Routhan v Arun District Council
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE EVELEIGH,LORD JUSTICE BRANDON |
| Judgment Date | 24 July 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0724-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 July 1981 |
| Docket Number | 81/0375 |
[1981] EWCA Civ J0724-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE DIVISIONAL COURT
Royal Courts of Justice
The Master of The Rolls
Lord Justice Eveleigh
Lord Justice Brandon
81/0375
MR. R. I. GRAY, Q.C. and MR. F. S. PHILLIMORE (instructed by Messrs. Whitehouse Gibson & Alton, London, W.C.1.) appeared on behalf of the Appellant.
MR. A. R. PORTEN (instructed by Messrs. Sharpe Pritchard & Co., London, W.C.2.) appeared on behalf of the Respondents.
Once again we have to consider the doctrine of unity. It says that in law "husband and wife are one and the husband is that one". I remember well that it was invoked when I used to prosecute in the magistrates' courts. A wife was travelling on the railway using her husband's ticket. When she put forward the excuse: "We are one in the eyes of the law", the collector replied: "But not in the eyes of the Southern Railway".
Now we have to consider that doctrine in the law of rating. It has embarrassed us for years. It has long been held that, when husband and wife are living together in the matrimonial home, they do not occupy it jointly for rating purposes. There is only one occupier: and the husband is that one. So also when they separate. The husband deserts her and moves elsewhere. The husband remains the occupier for rating purposes. The wife does not become the occupier so as to be liable for the rates.
Does that remain the law today? Especially as I said in Green v. Midland Bank Trust 10 June 1981 (not yet reported):
"…the doctrine of unity and its ramifications should be discarded altogether, except insofar as it is retained by judicial decision or by Act of Parliament."
The Facts
Now for the facts of this case. The parties married in 1962 in the parish church at Lancing. The husband was a civil engineer. He was often overseas on his work. They made their home in a house at Angmering. It was in the name of the husband only. They had three children, now aged 17, 14 and 12. In 1976, whilst they were still under the same roof, the marriage broke up. On 29 September 1976 the wife obtained a decree nisi of divorce on the ground that the marriage had broken down irretrievably. The wife was given custody of the three children. The husband remained in the house, living separately from the others.
In December 1978 the decree was made absolute. The husband left for good or for worse. On 21 December 1978 an order was made that the house be transferred within 28 days into the joint names of husband and wife, to be held on trust for sale in equal shares, the sale to be postponed till the youngest child attained the age of 17. The wife was to be responsible for the mortgage repayments on the house. The husband was to pay £5 a week for the wife and £10 a week for each child as periodical payments. Nothing was said about the rates on the house.
The husband did not transfer the house into joint names during 1979 or 1980, but he is said recently to have done so. The house remained in his name at all times material to this case.
Until decree absolute the local authority treated the husband as liable for the rates, and not the wife. But since decree absolute the local authority say the wife is liable. They assessed her in the sum of £77.24 for the period from 22 December 1978 to 31 March 1979. She refused to pay. She said that the husband was liable and she was not. The local authority applied for a distress warrant against her. The magistrates granted it. But at her request they stated a Case for the opinion of the High Court. The Divisional Court upheld the decision of the magistrates. They refused leave to appeal but, as the case involved general questions of importance in the law of rating, this Court gave leave to appeal.
Rateable occupation
Ever since the Poor Relief Act 1601 the person liable to pay the rates is the occupier, not the owner. So in 1633 the tenant was held liable, not the landlord, see Sir Anthony Earby's Case (1633) 2 Bulst. 354. It is still the law under the General Rate Act 1967. Section 16 says that "every occupier of property…shall be liable to be assessed to rates in respect of the hereditament". In the classic definition of rateable occupation the first necessary ingredient is "actual occupation", see John Laing v. Kingswood (1949) 1 KB 344 at page 350. In Ryde on Rating the principal heading is "Actual Occupation", page 28. Occupation is a matter of fact. As I said in Newcastle City Council v. Royal Newcastle Hospital (1959) AC 248 at page 255:
"But legal possession is not the same as occupation. Occupation is a matter of fact and only exists where there is sufficient measure of control to prevent strangers from interfering…"
The title to the land is irrelevant save where the fact of occupation is ambiguous. Then the title may be looked at so as to determine who is the occupier.
Husband and Wife
How then do husband and wife stand as regards "actual occupation"? So long as the law was dominated by the doctrine of unity, it was the husband who was regarded as the rateable occupier. He was the only one in rateable occupation, not the wife. It was the same in other branches of the law. Notably in the law of vendor and purchaser. Quite recently Mr. Justice Templeman said that:
"actual occupation for the purposes of section 70(1)(g) (of the Land Registration Act 1925) does not include the position of the wife of the legal owner who is in occupation", see Williams & Glyn's Bank v. Boland (1979) 1 Ch. 312 at page 332.
The doctine of unity was always a fiction. It is now rapidly being dispelled. It has been dispelled in the law of conspiracy in Green v. Midland Bank Trust 10 June 1981 (not yet reported). In the law of vendor and purchaser it was dispelled by the decision of this court and the House of Lords in Williams & Glvn's Bank v. Boland (1979) 1 Ch. 312; (1980) 3 WLR 138. It is, to use Lord Wilberforce's words, "heavily obsolete"(page 144 C-D). It is now established that, when husband and wife are living together in the matrimonial home, they are joint occupiers of it just as partners are. I venture to quote what I said in that case at page 332:
"Most wives now are joint owners of the matrimonial home—in law or in equity—with their husbands. They go out to work just as their husbands do. Their earnings go to build up the home just as much as their husband's earnings. Visit the home and you will find that she is in personal occupation of it just as much as he is. She eats there and sleeps there just as he does. She is in control of all that goes on there—just as much as he. In no respect whatever does the nature of her occupation differ from his. If he is a sailor away for months at a time, she is in actual occupation. If he deserts her, she is in actual occupation. These instances all show that 'actual occupation' is matter of fact, not matter of law. It need not be single. Two partners in a business can be in actual occupation. It does not depend on title. A squatter is often in actual occupation. Taking it simply as matter of fact, I would conclude that in the cases before us the wife is in actual occupation…"
Joint Ownership
Just as the fiction has been dispelled in the law of vendor and purchaser, I feel the time has now come for it to be dispelled in the law of rating. Nowadays husband and wife are usually joint owners of the matrimonial home. Often joint owners of the legal title as well as the beneficial interest. Even if the legal title is in one or the other, they both have a share in the beneficial interest, see the discussion in Williams & Glyn's Bank v. Boland (1979) 1 Ch. at pages 328–329. In all such cases where they are living together in the house, they are jointly in actual occupation of it. Neither occupancy is "paramount" to the other to use the word of Lord Russell of Killowen in Westminster City Council v. Southern Railway (1936) AC 511 at page 529. There is no competition between them so far as occupation is concerned. Be their shares in ownership equal or unequal—nevertheless their occupation is joint. Rateability does not depend on who has the title—be it legal or equitable—but on actual occupation. The actual occupation by husband and wife is joint in fact. It is, therefore, joint for rating purposes.
Single Ownership
Now take the case where the husband and wife are living together in the house but they are not joint owners—either in law or in equity—only one of them is the owner without the other having any interest in it at all. Clearly that one is in rateable occupation. But I think the other may also be, because he or she may be in joint occupation: and rateable therefore as a joint occupier. Rateability depends on occupation, not on title.
Joint Occupation—Both Living There
It was at one time supposed that in rating law you could not have a joint occupation, cf. Malden & Coombe Corporation v. Bennett (1963) 1 WLR 652. But that is shown to be erroneous by the words of Lord Diplock in Northern Ireland Commissioner of Valuation v. Fermanagh Protestant Board of Education (1969) 3 AER 352 at page 364. Furthermore, there is direct authority in The Queen v. Paynter (1845) 7 QB 255. Putney Bridge was built by moneys provided by many shareholders. They became jointly entitled to the tolls. These were collected by one of their number who resided in the toll-house. The shareholders were held to be rateable occupiers of the tolls and to be liable for the rates. Lord Denman LJ said (at page 271):
"I do not think it was necessary that a summons should...
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