Ross v Collins
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PEARSON,LORD JUSTICE DAVIES |
| Judgment Date | 31 January 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0131-3 |
| Date | 31 January 1964 |
| Court | Court of Appeal |
[1964] EWCA Civ J0131-3
In The Supreme Court of Judicature
Court of Appeal
(From: His Honour Judge Howard - West Londen County Court)
Lord Justice Pearson
Lord Justice Davies and
Lord Justice Russel
Mr. NEIL LAWSQN, Q. C. and Mr. JOHN M. BOWYER (instructed by Messrs Wright & Bull) appeared on behalf of the Appellant (Defendant).
Mr. R. R. RUSSELL (instructed by Messrs. Robin Ross & Co., London, N. W.6) appeared on behalf of the Respondents (Plaintiffs).
(without calling upon Counsel for the Respondents)
This is an appeal by the defendant, Miss Collins, against a judgment of His Honour Judge Howard in the West London County Court on the 23rd October, 1963. He decided against the defendant's claim to have succeeded to a statutory tenancy and he gave judgment for the plaintiffs for possession and mesne profits.
The question here is whether Miss Collins was a member of Mr. McRae's family at the time of his death. The question arises under section 12 (l) (g) of the Rent and Mortgage Interest (Restrictions) Act, 1920, as amended by subsequent Acts. It arises in this way. The plaintiffs are owners of a flat in Hammersmith, or. McRae was in occupation as statutory tenant. He died at the age of 92 in about. February, 1962. The defendant, Miss Collins, who is now about 56 years of age, had been with Mr. McRae in the flat for many years, and had looked after him and had nursed him with care and affection. She remained in possession of the flat after his death. The plaintiffs brought an action for possession, and applied for sunmary judgment under Order 14. The defendant swore an affidavit in opposition, claiming to be entitled to succeed to the statutory tenancy as she was a member of the family of Mr. McRae, the family relationship between Mr. McRae and herself being that of father and adopted daughter. Leave to defend was given. Later, in her formal Defence, she merely said she was a member "of his family without specifying the family relationship.
It is right to bear in mind the exact terms of the material part of the definition in section 12 (1) (g) as amended. They are as follows; "The expression 'tenant' includes the widow of a tenant who was residing with him at the time of his death, or where the tenant leaves no widow or is a woman, such member of the tenant's family so residing as aforesaid as may be decided in default of agreement by the county court".
Evidence was given by the defendant and her witnesses. Noevidence was given on "behalf of the plaintiffs. The facts are not in dispute. They have been fully and clearly set out in the careful judgment of the learned judge, and I will not attempt to re-state them. I will merely call attention to certain salient points bearing on the question whether there was any father and daughter relationship, and that will lead on to the main conclusions on the facts given by the learned judge.
(a) When the defendant and her mother first went to Mr. and Mrs. McRae's flat (because Mrs. McRae was then living) they went as sub-tenants of two rooms. That was in the year 1940, and the defendant would then be, I think, about 33 years of age. She did not begin looking after Mr. McRae as well as her mother until about 1951, and her mother lived till 1958.
(b) In the letters, which the learned judge very rightly described as "most lively and affectionate letters", she addressed him as "Dear Mr. McRae" and her signature was "Anne Collins" or "A. Collins" or "A.C.". When he wrote to her he addressed her as "Miss Collins".
(c) She said in evidence that no one ever referred to Mr. McRae as Yer father or ever referred to her as his daughter.
(d) When after the death of Mr. McRae the defendant asked his son to write on her behalf to the landlords' agents, she drafted these words for him to write (which are set out on page 3 of the judgment): "The daughter of a friend of my late father and mother, a Miss Collins, niece of the late William Edward Collins, former Bishop of Gibraltar, and by marriage of the late Reginald Moody, one time Chaplain to the British Embassy in Vienna, has looked after my father here since my mother's death, housekeeping for him and latterly nursing for 22 years and now wishes to take over the tenancy of the flat".
(e) She said in evidence, referring to Mr. McRae (this is set out at page 4 of the judgment); "He treated we as a member of his family, that is all know. I thought I had a moral right. I always regarded him as a sort of elder relative, partly as my father, partly as my elder brother".
(f) There was evidence from Canon Beer that the defendant and Mr. McRae "seemed to "be very good friends together - living a community life".
The learned judge's conclusions on the facts are set out on page 4 of his judgment, and there is no doubt that there was ample evidence to support his conclusions. He said: "I find that Iuiss Collins never passed as his daughter nor he as her father, that he never recognised her as his daughter, nor she him as her father, and that he never stood to her in her parentis". A little later he said: "There was no blood relationship between these people, there was no relationship by marriage of these people, and there was no assumption of the title of father by him, and both being of full age when they met there was no question of either one having parental control over the other". Then he went on to state his conclusion of fact and law, which was, "The inevitable result must be that this lady does not qualify for protection under the Act". I think it is fair to say of that final conclusion on fact and law of the learned judge that it should be read as based on what preceded it generally and not merely on the last sentence.
One of the arguments that Mr. Lawson has presented was to the effect that the learned judge applied the wrong test by considering only whether Miss Collins fell in one of the three classes or specific categories of relationship and he did not apply a proper test. But in my view, reading the learned judge's judgment as a whole, he did not fail to apply the proper test, which I will mention in a moment.
This point is, I think, plain and important: there was no% on the learned judge's findings and fully justified conclusion, any father and daughter relationship. It does not matter whether one does or does not distinguish between the relationship of father and adopted daughter and some other conceivable father and daughter relationship. Whether there would be any difference 1 do not pause to consider. There simply was no father and daughter relationship here. That, as I say, is a matter offact which was found by the learned judge, and there was ample evidence on which he could so find.
As to what the relationship was, it was that they were friends. Canon Beer said just that - that they were friends. Moreover, as the judge said on page 2 of his judgment, "He" (that is Kr. McRae) "was very lucky to have the services of so devoted a woman, but there it is, she was to all intents and purposes an unpaid housekeeper, giving these services, mothering the old man, receiving in return free accommodation".
Now as to the law, the courts have been faced with the difficult task of applying the somewhat vague and wholly undefined expression "member of the tenant's family" to a wide variety of situations. It is not easy to extract from the decisions in the judgments the relevant principles or tests. However, one broad general principle is clearly established. Lord Justice Cohen, in Brock v. Wollams (1949 2 King's Bench 388, at page 395), said this: "The question the county court judge should have asked himself was this: Would an ordinary man, addressing his mind to the question whether Mrs. Willams was a member of the family or not, have answered 'Yes' or 'No'?". That passage has been adopted and followed many times subsequently. In particular it was adopted and followed by Lord Evershed in Jones v. Whitehill (1950 2 King's Bench 204, at pages 206-7), in Gammans v. Ekins (1950 2 King's Eench 326, at page 333), in Langdon v. Horton (1951 1 King's Bench 666, at page 669), and in Darnell v. Millwood (1951 1 All England Reports, page 88). It was also adopted and followed by Lord Justice Singleton in Langdon v. Horton (supra) and by Lord Justice Somervell in Hawes v. Eenden (1953 1 Weekly Law Reports 1169, at pages 1170-1).
That principle is, of course, only a broad and general principle. It is to some extent supplemented by what Mr. Lawson at one stage of his argument refered to as "the categories". He was referring, I think, to a passage in Lord...
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