Wandsworth London Borough Council v Winder

JurisdictionEngland & Wales
JudgeLORD JUSTICE ACKNER,LORD JUSTICE ROBERT GOFF,LORD JUSTICE PARKER
Judgment Date29 March 1984
Judgment citation (vLex)[1984] EWCA Civ J0329-4
Docket Number84/0136
CourtCourt of Appeal (Civil Division)
Date29 March 1984
The Mayor and Burgesses of The London
Borough of Wandsworth
and
Paul Winder

[1984] EWCA Civ J0329-4

Before:

Lord Justice Ackner

Lord Justice Robert Goff

Lord Justice Parker (not present)

84/0136

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE WANDSWORTH COUNTY COURT

Royal Courts of Justice

MR JOHN BOWYER, instructed by the Wandsworth Legal Resource Project, appeared for the Appellant (Defendant).

MR G.C. STEPHENSON, instructed by S.G. Smith Esq. (Wandsworth), appeared for the Respondents (Plaintiffs).

LORD JUSTICE ACKNER
1

Lord Justice Parker is unable to be present. I shall be reading his judgment in due course.

2

Some years ago (we do not know the precise date and it is of no consequence) the London Borough of Wandsworth (Wandsworth), the respondents to this appeal, let one of their council flats, videlicet 25 Wheatley House, Tangley Grove, SW15, on a weekly tenancy to Mr Winder, the appellant. The rent as at 1980 was £12.06 per week, although whether this was the original rent we again do not know. The figures may indicate this to be unlikely. This tenancy was granted by Wandsworth pursuant to their powers to provide housing accommodation under Part V of the Housing Act 1957. It is provided by section 113(1A) that a local authority shall from time to time review rents and make such changes, either of rents generally or of particular rents, as circumstances may require. In pursuance of this statutory obligation, Wandsworth in 1981 resolved to increase the rents of the accommodation which they provided, and on 2nd March 1981 served Mr Winder with a notice of increase of rent purporting to increase his rent to £16.56 with effect from 6th April 1981. Mr Winder objected to that increase because he considered it excessive and continued to pay the original rent. Arrears accumulated, but no action was taken for the time being by Wandsworth, although correspondence did pass.

3

The following year there was a further resolution by wandsworth and a further notice of increase of rent, dated 1st March 1982, was served on Mr Winder purporting to increase his rent to £18.53 as from 5th April 1982. Again he refused to pay the increase. A notice seeking possession was eventually served on him on 21st May 1982, followed by a claim in the Wandsworth County court filed on 16th August 1982 claiming possession. Mr Winder being a secure tenant, the claim was made under Ground 1 of Schedule 4 of the Housing Act 1980, namely, that Mr Winder had failed to pay the rent lawfully due. The arrears claimed amounted to nearly £700.

4

Initially no defence was filed and the claim came on for hearing before His Honour Judge Coplestone-Boughey on 20th October 1982. Mr Winder was then represented and an adjournment was sought in order that he might contend "that the rent exceeds the limit in the Housing Finance Act". Mr Winder had brought to court the money which was alleged to be owing to Wandsworth. The adjournment sought was granted, conditional upon payment of the monies into court, and directions were given as to the filing of a defence. The defence, together with a counterclaim for a declaration, was filed on 11th January 1983. We are concerned, as was the learned registrar and county court judge, with paragraphs 5 and 6 of the defence, since, although the figures are challenged, that issue is essentially one of mathematics and well capable of being resolved by the parties.

5

6

The precise nature of the defence is of first importance, and I accordingly quote paragraphs 5 and 6:

7

"5. By a Notice of Increase of Rent dated the 2nd March 1981 the Plaintiffs purported to increase the weekly net rent payable to them by the Defendant in respect of his said dwelling house from £12.06 to £16.56 with effect from the 6th April 1981. By a further Notice of Increase of Rent dated 1st March 1982 the Plaintiffs purported further to increase the said rent from £16.56 to £18.53 with effect from the 5th April 1982.

8

"6. The Plaintiffs' decision to make each of the said increases was ultra vires and void and each of the said Notices was likewise ultra vires and void in that in breach of Section 111 of the Housing Act 1957 the resulting rents were not reasonable charges for the Defendant's tenancy or for his occupation of the said dwelling house and the Plaintiffs in exercising their discretion to determine the amount of the said rent failed lawfully to exercise the same so as to arrive at a charge which was reasonable.

9

PARTICULARS OF BREACH OF SECTION 111 AND FAILURE

10

LAWFULLY TO EXERCISE DISCRETION

11

"(i) As to each of the said increases the Plaintiffs failed in considering how the financial burden of the provision of council housing should be distributed between its ratepayers and its tenants to take into account (alternatively to take sufficient account of) the relative means of their ratepayers as a group and their tenants as a group.

12

"(ii) As to the first Notice effective from 6th April 1981 the £4.50 increase and the decision to make that increase such increase was a substantially higher increase than the said rent from the said date than a private landlord could have then made in respect of a regulated tenancy of the said dwelling house by a Notice given on or about the 2nd March 1981 in that it effected an increase to a rent higher than a Rent Officer would have registered as the fair rent and or an increase which would have had to have been phased under the provisions of Section 55 and Schedule 8 of the Rent Act 1977 as amended. The amount and pace of the increase were thus in excess of what Parliament considered appropriate for such premises.

13

"(iii) As to the second notice and the decision to make the increase it purports to make, they were misconceived because they were based upon the purported earlier increase by the first Notice which was itself for the reasons set out above ultra vires and void."

14

Mr Winder added a counterclaiin in which he repeated his defence and claimed a declaration that the notices of increase of rent were ultra vires and void and of no effect.

15

16

When Wandsworth received the defence and counterclaim they applied to have them struck out on the grounds that they were an abuse of the process of the court. In making this application they relied essentially on the recent decision of the House of Lords in the case of O'Reilly v. Mackman (1983) 2 A.C., 237. It is convenient at this stage to quote a short passage from the speech of Lord Diplock, who gave the only speech and which was concurred in by all the other members of the judicial committee: "Now that those disadvantages to applicants have been removed and all remedies for infringements of rights protected by public law can he obtained upon an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities."

17

The counter-submission made by Mr Bowyer on behalf of Mr Winder, was that the O'Reilly decision only dealt with the initiation of proceedings and the rule of public policy which it declared does not apply to a defendant wishing to raise a defence involving a matter of public law. The learned registrar accepted Mr Bower's submission, but the learned county court judge, His Honour Judge White, held that there was no distinction to be drawn between the raising of an issue of public law by way of a claim or by way of a defence, and accordingly there was no significance in the fact that the O'Reilly case was concerned with the commencement rather than the defence of proceedings. He therefore rejected Mr Bowyer's submission; hence this appeal.

18

19

Mr Winder's contract of tenancy clearly gave him certain private law rights against Wandsworth. Mr Bowyer submits that by his defence he is setting up private law rights. I do not agree. He is not contending that Wandsworth are limited to charging him the original contractual rent. He is not claiming that they have no power to increase that rent. On the contrary, he accepts that Wandsworth have the statutory right to increase his rent. His client's complaint is that Wandsworth have exceeded their statutory powers in resolving to increase his rent by so great a sum. It is the quantum of the increase to which he objects and not the right and obligation to make an increase. Although the defence alleges a breach of section 111, the true basis of the defence is that circumstances did not reasonably require the rent to be increased to the extent to which Wandsworth resolved. (See section 113(1A)). This is the only foundation of Mr Winder's contention that the notices of increase of rent were ultra vires and therefore void and of no effect. This is Mr Winder's answer, both to the claim for the arrears of rent and to the claim for possession. He has put forward no other defence. Of course the judge has a residual discretion as to whether or not to make an order for possession, given that Wandsworth establish that Mr Winder has failed to pay rent lawfully due. (See section 34(3) (a)). No point has been raised as to this. Mr Winder is accordingly not setting up any private law right. The reference in paragraph 1 of the defence to his tenancy is an introductory averment which gives rise to no issue or contest in this case. He is attacking the two...

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