Portland Managements Ltd v Harte
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCARMAN |
| Judgment Date | 28 October 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J1028-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 October 1975 |
[1975] EWCA Civ J1028-3
Lord Justice Megae
Lord Justice Scarman and
Lord Justice Bridge
In The Supreme Court of Judicature
The Court of Appeal
(Revised)
(Civil Division)
(From: His Honour Judge McIntyre - West London County Court)
Mr. ROMIE TAGER (instructed by Messrs. Bailey & Peltz) appeared on behalf of the Appellants (Plaintiffs).
Mr. RALPH GIBSON. Q.C. and Mr. RICHARD BROCK (instructed by Messrs. Lisner & Co.) appeared on behalf of the Respondent (second Defendant).
LORD JOSTICE MEGAW: I shall ask Lord Justice Scarman to deliver the first judgment.
No. 72 Coningham Road, Shepherds Bush, is a house of some three storeys and a basement and has been the subject of heavy, and no doubt expensive, litigation since 1973. The plaintiffs in this action, who are the appellants in this Court, are the owners of the house. They have had a registered absolute title to the house since the 21st March, 1973. It would appear from such of the history of the house since then as so have learnt in the course of the appeal that they have never succeeded in obtaining vacant possession. They have, however, over since March, 1973, maintained that they are the owners of the house and entitled to immediate possession.
The history of litigation that has beset this house since 1973 need not be investigated in detail by us. Suffice it to say that on the 12th July, 1974, the plaintiffs sought, under Order 113 of the Rules of the Supreme Court, an order for possession against some seven named persons and other persons unknown. Their originating summons issued under the Order was served on seven named defendants; an affidavit was sworn by the solicitor to the plaintiffs; and the application was heard by Mr. Justice Kerr in chambers on the 26th July. When they reached the judge in Chambers, the plaintiffs were given two affidavits, one a worn by a His a Devereux and the other sworn by & Mr. Nolan. The effect of these affidavits was that the deponents were setting up a claim on behalf of Miss Devereux to an interest in the whole of the house, and Miss Devereux was asserting that she was in possession. By consent, Miss Devereux and Mr. Nolan were then added as parties to the proceedings before Mr. Justice Kerr. Mr. Justice Kerr ordered that the summons should be transferred to "the County Court and that thereafter the claim of the plaintiffs against the seven named defendants is their summons andagainst Miss Devereux and against Mr. Nolan should proceed as an ordinary possession case in the County Court. It is common ground that thereafter the action has continued in the County Court as an action for possession in which the cause of action alleged against the defendants is . It is to be noted in passing that Mr. Justice Kerr ordered that the costs of the proceedings before him should be costs in cause.
Contemporaneously with the proceedings before Mr. Justice Kerr, there were occurring the final stages of a County Court action brought by plaintiffs against Mr. Nolan himself. The plaintiffs had sued Mr. Nolan in the County Court for possession and had son their action. Mr. Nolan in the course of that action had given evidence and had called Miss Devereux, who gave evidence in which she indicated that she was lawfully a tenant in possession of the house. All this evidence of Mr. Nolan and Miss Devereux, it -must be assumed, was disbelieved by the county Court Judge, since he made an order for possession at the suit of the plaintiffs. Mr. Nolan appealed, and his appeal was pending when Mr. Justice Kerr dealt with the plaintiffs' originating summons against the squatters. The appeal was in fact heard three days after Mr. Justice Kerr had transferred the proceedings before him to the County Court; and the appeal was dismissed.
The next event was that on the 27th August, 1974, the plaintiffs delivered particulars of claim in their County Court action - that is, the action which had been brought into being by the order of Mr. Justice Kerr. The particulars of claim were described by the County Court Judge when the matter ultimately came on for trial as a "curious" document. I do not think that is a fair description of the document. It appears to me to be a perfectly properly and appropriately drafted statement of the plaintiffs, case.
The plaintiffs by now were suing the so-called squatters, all seven of whose were described as the first defendants" MissDevereux, brought in by order of Mr. Justice Kerr, as the second defendant; and Mr. Nolan, brought in by order of Mr. Justice Kerr, as the third defendant. The plaintiffs, vary naturally, had to plead somewhat elaborately so as to take care that the various contingencies, any one of which might arise when the evidence was given, were considered by the County Court Judge. Suffice it to say, for the purposes of this appeal, that the plaintiffs alleged against Miss Deverux, who is the respondent to the present appeal, that the was never in occupation, or not at any material time in occupation, of the house at all. Alternatively, they claimed against - Miss Devereux that, if she was, she as a trespasser; and they railed on their registered title as giving them the right to immediate possession of - or, as was said in the old cases, the right of entry to -this house. There were other allegations against the other ants.
Mr. Nolan, no doubt somewhat bruised by his forensic defeat in the County Court and Court of Appeal, which had ended as recently as the end of the preceding July, took no part in these County Court proceedings at all. Miss Devereux in due course filed a defence. The terms of the defence are of some importance to the issue which has been argued in the appeal. In paragraph 3 of her defence, after denying the plaintiffs' title - a denial which, of course, soon evaporated at the trial when the registered certificate of title was produced; nevertheless in her pleading she denied it - the second defendant alleged as follows: "It is admitted and averred that the second defendant is in occupation of the premises as the lawful tenant of one Prendergast who at the time of the granting of the tenancy was the lawful owner of the freehold of the premises" in other words, she is confessing and avoiding. If, contrary to her contention, the plaintiffs prove their title, she seeks to avoid their claim for possession by setting up a lawful tenancy vested in her.
The action came on for trial before His Honour Judge McIntyre. Both the plaintiffs and Miss Deversux, the second defendant, were represented by counsel at the trial. The plaintiffs opened their case "by putting in the land certificate and describing to the court the various steps in their title, all of which can be seen in the land certificate. Mr. Tager, for the plaintiffs, submitted that the land certificate was conclusive evidence of the title of the plaintiffs, and so far as one can see the judge accepted that submission as indeed he had to do, since it has a correct submission in point of law. The judge, however, at a very early stage in 'the argument, indicated to Mr. Tager his very strongly-held opinion that proof of an absolute title of ownership in the plaintiffs was not by itself sufficient to establish a cause of action is trespass against someone who was in possession. One sees from the notes of judgment how he put it; and I cannot do better than quote the wards of the judge. He said in the course of his judgment: "During the submissions made to me by Mr. Tager when opening his case, Mr. Tager suggested that where the title to a property is proved or admitted, If a defendant says in his defence that she is a tenant of that property, then the onus is cast on the tenant to prove her alleged tenancy. I find this submission to be contrary to all the of procedure in the civil courts and goes against all that I have experienced in 47 years at the Bar and on the Bench.
The learned trial judge is there expressing a very strong view as to the law; and this view he expressed strongly and emphatically, and more than ones, to Mr. Tager when Mr. Tager was opening the plaintiff's case. Mr. Tager nevertheless stood firm on his title as against Miss Devercux. But he did call evidence to deal with the squatters who were the first defendants. That evidence is of some importance. He first of all called a Mr. Barker, who visited the premises on four days in July, 1974, and found them occupied; but never saw Miss Devercux there. He called a Mr. Leger Moore, onofficial of the plaintiffs, who went to the premises either at the end of August or early September, 1974, to execrate the warrant of possession that the plaintiffs had detained against the unsuccessful defendants; and he again described the promises as he saw them; but found no Miss Devereux there. Mr. Tager also called Mr. Torrance, a solicitor who is a partner in the firm of solicitors acting for the plaintiffs. Mr. Torrance went there with Mr. Moore to see that the warrant of possession was executed against Mr. Nolan. Mr. Torrance also described the premises as he saw them, and he said that he found no ladies' apparel there; also, he saw no evidence or signs of Kiss Devereux. This evidence was of some importance to the plaintiffs case against Miss Devereux, although, of course. It was called to deal with the other limb of the case, because the primary submission on behalf of the plaintiffs was that miss Devereux was never in occupation, or not at any material time in occupation.
That evidence having been called, counsel for the defence elected to call no evidence. He...
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