Patricia Suzanne Hoggett (Petitioner) (Respondent) John Colin Hoggett (1st Respondent) Susan Wallis (Spinster) (2nd Respondent) Dennis Wallis (3rd Respondent) Albert Chandler (4th Respondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORR,SIR DAVID CAIRNS,LORD JUSTICE ORMROD |
| Judgment Date | 27 April 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0427-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Plaint No: 7916456 |
| Date | 27 April 1979 |
[1979] EWCA Civ J0427-6
In The Supreme Court of Judicature
Court of Appeal (Civil Division)
On Appeal from the Ilford County Court
(His Honour Judge Freeman)
Lord Justice Orr
Lord Justice Ormrod and
Sir David Cairns
MR. ANTHONY EWBANK Q.C. and MR. JOHN KING (instructed by Messrs. Hunt & Hunt, Solicitors, Romford) appeared on behalf of the 2nd Respondent (Appellant).
MR. NEILL TAYLOR Q.C. and MR. WITOLD PAWLAK (instructed by Messrs. Kenneth Elliott & Rowe, Solicitors, Romford) appeared on behalf of the Petitioner (Respondent).
I have asked Sir David Cairns to deliver the first judgment in this case.
This is an appeal from a decision of His Honour Judge Freeman given at the Ilford County Court in matrimonial proceedings in which the appellant, Miss Wallis, became involved in somewhat unusual circumstances. Mr. and Mrs. Hoggett, to whom I shall refer as "the husband" and "the wife", lived with their son, aged 8, at Millbert Villa, Rainham The husband was the tenant of that house on a weekly protected tenancy. Towards the end of 1978 quarrels took place between the husband and the wife, and the husband treated the wife with violence. On 5th December 1978 she left the house; she was then pregnant. She had certain arrangements with a hospital about having an abortion and on that day, 5th December, she went into hospital and had the abortion the following day. On Friday 8th December she left the hospital. She asked the husband to take her back; he refused to do so and suggested some other place where she might live and in fact she went to a women's refuge, where she was joined by her son on 16th December and they are still there.
On 5th January of this year she started proceedings in the Ilford County Court for an order under the Domestic Violence Act 1976 for an injunction to restrain the husband from molesting her and for an order for him to quit the matrimonial home and allow her to return to it.
On 20th February the matter came before Judge Freeman; he then granted an injunction against molestation and adjourned the proceedings to the 28th of that month. On that day he continued the injunction until 7th March on the husband's undertaking not to return to the home meanwhile. On 6th March the wife presenteda petition for judicial separation, and on the same day she applied for a transfer of property order in relation to the matrimonial home and for an order under section 37 of the Matrimonial Causes Act 1973 to set aside a certain disposition by the husband, to which I shall be coming shortly.
The husband and wife both swore affidavits, and on 9th March they came before the judge again. He then continued the injunction, but released the husband from his undertaking and adjourned the matter to 20th March. On that day there was a hearing at which oral evidence was given by both parties and by other witnesses, and the proceedings were then adjourned to 27th March for argument; on that day the argument proceeded and the learned judge gave the judgment that is now appealed from.
I must now explain how Miss Wallis and others became involved. Miss Wallis and her brother were friends of the husband. On 12th February 1979 he brought them to live with him in the matrimonial home. On the 19th of that month he purported to surrender his tenancy and asked the landlord, a Mr. Chandler, to accept Miss Wallis as tenant. This the landlord was willing to do and he handed a rent book to Miss Wallis. The husband remained in the house for another couple of days; he then left and the Wallises continued to reside there.
On 1st March Miss Wallis telephoned the wife and asked her to remove from the house certain furniture which belonged to her, and there was other furniture which she owned jointly with the husband.
On 14th March the wife made a further application to the court, this time under the Matrimonial Homes Act 1967; that was an application for the husband to allow the wife into thematrimonial home. In pursuance of a suggestion made by the judge on 9th March, the Wallises and Mr. Chandler were all made parties to the proceedings. In his judgment the judge found that the purported surrender of the husband's tenancy and the re-letting to Hiss Wall is was all a sham - that the husband and the Wallises knew that the real intention was that the husband should continue to be the tenant and to occupy the premises to the exclusion of the wife. The judge did not find that Mr. Chandler, the landlord, was a party to that sham. Next, the judge found that in law the wife was still in occupation of the house, for two reasons: (1) that she had been expelled by the husband and had always wished to return; and (2) that furniture and other chattels which belonged to her, or were owned jointly by her and the husband, remained in the house.
In these circumstances he held that she was entitled to reside in the house as the wife of the husband, who was a protected tenant under the Rent Act, and he made this order, which is to be found on page 24 of the bundle of pleadings: "IT IS ORDERED (1) That there be a declaration under the Matrimonial Homes Act 1967 that the petitioner is entitled to occupy the premises known as Millbert Villa" etc.,
"(2) That the respondent do vacate the said premises" - the respondent there obviously being the husband, the 1st respondent - "by himself, his servants, or agents and do not return thereto save by arrangement with the petitioner's/Applicant's solicitors, to collect any property, such property to be agreed in advance with the applicant's/petitioner's solicitors.
"(3) That Mr. and Miss Wallis as servants or agents of the respondent, and as respondents are ordered to vacate the saidpremises within 21 days hereof.
"(4) That the 1st respondent and Mr. and Hiss Wallis be restrained from damaging the said premises or damaging or removing any chattels whether jointly orpersonally owned by the applicant/petitioner or the respondent from the premises.
"(5) That the respondent, by himself, his servants, agents or otherwise is strictly enjoined and restrained from assaulting or molesting" the wife "or the child of the family, and from removing the said child from the care and control" of the wife.
"(6) That there be no order on Section 37 of the Matrimonial Causes Act application" - there is no need to make any further reference at all to that.
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