Tamar Manel and Others v Bilquis Memon
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,LORD JUSTICE MANTELL,Lord Justice Nourse,MR JUSTICE HOLMAN |
| Judgment Date | 05 April 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0405-1 |
| Docket Number | CCRTF 2000/0172/B3 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 April 2000 |
[2000] EWCA Civ J0405-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WILLESDEN COUNTY COURT
(His Honour Judge Sich)
Lord Justice Nourse
Lord Justice Mantell and
Mr Justice Holman
CCRTF 2000/0172/B3
Mr G Buttimore (instructed by Messrs Birdy & Co, Wembley Park) appeared on behalf of the Appellant Defendant.
Mr M Brett (instructed by Messrs Robert Kyle & Co, Marlow) appeared on behalf of the Respondent Claimants.
On 26th October 1999 Mr District Judge Morris, sitting in the Willesden County Court, made an order for possession of 91 Thirlmere Gardens, South Kenton, Harrow, Middlesex. The order was made under the accelerated possession procedure, which is now to be found in Civil Procedure Rules Schedule 2, rule C49.6A, and on the footing that the property was subject to an assured shorthold tenancy commencing on 28th March 1994 in respect of which a notice under section 21 of the Housing Act 1988 had been served. The landlords of the property are the claimants, Tamar Manel, Daniel Manel and Rachel Korenman, and the tenant is the defendant, Bilquis Memon.
2. The order was made without the attendance of either party, on the basis of an affidavit in standard form sworn by the third claimant's attorney and notwithstanding that a reply had been duly delivered by the defendant containing the following answers to questions on a standard form:
"I moved into the property under an oral tenancy agreement on 26th March 1994. The Agreement produced by the Plaintiffs was signed [a] few days later. The oral agreement was for a tenancy of 10 years."
"I occupied the property under an oral tenancy agreement of 26th March 1994. After I moved in the landlady Rachel Korenman pressurised me into signing the Agreement allegedly dated 28th March 1994. I was already an Assured Tenant there and in any event the Notice of Assured Shorthold Tenancy was given later."
The reply was sent to the court under cover of a letter from the defendant's solicitor stating that he had applied for emergency legal aid to defend the proceedings on the basis set out in the reply and requesting the matter to be listed for directions.
Although it is not directly relevant to anything that has to be decided on this appeal, we have expressed concern at the district judge's decision to make an order on paper without giving the defendant an opportunity to make representations at an oral hearing. The relevant paragraphs of rule C49.6A are the following:
"(15) After considering the application and the defendant's reply (if any), the judge shall either -
(a)make an order for possession under paragraph (17); or
(b)fix a day for a hearing under paragraph (16) and give directions regarding the steps to be taken before and at the hearing.
(16) The court shall fix a day for the hearing of the application where the judge is not satisfied as to any of the following -
(a)where the tenancy and any agreement for the tenancy were entered into before 28th February 1997 that a written notice was served in accordance with section 20 of the 1988 Act,
(b)that a written notice was given in accordance with section 21 of the 1988 Act,
(c)that service of the application was duly effected, or
(d)that the claimant has established that he is entitled to recover possession under section 21 of the 1988 Act against the defendant.
(17) Except where paragraph (16) applies, the judge shall without delay make an order for possession without requiring the attendance of the parties."
Paragraph (19) empowers the court, either on an application made on notice or on its own initiative, to set aside or vary any order made under paragraph (17).
The defendant's reply contained two assertions which, on their face, fell within paragraph (16)(a) and (d) respectively: first, the assertion that the notice of assured shorthold tenancy (ie, the notice required by section 20 of the 1988 Act) was given later than 28th March 1994 (subparagraph (a)); second, the assertion that the defendant was already in occupation under an oral agreement for a tenancy of ten years granted on 26th March 1994 (subparagraph (d)). I have had great difficulty in understanding how, in the light of those assertions, it was appropriate for the district judge to go ahead and make an order for possession without requiring the attendance of the parties.
Mr Brett, who has appeared for the claimants before us and to whom the court is indebted for his argument, has suggested that the correct test to be applied is this. Where a reply, on its face, raises a case which, if true, would constitute an arguable defence to the claim for possession, then the judge cannot be satisfied within the terms of paragraph (16) and must fix a day for the hearing of the application. For my part, while recognising that we have not heard full argument on the point, I would regard that as a good working test in the application of paragraph (16). I emphasise that it is no satisfaction to the tenant to be able to apply under paragraph (19) to set aside or vary the order for possession, because the onus on the claimant to make out a case is thus wrongly shifted to the defendant.
I return to the actual history of the case. Pursuant to the district judge's order a warrant of possession was duly obtained for execution on 27th January 2000. On 20th January the defendant applied for a stay. The application was supported by a five-page affidavit which substantially reiterated and expanded the defence of a ten-year oral agreement put forward in the reply. The application came before Mr District Judge Cohen early on 25th January, when it was dismissed. By that time an additional point had been raised on the defendant's behalf, which was that the notice served pursuant to section 20 of the 1988 Act was defective. The district judge's decision to dismiss the application was much influenced by the defendant's delay in making it.
The defendant immediately appealed to the judge. Her appeal came before His Honour Judge Sich later in the morning of the same day, when it too was dismissed, though the judge ignored the delay, preferring to concentrate on what he referred to as the two central elements of the case. The defendant was represented at both hearings by her solicitor, Mr Birdy. Judge Sich said that the matter had been extremely well argued on both sides and particularly on behalf of the defendant.
On the following day, 26th January, Judge Sich refused the defendant permission to appeal, but granted a stay of execution until 9th February or as this court might direct prior to that date. On 10th February Lord Justice Otton, on consideration of the documents, granted permission to appeal and extended the stay pending the determination of the appeal.
In this court Mr Buttimore, for the defendant, has dealt first with the allegation of a prior oral agreement and then with the validity of the section 20 notice. No point has been taken by Mr Brett in relation to delay. Moreover, Mr Brett recognises that the defendant is effectively appealing against the order for possession and, further, that if she is successful in establishing that the section 20 notice was defective, then the tenancy took effect as an assured tenancy, not an assured shorthold tenancy, the section 21 notice was ineffective and the order must be set aside. If, on the other hand, the defendant succeeds only on the oral agreement point, then it is agreed that a trial will be necessary. In those circumstances, Mr Buttimore has rightly regarded the notice point as being the more important of the two. I will therefore deal with it first.
Section 20 of the 1988 Act applies to assured shorthold tenancies created before the coming into force of the Housing Act 1996 on 28th February 1997. So far as material for present purposes, subsection (1) provides that an assured tenancy is an assured shorthold tenancy if three conditions are satisfied. The first two were satisfied here and need not be referred to. The third is:
"(c)a notice in respect of it is served as mentioned in subsection (2) below".
13. So far as material, subsection (2) provides:
"The notice referred to in subsection (1)(c) above is one which
(a)is in such form as may be prescribed;
(b)is served before the assured tenancy is entered into; �"
By regulation 2 of the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1988 (SI 1988 No. 2203):
"In these Regulations any reference to a section is to a section of the Housing Act 1988 and any reference to a numbered form is a reference to the form bearing that number in the Schedule to these Regulations, or to a form substantially to the same effect." [Emphasis added]
The form in the schedule appropriate to a notice under section 20 is No. 7. Immediately under the heading "Notice of an Assured Shorthold Tenancy"...
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