“SOCIAL LEGISLATION” AND THE JUDGES: A NOTE BY WAY OF REJOINDER*

Date01 January 1976
DOIhttp://doi.org/10.1111/j.1468-2230.1976.tb01441.x
Published date01 January 1976
SOCIAL LEGISLATION
AND THE JUDGES:
A
NOTE
BY
WAY
OF
REJOINDER*
IN
a recent article in the Modern
Law
Review Mr. Reynolds
reviews the judicial fate
of
the statutory covenants of fitness and
repair in section
6
of the Housing Act 1957 and section
32
of
the
Housing Act 1961,3 respectively. He argues that the courts have
frustrated the social policy and purpose behind these provisions in
two ways. In the first place, they have treated the statutory covenants
as though they were ordinary consensual terms in the tenancies to
which they apply.4 Secondly, they have imported traditional
common
law conceptions of fault liability into the statutory obligations.s For
both these reasons, the statutory covenants have been held to be
subject to an implied term that notice of want of repair be given to
the landlord.6 And recently the Court
of
Appeal have held, in
a
similarly restrictive vein, that a landlord’s obligation to maintain in
a
condition fit for human habitation premises let at a rent not
exceeding certain statutory maxima is subject to the statutory
standard being attainable at reasonable expense. The purpose of this
note is to make a number of criticisms of Mr. Reynolds’ article so far
as it deals with the judicial requirements of notice and reasonable
expense.
1.
THE
REASONABLE
EXPENSE
REQUIREMENT
In Buswell
v.
Goodwin the Court
of
Appeal held that a landlord
was entitled to possession of premises subject to a controlled tenancy
‘‘
Rejoinder
is used
in
its lay and not
its
technical pleadings sense.
;
am sorry
if
this misleads or offends, but
on
the other hand eve?, the workaday reply” is
inappropriate in
so
far as pleadings are concerned, and retort
seemed rather too
curt and contumeiiousl
1
‘‘
Statutory Covenants of Fitness and Repair: Social Legislation and the Judges
2
5
&
6
Eliz.
2,
c.
56.
3
9
&
10
Eliz.
2.
c.
65.
4
See
37
M.L.R. at pp.
396-397
referring
in
particular to the judgments of Lord
Simonds and Lord Thankerton
in
McCarrick
v.
Liverpool Corporation
[
19471
A.C.
219,
q.v.
at pp.
223. 227-229.
See also, Lord Porter,
ibid.
at p.
224.
Mr. Reynolds also
refers to the judgment of Lord Diplock
to
like effect in
O’Brien
v.
Robinson
[
19731
A.C.
912, 927, 929;
and contrasts the judgment of Lord Wright,
per contra
in
Summers
v.
Saljord Corporation
119431
A.C.
283
at pp.
293-295.
6
See
37
M.L.R. at p.
396-397.
If the cases prior to
Morgan
v.
Liverpool Corporation
[19271 2
K.B.
131
based the notice requirement
on
the landlord’s lack of access to
the premises, as Mr. Reynolds contends, then the introduction of the fault liability
conception is directly ascribable to the judgment
of
Atkin L.J. in
Morgan’s
case: and
that judgment detecting as it does fault liability as a general principle underlying
the decided cases, presents a striking analogy
to
Lord Atkin’s celebrated judgment
in
Donoghue
v.
Stevenson
[1932]
A.C.
562.
However, Lord Atkin’s reliance
on
the
fault principle in this respect
Is
insupportable
in
so
far as the obligation under
s.
6
and its predecessors is contractual and therefore prima facie absolute and
not
directly
susceptible
to
the fault principle.
8
Morgan
v.
Liverpool Corporation
[1927] 2
K.B.
131;
McCarrick
v.
Liverpool
Corporation
[1947]
A.C.
219;
O’Brien
v.
Robinson
[1973]
A.C.
912.
7
[1971] 1
W.L.R.
92.
(1974) 37
M.L.R.
377-398.
43

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