in place of Mr Luba QC, who was unavailable for the hearing. Mr Barnes has appeared before us this morning; we are greatly obliged by his submissions. He sought leave to add the last two grounds and we indicated that it would be granted. Mr Barnes formulated his argument under three heads, but it is convenient to set out the six grounds as they are articulated in the skeleton argument: 1) The county court judge was wrong to hold that there is an obligation on a successor to a secure tenancy to disclose to the landlord the fact of the death of the former tenant. 2) The county court judge was wrong to hold that in the absence of service of a Section 83 notice or at the commencement of proceedings within the stipulated time limit the court had jurisdiction to make a possession order. 3) The county court judge was wrong to hold that by virtue of estoppel or...
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Yavuz Yildiz v London Borough of Hackney
...months after the relevant date”. 10 Mr Fitzpatrick sought support for his submissions in the decision of the Court of Appeal in Newport City Council v Charles [2008] EWCA Civ 1541, [2009] 1 WLR 1884. It was the Newport case that led to ground 16(b) being amended, and ground 15A(b) framed,......