Shaw v Groom
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE SACHS |
| Judgment Date | 04 December 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J1204-5 |
| Date | 04 December 1969 |
| Court | Court of Appeal (Civil Division) |
[1969] EWCA Civ J1204-5
Lord Justice Harman
Lord Justice Sachs and
Lord Justice Phillimore
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: His Honour Judge Dow - Clerkenwell County Court)
Mr. JOHN NEVIN (instructed by Messrs, Trott & Gentry, London, N.1) appeared on behalf of the Appellant (Plaintiff).
Mr. IAN DAVIES (instructed by Messrs. Ranee & Co., London, N.1) appeared on behalf of the Respondent (Defendant).
This is an appeal by leave from the judgment of His Honour Judge Dow, sitting at Clerkenwell, on the let August, 1969, whereby he refused the plaintiff's application for arrears of rent against the defendant in respect of a weekly tenancy of a room at 38 Lofting Road, N.1, which the defendant had occupied for some twenty years as a weekly tenant at a rent of 7s, lid. plus half-a-crown for electricity. The claim was for some £100 and was in part disputed by the defendant as to amount, but by way of supplemental defence the point was taken that no rent at all was recoverable by the plaintiff in that she was in breach of section 4 of the Landlord and Tenant Act, 1962, which makes the provision of a rent book or other similar document obligatory on all landlords in cases where there exists a contract to occupy any premises as a residence in consideration of a rent payable weekly. This enactment applies to all types of residence, whether controlled or not, and was there-Rent fore not repealed and re-enacted in the consolidating/Act of 1968.
Section 2 of the statute lays down what the contents of the document must be and provides in the case of houses to which the Rent Restriction Acts apply such matters in addition to the name and address of the landlord as may be prescribed, the notice of particulars to be in the prescribed form. The prescribed form is to be found in the Rent Book (Forms of Notice) Regulations, 1965. Section 4 of the Act of 1962 is in the following terms. It is headed "Offences". "(1) If the landlord of any premises to which section 1 (1) of this Act applies" — and these are such — "fails to comply with any relevant requirement of the foregoing provisions of this Act, he and (except in the case of a failure to comply with section 3 (1) of this Act and subject to sub-section (5) of this section) any person who on his behalf demands or receives rent in respect of the premises while any such requirement is not complied -with, shall be guilty of an -offence".
Sub-section 3: "Any person guilty of an offence under subsection ( 1) or (2) of this section shall he liable on summary conviction to a fine not exceeding £50 or, in the case of a second or subsequent conviction for an offence under either of those sub-sections, to a fine not exceeding £100".
Sub-section 4: "If any default in respect of which a landlord is convicted of an offence under sub-section (1) or any other person is convicted of an offence under sub-section (2) of this section continues for more than fourteen days after the conviction, that landlord or other person shall be deemed to have committed a further offence under that sub-section in respect of that default".
The defendant had been provided with two documents called rent books, one by the plaintiff's predecessor in title and one by the plaintiff herself, but it was conceded at once that neither of these complied with the prescribed form. The defence therefore set up this defect as a point of law precluding any order for payment of rent, and the learned judge decided to try this as a preliminary point. He delivered a considered judgment in which he concluded that the point was a good one and he therefore dismissed the plaintiff's claim. She appeals.
The learned judge followed another decision of a County Court, that of Judge Willis at Shoreditch County Court in a case known as Spitz v. Gabriel, reported in the 1968 Current Law Year Book at paragraph 2215. He held that the Court could not lend its aid in the recovery by the landlord of a sum which it would be an offence under the Act of 1962 for the landlord's agent to ask for or receive on her behalf. Judge Dow differed from Judge Willis in the construction of section 4- of the 1962 Act, holding that in a landlord's case the offence was the non-provision of the rent book and not the demand for or receipt of rent, which would only be an offence in the case of the agent. This difference is, in my judgment, immaterial. The learned judge relied mainly on the case of Anderson v. Daniel (1924-1 King's Bench 138), which was decision: of the Court of Appeal and certainlyat first reading seems directly in point. In that case the Court, consisting of Lords Justices Bankes, Scrutton and Atkin, and held that under the terms of the Fertilisers/Feeding Stuffs Act, 1906, where goods to which the Act applied were sold without supplying the invoice there prescribed, the vendor could not recover the price of the goods.
In the headnote I find the following: "By section 1 subsection 1 of the Fertilisers and Feeding Stuffs Act, 1906: 'Every person who sells for use as a fertiliser of the soil any article which has been subjected to any artificial process in the United Kingdom, or which has been imported from abroad, shall give to the purchaser an invoice stating….what are the respective percentages (if any)1 of certain chemical substances contained in the article. By section 6 sub-section 1: If any person who sells any article for use as a fertiliser of the soil….(a) fails without reasonable excuse to give, on or before or as soon as possible after the delivery of the article, the invoice, required by this Act….he shall, without prejudice to any civil liability, be liable on summary conviction to a penalty.
"Held, that, as the object of the statute in requiring the vendor to give the statutory invoice and imposing on him a penalty in the event of his default is to protect the purchasers of fertilisers, the effect of non-compliance with the requirement is not merely to render the vendor liable to the penalty, but also to make the sale illegal and preclude the vendor from suing for the price".
Turning to the judgment of Lord Justice Bankes, at page 143 he says: "What then is the effect upon the contract of a failure to comply with that condition?" — that is to say, supplying the invoice. "It is said that this is one of those statutes which do not by imposing a penalty render the contract illegal in the event of a breach of the statutory provisions, but mean the enforcement of the penalty to be the only remedy for the broach". Then in support of that lie applies a judgment of LordWrenbury in Victorian Daylesford Syndicate v. Pott 1905 2 Chancery), which I do not think I need read, but the effect of which is that the test (as he says) is whether the end of the statute is to protect the pablic or to protect the Revenue, and that that is the test to apply; and he cites Baron Parke in an earlier case. Then Lord Justice Bankes at page 144 concludes his citation from Lord Wrenbury: '"If I arrive at the conclusion that one of the objects is the protection of the public, then the act is impliedly prohibited by the statute and is illegal'". Then Lord Justice Bankes sayss "In my opinion that language applies directly to this case. Here the penalty is imposed wholly for the protection of the public, and the purchaser is entitled to take the objection that as the vendora have failed to give the required invoice the contract of sale is illegal and they cannot sue for the price". Then the Lord Justice proceeds to say that he does not think it necessary to consider whether the contract was illegal ab initio. After citing another case, he says: "So here I say that a vendor of fertilisers must comply with the provisions as to invoice in order to take advantage of the contract of sale. From that point of view it is unnecessary to consider whether the contract was illegal ab initio". Lord Justice Bankes points out that the contract could only legally be performed in one way, namely, by delivering the required invoice at the time of the delivery of the goods or so soon as possible thereafter? this invoice he treated as a warranty and therefore part of the contract and concluded that as the contract could only be performed in the prescribed manner it could not be sued on when that manner was neglected.
Then passing over (for once) Lord Justice Scrutton, I turn to Lord Justice Atkin's judgment. Lord Justice Atkin held that the mode of performance adopted by the party performing the contract was rendered illegal by the statute even though the contract itself could be performed in a perfectly legal manner. I do not think I need cite from his judgment beyond this:"This provision" (says he) "for the delivery of the invoice is a provision for the way in which contracts for the sale of fertilisers are to he performed, and if the invoice is not delivered on or before or after the delivery of the article sold and the vendor has no reasonable excuse for the omission, he will have performed the contract illegally and he cannot recover the price".
Now in my judgment that case, when looked at carefully, is clearly distinguishable from the present. Here there is nothing illegal in the contract of letting itself and it could be performed in a perfectly legal manner. Moreover the landlord in order to enforce it is not obliged to inform the court of his illegal action in failing to provide a rent book. The existence of the rent book is no part of the contract of letting and is purely collateral to it and this alone distinguishes Anderson v. Daniel, where the invoice was an essential part of the contract and operated as a warranty under it. The true question is, has the statute impliedly forbidden the contract, and in my judgment it has not. The question...
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