Pemberton v Southwark London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROCH,LORD JUSTICE CLARKE,SIR CHRISTOPHER SLADE |
| Judgment Date | 13 April 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0413-7 |
| Docket Number | Case No: CCRTF 99/1128/B2 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 April 2000 |
[2000] EWCA Civ J0413-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LAMBETH COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Roch
Lord Justice Clarke and
sir Christopher Slade
Case No: CCRTF 99/1128/B2
Mr Paul Morgan, QC & Tracey Bloom (instructed by Glazer Delmar for the Appellant)
Mr Michael Barnes, QC & Tiffany Scott(instructed by London Borough of Southwark Legal Services for the Respondent)
The issue in this appeal is whether a tolerated trespasser can sue a local authority owner of premises in nuisance. In April 1990 the appellant, Miss Pemberton, entered into a tenancy agreement with the respondents in respect of a flat at 40, Chepstow Way, London SE15. That was a secure tenancy under Part IV of the Housing Act, 1985. That meant that the appellant's tenancy could not be brought to an end by the respondents except by obtaining an order of the court for possession of the flat, s. 82(1) of the Housing Act, 1985.
On the 1st July 1992 the judge of the Lambeth County Court made an order that the respondents should recover possession of the flat against the appellant "which was not to be enforced for 28 days in any event" and for so long thereafter as the appellant punctually paid the respondents "the arrears of rent by instalments of £2.15 per week in addition to the current rent". The order was made because on that date the appellant was in arrears with her rent in the sum of £896.91.
The appellant failed to make the payments required by that order. Consequently on the 29th July 1992 the appellant became a "tolerated trespasser" and was liable to be evicted from the flat at any time on the respondents obtaining from the County Court office a warrant for possession and instructing the bailiffs to execute that warrant.
On the 16th October 1992 the appellant applied to the District Judge of the Lambeth County Court for an order "to have the warrant for possession suspended on terms". On the 25th November 1992 the District Judge ordered that the warrant of possession be suspended "so long as (the appellant) pays current rent and £2.15 per week off arrears". Again the appellant failed to make the payments required by that order, the breach occurring on the 27th November 1992.
On the 28th October 1997 the appellant commenced proceedings against the respondents alleging that the flat was infested with cockroaches, that the infestation had started in 1992; that the cockroaches had entered the flat from the common parts of the building, notably the service ducts for the district heating system, which common parts were in the ownership and possession of the respondents. The appellant claimed that the infestation had affected her enjoyment of the flat, and had damaged her health and the health of her two children and had damaged her property in the flat such as mattresses, washing machines and so forth. When these proceedings were started the appellant was £904.05 in arrears on her "rent account", some £7.14 more than her arrears had been on the 1st July 1992.
In their defence, the respondents admitted the infestation and claimed that they had taken steps to eradicate the infestation but that the appellant had not always co-operated with them in that process. In addition the respondents' defence was that the appellant had no cause of action against them; she was not their tenant and did not have a sufficient interest in the flat to support an action in nuisance. The respondents further alleged that they did not owe a duty of care to the appellant.
In a reply the appellant conceded that she had not been, since July 1992 a tenant and could not pursue a statutory or contractual claim.
The case came before HHJ Cox on a preliminary issue, namely whether the appellant did have a cause of action against the respondents in respect of the infestation. On the 5th October, last year HHJ Cox ruled that there should be judgment for the respondents. It is to be noticed that by the time of that ruling the appellant had left the flat at 40, Chepstow Way and been re-housed in a different Local Authority property.
Before the judge, counsel for the appellant conceded that her claims in nuisance and in negligence stood together and should the appellant have no cause of action against the respondents in nuisance then she would have no cause of action against the respondents in negligence. That concession was withdrawn at the hearing of this appeal. It was conceded by Mr Morgan QC for the appellant that in so far as there was any claim for loss of amenity or loss of enjoyment of the flat based on negligence, then such a claim would fail if the appellant did not have a cause of action against the respondents for nuisance in respect of the infestation. It was Mr Morgan's submission that the appellant did have a cause of action in negligence against the respondents in respect of the infestation with regard to her claims that she herself had suffered personal injury and that personal property of hers in the flat had been damaged by the infestation. Mr Michael Barnes, QC for the respondents during oral argument, conceded that the appellant did have a cause of action in negligence in respect of these heads of loss and damage, subject to the appellant being able to prove that she had indeed suffered such loss and damage. Consequently it was common ground between counsel that this case would have to be returned to the Lambeth County Court for the appellant's claim based on the tort of negligence in respect of those heads of damage to be tried.
The sole issue in this appeal is whether a tolerated trespasser has a cause of action against the owner of the property in nuisance.
A secure tenancy under Part IV of the Act ceases when an order for possession takes effect, even if the former secure tenant remains in occupation, see Thompson -v—Elmbridge Borough Council [1987] 1WLR 1425 CA.
A court before whom proceedings for possession of a dwelling let under a secure tenancy are brought has the following powers under s. 85 of the Act: First, the court may adjourn the proceedings for such period or periods as it thinks fit. Second, if it makes an order for possession it may at the time of making the order for possession or at any time before the execution of that order, stay or suspend the execution of the order, or postpone the date of possession for such period or periods as the court thinks fit.
If the court adjourns the proceedings or orders a stay, suspension or postponement, the court has a duty to impose conditions with respect to the payment by the tenant of arrears of rent, if any, and rent or payments in respect of occupation after the termination of the tenancy, mesne profits, unless the court considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable. The court has a discretion to impose such other conditions as it thinks fit.
If the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession, s. 85(4) of the Act.
In Thompson's Case, where the order for possession was in identical terms to the order made in the present case, this court held that the secure tenancy continued after the making of the order of possession so long as the conditions imposed by the court were met by the tenant. At page 1428G Russell LJ said:
"It is to be observed that on the face of the order it does not purport to terminate the tenancy. The tenancy, in my judgment, plainly continues and is recognised by the order as continuing. The judgment for possession, however, is suspended so long as the current rent is paid in addition to the arrears. If that were not the true interpretation of the order, then plainly the words "the current rent" to which I have adverted, would not appear as they do."
Russell LJ went on to record that Mrs Tompson had not complied with the terms of the order, none of the arrears were paid by her; the local authority had indicated to the officials in the office of the County Court that the Court Order had not been complied with and in those circumstances a warrant for possession should be issued. It was issued. This court held that the secure tenancy came to an end when Mrs Tompson first breached the terms on which the possession order had been suspended or postponed.
Once that point is reached, and the former secure tenant remains in occupation, he or she becomes a tolerated trespasser, Burrows -v—Brent London Borough Council [1996] 1 WLR 1448 HL. That will be so whether the local authority decides to leave the former secure tenant in occupation or whether, as in this case, a warrant for possession has been issued by the office of the County Court at the local authority's request but is then suspended on terms.
In the present case it was common ground that the appellant had been a tolerated trespasser at 40, Chepstow Way from the 27th November 1992 until the 30th April 1999 when she and her children were re-housed in another property. There was a minor difference between the two sides as to whether the appellant had been a tolerated trespasser from July 1992 until the 27th November 1992; the appellant's counsel conceding that she had been a tolerated trespasser throughout that period, and the respondent's counsel maintaining that on the 25th November 1992 when the District Judge made his order suspending the warrant for execution of the possession order to the 27th November 1992 when the appellant failed to pay the current...
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