Peachey Property Corporation Ltd v Robinson
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sellers,Lord Justice Winn,Lord Justice Salmon |
| Judgment Date | 24 May 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J0524-1 |
| Court | Court of Appeal |
| Date | 24 May 1966 |
[1966] EWCA Civ J0524-1
In The Supreme Court of Judicature
Court of Appeal
(From: Mr. Justice Cantley - in Chambers)
Lord Justice Sellers
Lord Justice Salmon and
Lord Justice Winn
Mr. Lionel A. Blundell, Q.C. and Mr. W. A. Macpherson (Instructed by Hr. G. L. Leigh) appeared on behalf of the Appellants (Plaintiffs).
The Respondents (Defendants) did not appear and were not represented.
I will ask Lord Justice Winn to give the first judgment.
By a writ dated the 17th January of this year (Issued, therefore, after the commencement of the Rent Act, 1965) the plaintiffs claimed, specially endorsing their claim upon the writ, possession of 147 Chiswick Village, Oxford Road (which is in Hounslow, which itself is in Greater London), on which rent reserved under a 71/2-year lease containing an express power of reentry was in arrear to a substantial extent, totalling, with several service charges, £278 odd, consisting, so far as rent was concerned, of arrears to the 24th December, 1965, of £119 odd, and a quarter's rent, due in advance on Christmas Day of 1965, £91. That writ was duly served, according to certificates endorsed upon it, upon each of the two defendants, Colin Brian Robinson and Isobel Sheila Robinson (his wife). Neither of them appeared to the writ. Consequentially, upon the 26th January, 1966, judgment was signed in default of appearance, that judgment being signed as an administrative or ministerial step. The judgment so signed recites, "It is this day Adjudged that the Plaintiff recover against the Defendants possession of" (the flat in question) "together with arrears of rent and service charges."
The rateable value of this flat was less than £400 a year. It follows that, by force of section 1 sub-section 1 of the Rent Act, 1965, the Rent Acts were applied to it, since that sub-section provides that "The Rent Acts shall apply….to every tenancy of a dwelling-house the rateable value of which on the appropriate day did not exceed, in Greater London, £400…" The Rent Acts so applied are the Rent and Mortgage Interest (Restrictions) Acts, 1920 to 1939, or any of those Acts: that appears from a reference to the definition section, section 47 sub-section 1 of the Act.
Accordingly, the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933, section 3 sub-section 1, was made toapply to these premises, and that sub-section provided: "No order or judgment for the recovery of possession of any dwelling-house to which the principal Acts apply or for the ejectment of a tenant therefrom shall be made or given unless the court considers it reasonable to make such an order or give such a judgment, and" - one or other of two additional conditions is satisfied.
It is perfectly plain from what I have said that before the judgment in default of appearance was entered no court – no part of any court - had determined whether it was reasonable to make such an order or give such a judgment. In my view, therefore, by express force of that section the judgment in default, of appearance here was a nullity. It was, according to its terms, a judgment for recovery of possession of these premises, and that is something which the section prohibits unless there has been a prior determination by the court that it was reasonable to give such a judgment.
The case of Smith v. Poulter (reported in 1947 1 King's Bench at page 339) was a case which concerned a somewhat similar, though by no means identical, situation. It was heard by Mr. Justice Penning, as he then was. The circumstances there were as follows. The dwelling-house in question was within the Rent Restrictions Acts. The landlord of it had given the tenant notice to quit, and he issued a writ in the High Court claiming possession. The tenant failed to enter an appearance, and the landlord signed judgment for possession, as well as for arrears of rent and costs. Mr. Justice Denning held (in my respectful view rightly) that the judgment was bad because, under section 3 of the Act of 1933 (which I have read) the court had no power to give judgment for possession unless it considered it reasonable to do an and in the present case the question whether the conditions of the Act were satisfied had not been considered. It is perhaps as well to use his own words, set out at the foot of page 340. "That provision" (i.e., section 3 of the 1933 Act) "limits the jurisdiction of the court withthe result that, in any case where there is reason to think that the house is within those Acts, it is the duty of the court to see whether the conditions required by the Acts are satisfied, even though no such point is pleaded or raised by the tenant". The judge referred to three previous decisions and went on to say: "That was never done in the present case before judgment was signed".
In my view equally it is clear, and indeed irrefutable, that in this present case there was no compliance with the requirement of section 3 of the 1933 Act before this judgment in default of appearance was signed.
In Smith v. Poulter Mr. Justice Denning went on to observe — and indeed he gave effect to his view, applying the provisions of section 17 (2) of the Act of 1920, by depriving the plaintiff of his costs — that he thought it more appropriate that such cases as the one with which he was dealing should be brought in the county court. I share that view. I note that it was expressed so long ago as 1925 by Lord Justice Atkin in the case of Russoff v. Lipovitch, which is reported in 1925 1 King's Bench at page 628. At the bottom of page 639 Lord Justice Atkin said: "I think it is fairly plain that in the opinion of the Legislature it was advisable that proceedings in respect to small houses, which are generally let to poor people, should be taken in the county, court rather than in the High Court, especially as there are certain applications which have to be made in connection with such proceedings the sole jurisdiction to deal with which is given to the county court. And even where the jurisdiction is not exclusively given to the county court, as for instance where the question is whether suitable alternative accommodation is offered by the landlord, the county court judge, who is presumably familiar with the conditions of the district, is better able to decide that question than a judge of the High Court".
To my mind it is an a fortiori proposition that the county court judge, familiar with the locality, is better able toconsider and decide such matters than a Master of the Queen's Bench Division of the High Court, sitting in London, who, if the plaintiffs' contention in the present appeal is right, might be called upon to deal from time to time - very often in the absence of the defendant tenants - with premises situated in remote parts of the United Kingdom, in localities with which he was unlikely to be personally very familiar.
The same policy is, I think, implicit - indeed expressed in the Rent Act, 1965, which provides, by section 35 (1) that "The court for the purposes of this Part of this Act" — that is to say Part III of that Act — "shall be….(a) in England and Wales in relation to premises with respect to which the county court has for the time being jurisdiction in actions for the recovery of land, the county court…." It goes on to provide that, "in relation to other premises" (that is to say in cases in respect of which the county court has no jurisdiction) it shall be "the High Court".
Section 31 of the Rent Act, 1965 , in Part III of the Act, provides that "Where any premises are let as a dwelling on a lease which is subject to a right of re-entry or forfeiture" — and this was a case where there was a letting on lease for 71/2 years with a right of re-entry and forfeiture (which has been asserted) for non-payment of rent — "it shall not be lawful to enforce that right otherwise than by proceedings in the court while any person is lawfully residing in the premises or part of them" — which was the position in the instant case.
I think, therefore (as indeed Mr. Blundell conceded), that it cannot be doubted that jurisdiction in the present case was given to the county court. But attention was drawn - properly - to the provisions of section 35 sub-section 3 of the 1965 Act, which are as follows: "Nothing in this Part of this Act" (and, therefore, nothing in section 35 (1) (a)) "shall affect the jurisdiction of the High Court in proceedings to enforce a lessor's right of re-entry or forfeiture…." I do not read the rest of the sub-section. It is said, therefore, that by thoselast-read provisions jurisdiction is to be found in the High Court in the present case to enforce the landlord's right of forfeiture. I agree that that is so. But it is not possible, in my view, further to contend that those provisions have any effect on the overriding control on recovery of possession imposed by section 3 of the Act of 1933. Reading the provisions together, it seems to me that clearly Parliament has enacted that there shall still be jurisdiction in the High Court to entertain proceedings in which the landlord claims a right to forfeit a lease for breach of covenant, inter alia for a breach of covenant duly to pay the rent; but that, in all other respects, the Rent Acts, which are expressly...
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