The City Council of Bristol v Desmond Charles Rawlins and and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORR,LORD JUSTICE GEOFFREY LANE |
| Judgment Date | 01 June 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0601-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 June 1977 |
[1977] EWCA Civ J0601-2
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(On appeal from judgment of His Honour Judge Main-Bristol County Court)
Revised
Lord Justice Orr
and
Lord Justice Geoffrey Lane
Mr. J. HAMPDEN INSKIP, Q.C. and Mr. DAVID FLETCHER (instructed by Messrs. Blyth Dutton Holloway, Agents for Mr. John A. Brown, City Clerk and Chief Executive, Bristol) appeared on behalf of the Appellants (Plaintiffs)
Mr. QUENTIN EDWARDS, Q.C. and Mr. JOHN BULL (instructed by Messrs. Bevan, Hancock & Co., Bristol) appeared on behalf of the Respondents (Defendants)
I will ask Lord Justice Geoffrey Lane to deliver the first judgment.
This is an appeal from a judgment of His Honour Judge Main delivered on 24th March of this year in the Bristol County Court. He had been asked, but had refused, to rescind an order which had been made by Mr. Deputy Registrar Sykes on 24th February of this year. The issue which we have been asked to decide really turns, as Mr. Hampden Inskip on behalf of the plaintiffs explained, on whether the Corporation's procedure with regard to a part of their duties under the Housing Act is correct or not.
The facts of the case are exceedingly simple. The defendants, Mr. and Mrs. Rawlins, were tenants of a Council house in Bristol, The house was No, 17 Sandburrows Walk, Highridge, in Bristol. There is no doubt that they had (for reasons which are not material) become badly in arrears with their rent. As a result of that, it being a weekly tenancy, a notice to quit was served by the plaintiff Corporation on 8th July, 1975, to expire on August 11th of that year. No question arose but that that notice to quit was a perfectly valid and proper notice.
Particulars of claim were filed on 7th November, 1975. The plaintiffs, being a local authority, are not bound by the provisions of the Rent Acts, of course, and they are technically entitled to possession on expiry of the notice to quit. There was no defence filed.
On 5th December, 1975, the matter came before the Registrar, and he made an order which is to be found on page 12 of the bundle; "It is Adjudged that the Plaintiff do recover against the Defendant possession of the land mentioned in the particulars of claim…. that is to say, 17 Sandburrows Walk, Highridge, Bristol And it isOrdered that the Defendant do give the Plaintiff possession of the said land on the 2nd day of January 1976. And it is Ordered that the judgment he not enforced without leave of the court".
At that stage (as appears from the helpful schedule which has been put before us by Mr. Quentin Edwards, who appeared for the defendants) the total amount due by way of rent from the defendants to the plaintiffs was £130.80, of which the share payable by the Rawlinses was £85,80 and that payable by the Department of Health and Social Security was £45.
The Corporation at that stage, as is their practice and, if I may say so, very proper practice, entered into an informal agreement with the defendants whereby the defendants undertook to pay off those arrears of rent at the rate of £1.62 per week, that being calculated, so we are told, with the object that if the payments were kept up they would be discharged at the end of 12 months. It was because the Registrar was informed of that agreement that he made the order in the terms in which he did, namely, that the judgment was not to be enforced without leave of the court. Unhappily Mr. and Mrs. Rawlins (again for reasons which need not be explored in this Court) failed to keep their side of that bargain. Again looking at the schedule of arrears before us, it is apparent that, so far from the arrears being discharged at the end of 12 months, they had in fact increased, and that part payable by the Rawlinses had gone up from £85 to £105 odd. By the 9th February, 1977, the amount of arrears payable by the defendants was some £76. At that stage the plaintiff local authority determined to make an application to the Deputy Registrar for leave to issue a warrant for possession. The total arrears were then £109, of which, as I say, the defendants' share was £76.
On February 9th it so happened that there was some dispute about the mathematics of the rent arrears, and the matter wasadjourned to February 24th, when it came before Mr. Deputy Registrar Sykes. At that stage, no doubt under the stimulus of these impending proceedings, the Rawlinses had made strenuous efforts to discharge at least some of the arrears which they found themselves owing, and on 24th February, 1977, some £20 had been knocked off the arrears, which then stood at £56. The Deputy Registrar on that occasion made an order, a copy of which appears at page 9 of the bundle, as follows: "Upon hearing the solicitor for the Plaintiff and both Defendants in person It is Ordered that no warrant is to be issued provided that the current rent plus £4 per week is paid off the arrears of £56.20. It is further Ordered that there be No Further Orders". That rather cryptic last sentence, we are told, means, probably, that no further extensions would be granted to the defendants by way of indulgence.
It was against that order that the Corporation appealed to the learned County Court judge. That appeal was heard on March 24th of this year; and the learned judge dismissed the appeal. It is, in effect, against the order of Mr. Deputy Registrar Sykes that the Corporation appeal to this Court today.
In brief, what Mr. Hampden Inskip says on behalf of the appellant Corporation is that at that time, in those circumstances on 24th March, 1977, the learned Deputy Registrar could not properly exercise his discretion so as to extend the time any further during which possession would be withheld.
The learned County Court judge in his judgment, an agreed copy of which is before us, delivered himself of two matters to which it is necessary at this stage to make reference. First of all, at page 4: "In my view the form of order made in this case on 5th December, 1975" -that was, of course, the original order - "is appropriate in a council house case; and in my judgment such an order is intended to and does give to the court a discretion toensure that where the real ground for obtaining possession is a failure to pay rent the defendant is not to be turned out of his home if he can and does pay his current rent and can and does repay arrears at a satisfactory rate. It seems to me that there is no point in the court retaining a power to refuse a warrant if in fact it is bound to issue it if asked". Then at page 5 there is another passage, as follows: "I am inclined to the view that it would have been better if the learned Deputy Registrar had simply refused leave to enforce the order, or had adjourned the application to see if the arrears were paid off, instead of making the order which he did make, but I am not disposed to interfere solely on that ground. If I did interfere it would be to refuse leave". "To summarise" (he goes on) "I am of the opinion that while the judgment giving possession remains in the form of the order of 5th December, 1975, the court has a discretion to grant or refuse, a warrant for possession, and that the order of 24th February, 1977, was a permissible exercise of that discretion". In the final sentence he says this: "I will say no more than that in my judgment it is thoroughly unsatisfactory that a council house tenant should be allowed to remain in possession for over a year after a judgment paying his current rent but liable to be dispossessed merely on application for a warrant should he fall behind at any time".
The practice of the Corporation of Bristol is, we are told, this. If an arrangement is made as was made here on 5th December, 1975, and if that arrangement is honoured by the tenant, the tenant remains in possession and the Corporation does not make any application for a warrant for possession. It is, no doubt, a matter of some considerable doubt as to what precisely in law the occupant's situation is. That, happily, is not something that we have to explore on this occasion. But if the tenant does not honour the arrangement, the local authority does apply for a warrant forpossession, which they would normally expect to he granted as a matter of course. This method is used effectively by the local authority to obtain arrears from defaulting tenants and is no doubt a perfectly proper method which operates to the advantage of the local authority, to the advantage of the local authority's tenant, and to the advantage of the ratepayers in this area. If the judgment of the County Court judge in this case is upheld (urges Mr. Hampden Inskip) it will mean that the power of the local authority to organise their affairs effectively in this area may be substantially diminished. He points out to us the various powers which are contained in the County Courts Act and the Orders made under that Act, to which it is not necessary for me to refer in full save simply to give the numbers of the Orders to which he made reference. They are: Order 24 Rule 11, at page 512 of the Green Book; Order 25 Rules 71 and 72, at pages 557 and 558; Order 13 Rule 5 (1) and (2), at page 406; and Order 25 Rule 8, at page 527. But the important matter is to determine the...
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