North British Housing Association Ltd v Matthews and other appeals; London and Quadrant Housing Trust v Morgan
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson |
| Judgment Date | 21 December 2004 |
| Neutral Citation | [2004] EWCA Civ 1736 |
| Docket Number | Case No: B2/2004/1595 B2/2004/1597 B2/2004/1598 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 2004 |
[2004] EWCA Civ 1736
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL from MANCHESTER COUNTY COURT
District Judge Saffman
and from EDMONTON COUNTY COURT
District Judge Silverman
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Brooke
Vice President of The Court of Appeal (Civil Division)
Lord Justice Mance and
Lord Justice Dyson
Case No: B2/2004/1595
B2/2004/1596
B2/2004/1597
B2/2004/1598
Mr Jan Luba QC and Mr James Stark (instructed by Messrs Platt Halpern) for the 1 st/2 nd/3 rd Appellants
Mr Paul Chaisty QC and Geraint Wheatley (instructed by Messrs Cobbetts) for the 1 st/2 nd/3 rd Respondents
Mr Michael Supperstone QC and Zia Nabi (instructed by Messrs Tyrer Roxburgh & Co) for the 4th Appellant
Mr George Laurence QC and Miss Zia Bhaloo (instructed by Messrs Trowers & Hamlins) for the 4 th Respondent
This is the judgment of the court.
Introduction
All four appellants were tenants of housing associations under assured tenancies who fell into arrears of rent. Possession proceedings were started. There was no dispute that both at the date of the service of the notice of proceedings under section 8 of the Housing Act 1988 ("the Housing Act") and at the date of the hearing before the district judge, the arrears exceeded the 8 weeks' limit specified in ground 8 of Part 1 of Schedule 2. On the face of it, therefore, in each case the court was obliged by section 7 to make an order for possession. In each case, an application was made to the judge for an adjournment of the possession proceedings. The grounds on which the applications were based differed in point of detail. But common to them all was the submission that the appellant should be given time to obtain the money to meet the arrears, or at least to bring them below the ground 8 threshold, and thereby enable him or her to defeat the claim under that ground. All of the appellants were, or had been, in receipt of housing benefit. They said that their inability to pay the rent was caused by maladministration or other unjustified failures by the housing benefit authorities to pay housing benefit.
In all four cases, the district judge refused to grant an adjournment on the grounds that he had no jurisdiction to do so, or that, if jurisdiction existed, it would have been wrong to exercise it: an adjournment in such circumstances would have undermined the clear intention of Parliament implicit in section 7(3) and ground 8. The principal issue that arises on these appeals is whether, and if so in what circumstances, the court can grant an adjournment on the grounds that the tenant may be able to obtain funds to pay off arrears of rent by the return date and thereby defeat the claim for possession. Delays in receipt of housing benefit are common. The problems illustrated by these four cases are encountered on a widespread scale in county courts throughout the land. District judges have resolved the adjournment issue in different ways. There is considerable uncertainty and it is important that this be resolved.
The statutory framework
So far as material, the Housing Act provides as follows:
"7(1) The court shall not make an order for possession of a dwelling-house let on an assured tenancy except on one or more of the grounds set out in Schedule 2 to this Act …
(2) The following provisions of this section have effect, subject to section 8 below, in relation to proceedings for the recovery of possession of a dwelling-house let on an assured tenancy.
(3) If the court is satisfied that any of the grounds in Part 1 of Schedule 2 to this Act is established then, subject to sub-sections (5A) and (6) below, the court shall make an order for possession.
..
8(1) The court shall not entertain proceedings for possession of a dwelling-house let on an assured tenancy unless –
(a) the landlord or, in the case of joint landlords, at least one of them has served on the tenant a notice in accordance with this section …
9(1) Subject to sub-section (6) below, the court may adjourn for such period or periods as it thinks fit proceedings for possession of a dwelling-house let on an assured tenancy.
(2) On the making of an order for possession of a dwelling-house let on an assured tenancy or at any time before the execution of such an order, the court, subject to sub-section (6) below, may
(a) stay or suspend execution of the order, or
(b) postpone the date of possession
for such period or periods as the court thinks just.
…
(6) This section does not apply if the court is satisfied that the landlord is entitled to possession of the dwelling-house –
(a) on any of the grounds in Part 1 of Schedule 2 to this Act; or
…"
"SCHEDULE 2
GROUNDS FOR POSSESSION OF DWELLING-HOUSES LET ON ASSURED TENANCIES
Part 1
Grounds on which Court must order possession
…
Ground 8
Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing –
(a) if rent is payable weekly or fortnightly, at least 8 weeks' rent is unpaid;
(b) if rent is payable monthly, at least 2 months' rent is unpaid;
…"
The general power to adjourn
The county court has the widest general powers to grant an adjournment. These are derived from the County Courts Act 1984, the rules and practice directions made under the Civil Procedure Act 1997 and the inherent jurisdiction of the court.
Section 3 of the County Courts Act 1984 provides: "(2) A judge may from time to time adjourn any court held by him, and a district judge may from time to time adjourn (a) any court held by him…".
CPR 3.1 (1) provides that "the list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have." CPR 3.1(2) provides that "except where these Rules provide otherwise", the court may exercise any of the powers listed in paras (a) to (m) . Among these is the power to "adjourn or bring forward a hearing" ( CPR 3.1(2) (b)) . There is no qualification as to the stage at which proceedings might be adjourned: it may be before or at the hearing.
Section 9 of the Housing Act
Mr George Laurence QC, who appeared for the London and Quadrant Housing Trust, submits that section 9 provides a complete and self-contained code which defines the power of the court to grant adjournments in claims for possession for a dwelling house let on an assured tenancy. It impliedly disapplies section 3(2) of the County Courts Act in such cases, and CPR 3.1(2) (b) must be read subject to section 9 and, so read, it has no application to such cases either. Mr Jan Luba QC, who appeared for the appellants in the first three appeals, takes issue with both propositions. He submits that, in the absence of clear words, section 9 of the Housing Act should not be construed as having displaced the wide and apparently untrammelled power in section 3(2) of the County Courts Act. Similarly, if it had been intended that the wide power given by CPR 3.1(2) (b) were not to apply in these cases, that would have been made clear, too. In short, there is no reason why the general power to grant adjournments should not have survived the enactment of section 9: Ralph Gibson LJ was right when he said in Mountain v Hastings (1993) 25 HLR 427, 438 that he had the "impression" that "section 9 is not dealing with the ordinary power of adjournment which the court has to control and direct the conduct of a trial: it is directed to an extended discretion as there described". The description to which he was referring was the heading of section 9 "Extended power of court in possession claims".
Why is it necessary to decide whether section 9 provides an exclusive self-contained code? The powers conferred by section 9(1) to (5A) are, if anything, wider than those deriving from other sources. It is, therefore, not necessary to determine in respect of the period before "the court is satisfied that the landlord is entitled to possession" under any of the grounds in Part 1 of Schedule 2 to the Housing Act whether section 9 provides an exclusive, self-contained code or not. We accept that it might appear to be necessary to decide the issue in respect of the period after the court is satisfied that the landlord is entitled to possession. But having regard to what we say about the meaning of section 9(6) at para 36 below, we consider that the issue has no practical relevance. It is for this reason that we do not find it necessary to decide whether the submissions of Mr Laurence (on which we heard only limited argument) are correct.
The power to adjourn before the court is satisfied that the landlord is entitled to possession
The court cannot be satisfied that the landlord is entitled to possession before the date of the hearing, because it is a condition of entitlement to possession under ground 8 that at least 8 weeks' rent is unpaid at that date. So what is the date of the hearing? It may be surprising that it is necessary to ask this question. But we were told during the course of argument that some district judges take the view that the date of the hearing can be the date fixed for the hearing even if on that date an adjournment is...
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