Payne v Cooper
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ROMER,LORD JUSTICE ORMEROD |
| Judgment Date | 15 October 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J1015-2 |
| Court | Court of Appeal |
| Date | 15 October 1957 |
[1957] EWCA Civ J1015-2
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls. (Lord Everahed)
Lord Justice Romer And
Lord Justice Ormerod.
Mr Roy Dunn (Instructed by Messrs Wilson, R.L. Houlder & Co.) appeared on behalf of the Appellant (Plaintiff).
Mr Patrick Back (instructed by Messrs Parfltt, Creswell & Williams) appeared on behalf of the Respondent (Defendant).
The plaintiff in these proceedings, Miss Ellen Payne, is the owner of certain premises in Northolt known as "The Elms", Ruislip Road, of which the defendant is the occupier. She brought proceedings at the baginning of this year for possession of these premises, which admittedly were within the scope of the rent restriction legislation, alleging as the ground for conferring jurisdiction on the court that, as was the fact, the defendant had fallen seriously in arrears in payment of his rent. The defendant in actual fact appears to have supposed that one of the persons of whom the plaintiff is the personal representative, had given or would give the premises to him by will, in which hope he had been disappointed; and as a consequence he appears to have adopted a somewhat bellicose attitude which clearly did not imprese the doputy County Court Judge before whom the application came.
We have not before us any copy of the order which the deputy County Court Judge made upon that application. Its date was the 15th February 1957, and though we have not the form of order before us, Its content Is clear and conceded, It was that the defendant should deliver up possession of "The Elms" at the expiration of one month, namely on the 13th March 1957; and the order also included a Judgment for the arrears of rent, amounting to £23.16s, and costs, The form of the order, therefore, was, to use the adjective which. omorges in certain of the cases, "absolute" or "final" It was an order that possession on or before a spooifio date should be delivered up. there was no condition upon performance of which the of effect of the order might be suspended.
The possession date was in fact postponed as a result, as I understand, of an agreement which was reached between the parties; but nothing of any materlslity turns upon that fact. For present purposes, the order remained in form an' intent an absolute order in the sense in which I have used that word. Put as time passed, so apparently did the bolllcostty of the defendant, who then was prudent enough to take advice; and he made an application (before the date arrived when he should give up possession) in which he invoked the terns of subsection (2) of section 4 of the Rent Act 1923, and asked that the the order of the 13th February should be very substantially varied both in terms and character and he also paid into court the arrears of rent, and I think the costs.
The matter came before the learned County Court Judge on the 6th May of this year, and the order that he made was in these terms: "It is ordered that the date for possession of the premises known as'The Elms', Rulslip Road, Northolt under the order of the 13th February 1957 be postponed for twenty-eight days from today on condition that on or before that date" which. of course, obviously means at the expiration of the twenty-eight days - "the defendant shall pay or shall have paid the arrears of £23.16s. together with the other arrears accruing to today and the costs of the hearing on the 13th February 1957 and the costs of today assessed at £2.2s, and on such payment the order for possession shall be discharged".
It isplain enough that the learned County Court Judge took in May a much more favourable view of the defendant than had the deputy County Court Judge in February. In the ocurse of his Judgment the learned Judge states In terms that he wished to exercise all available powers to allow the defendant to remain in possession provided that he paid rent; and that view seems to have been based in part upon his age - the defendant is seventy- eight - and also perhaps upon the fact that he is a keen gardener, and the learned County Court Judge may have thought of the famous essay of Francis Bacon.
But we are not concerned with the reasons. No question of that kind has come before us. The only matter with which we must deal is that of the Jurisdiction of the Judge to make the order which he made on the 6th May; for it is Mr Dunn's contention that it was ultra vires the subsection invoked.
On a previous occasion I am reported as having said that the language of this subSection is somewhat Inelegant, and I find no reason to repent of that criticism. It may be that, as is not uncommon in this sort of legislation. Parliament sought, so to say, to take into the scope of this subSection a number of different conceptions, so that the result requires a little careful thought, to put it no higher. The subsection supersedes and reenacts section 5 subsection (2) of the 1920 Act, and the language is as follows: "At the time of the application for or the making or giving of any order or Judgment for the recovery of possession of any such dwelling-house or for the ejectment of a tenant therefrom or in the case of any such order or judgment which has been made or given whether before or after the passing of this Act and not executed at any subsequent time the court may adjourn the application, or stay or suspend execution on any such order or Judgment, or postpone the date of possession for such period or periods as It thinks fit, and subject to such conditions (if any) in regard to payment by the tenant of arrears of rent or means profits and otherwise, as the court thinks fit, and, if such conditions are complled with, the court may, if it thinks fit, discharge or rescind any such order or Judgment",
It is possible for present purposes somewhat to simplify that language, for the first three lines are concerned with powers given to the court at the time that the order for possession is made; and for present purposes we can exclude them from consideration. I will, however, read again such of the following language as I think is relevant, and my omissions will not in any way, in my judgment, invalidate the conclusions on construction which I eventually reach, "In the case of any order for the recovery of possession of a dwelling-house which has been made and not executed the court may suspend execution or postpone the date of possession for such period as It thinks fit, and subject to such conditions as the court thinks fit, and, if such conditions are complled with, the court may discharge such order" That reading (if it is, as I hope, Justified) starts with the required premise that there should have been an order under the Act for possessin of a rent controlled dwelling-house not executed, That premise is satisfied in this case. There had been on the 13th February 1957 an order for possession, and it had not been executed.
That being so, at first sight, it would appear to me that inevitably the section gives to the court first a power at some later date, on application, to suspend execution; second, a power to postpone the date of possession which the first order contains; third, in the latter event at any rate, a power to impose conditions for the postponement of possession as the court thinks fit; and finally a power (If those conditions so imposed are compiled with) to discharge the original order. To dispose at once of one point, the last five words of the subscetion "any such order or judgment" make it, as it seems to me impossible to say other than that the order which may be discharged includes (or may include) the original order for possession, the making of which gave rise to the subsequent exereise of the powers.
Mr Dunn, It appears to me, has been faced with this difficulty. Once it has to be conceded that the first step - the first of the powers I have enumerated - is available. it becomes to my mind really Impossible for him thereafter to stop. If it is right, in other words, that in the case of an order for possession which has been made and not executed, the court may upon later application suspend execution or postpone the date of possession, it seems to me that an inevitable step has been taken which leads inexorably to the final conolusion that all the other steps, all the other alternatives, are equally available. I, of course, fully agree that apart from that subseotion It may well be that by the ordinary law, if a court has made an order for possession to take effect without qualification on a particular date. It would not be competent for the court thereafter to interfere with that order; and it would also not be competent for It to make an order for possession, coupled with some Indefinite term of postponement. But we are dealing here with the apeolflo provisions of this legislation; and at first sight, as a matter of construction of the subsection, the conclusion appears to me to he Involved necessarily from the language, that, given an order for possession made but not executed, the court may of subsequent order postpone the fixed date on conditions, and thereafter may provide for the discharge of the order if the conditions are satisfied. In using the word "thereafter" I must not be taken to be indicating that a further order is required, though that is a matter which I must deal with later in this Judgment.
The effect, If that view is right, undoubtedly is that by exercising its powers the court may convert what originally was, to use the same language already used, an absolute or final order into a conditional one; and I agree that on the terms of this section Parliament has provided in its wisdom that the court may discharge...
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