England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE.
COURT OF APPEAL.
Appeal by defendant from order of
His Honour Judge Eric Stockdale
on 19th June 1974 at Barnet County Court.

		Royal Courts of Justice.
		30th April 1975.

Revised.

THE MASTER OF THE ROLLS: In 1968 Mr. Eric Tanner was a milkman during the day and a croupier at night. He mad been married for many years He had a daughter then aged 19 and a son aged 12. They lived together at 26 Achilles Road in West Hampstead. But, to use his own words, he got disgusted with his marriage and went out and had a good time. He went out with three women, he said, "simultaneously" meaning separately but during the same weeks or months. One of these women was an attractive Irish girl, Miss Josephine MacDermott. She was a cook in a nursing home. She had a flat in 33 Steels Road, Hampstead, on the third floor. He visited her frequently. She became pregnant by him. She took his name and became known as Mrs. Tanner; but to avoid confusion, I will call her Miss Josephine Joan MacDermott. In November 1969 she gave birth to twin daughters. They decided it was best to get a house for her and the twin babies. They found one at 4 Theobalds Avenue, in North Finchley. He borrowed a sum on mortgage with a local authority. In applying for it, he filled in a form. He said that he was 45. His wife was 41. He had a son aged 14, a daughter aged 20 and two twin daughters of 6 months. That was a very misleading application, because he was not getting it for his wife and his older children. He wanted it for Miss MacDermott (who was now Mrs. Tanner) and the twin babies By means of that misrepresentation he got the house on mortgage. It was in his own name. Miss MacDermott and the baby twins moved in there. She brought a good deal of her furniture and spent £150 on furnishings for it. She moved into the ground floor. They let the first floor. She managed the lettings and collected the rent. Previously, whilst she was in her flat in Steels Road, Hampstead, he had paid her £5 a week maintenance for the two twins. But after she moved into Theobalds Row, he paid her nothing for them or for her. She got a supplementary allowance under social security from the local authority. She got an increased amount from them for rent: because she told them she was paying him £3 a week for rent.

Now all this time, unknown to her, Mr. Tanner was associating with another woman - a married one - Mrs. Metcalfe, who had a house in Willesden. Eventually Miss MacDermott got to know about it; and he did not visit her very often at Theobalds Avenue. By 1971 the time came when she was suggesting that the house should be sold. In one letter to him she said:

"Its not fair on the twins; they deserve a much better deal from life than this. Its best you sell this house and let me and them have the cash to start a new life in some country."

In another letter she said:

"Sold furnished it should fetch around £6400 for it as things are at the moment. I don't know how much the mortgage people will want from you, then, take out of it any money you have spent on mortgaging it and on rates, electric etc. Then what's over I will have for the twins and for the loss of my Hampstead flat."

He did not reply to those letters. But he talked to her and said he wanted her to get out of the house. He offered her £4,000. Her evidence was:

"He offered me £4,000 for something else. I refused as the house was supposed to be ours until the children left school."

His evidence was:

"I offered £4000 to the defendant when I was still single in June 1973- I offered it for a bungalow in the country. But she said this was her house and she would not leave."

So she stayed there.

By this time he had got a divorce from his first wife. He married Mrs. Metcalfe - the lady in Willesden - and moved into her house at Willesden. She too became pregnant. He found himself in financial difficulty. So much that he determined to get Miss MacDermott with the twins out of the house in Theobalds Avenue and to move in there himself, if he could. On 16th July 1973 his solicitor wrote to Miss MacDermott:.

"We act for Mr. E.B. Tanner and we understand that you have, together with your two daughters, been occupying part of the above property which belongs to him for some time past under licence. We are instructed to inform you that Mr. Tanner revokes the licence forthwith and to ask you please to let us know the date you will be vacating with your children. We are instructed further to tell you that as from the date you vacate our client will pay you the sum of £6 per week for the keep of the two children Valerie and Gloria until they attain the age of 16 years. Mr. Tanner feels that he has been more than generous to you in the past and hopes that you will be able to vacate within the next three or four weeks."

She did not vacate, and he brought proceedings in the County Court to turn her out. She put in a cross claim saying she was entitled to a share in the house, and that she ought not to be turned out."

In the County Court Counsel for Miss MacDermott submitted that she was in the house under a licence which he was estopped from terminating: and that he could not transfer the house while the children were of school age. For this he relied on Combe v. Combe 1951 K.B. 215 at page 220. Alternatively Counsel submitted that a trust could be inferred whereby she obtained a beneficial interest in the property for herself and children. For this he relied on Gissing v. Gissing 1971 A.C. at page 905-6; and Cooke v. Head 19?2 1 W.L.R. 518 at page 520.

The Judge rejected these contentions. He found that this man never intended to marry the lady: and made it clear to her that marriage was out of the question. She was quite aware of this. The Judge said that she made the move to Theobalds Road because she thought it best for herself and the twins, not on the basis of future security. The Judge found that she had no right to stay in the house. He said:

"Had there been discussion about a home until re-marriage, or money handed over, things might have been different. Although one's sympathies are with the defendant, it would be wrong to stretch the authorities improperly to find estoppel or trust .... Even though the defendant is the cause of the problems, he is not to be punished; he is entitled to ask the Court to protect his rights. Accordingly the plaintiff is entitled to an order for possession."

He made an order for possession in six weeks and rejected the counterclaim.

The case is different from Cooke v. Head and a case we had earlier this week, Eves v. Eves. In those cases the man and his mistress obtained the house in contemplation of marriage. Here they did not. Nevertheless it seems to me plain on the evidence that the house was acquired in the contemplation and expectation that it would provide a home for the lady and the twin daughters. The babies were only 8 months old at the time. She gave up her flat in Steels Road (where she was protected by the Rent Acts) to move into this house. It was obviously provided for her as a house for herself and the twins for the foreseeable future.

It is said that they were only licensees - bare licensees -under a licence revokable at will: and that he was entitled in law to turn her and the twins out on a moment's notice. I cannot believe that this is the law. This man had a moral duty to provide for the babies of whom he was the father. I would go further. I think he had a legal duty towards them. Not only towards the babies. But also towards their mother. She was looking after them and bringing them up. In order to fulfil his duty towards the babies, he was under a duty to provide for the mother too. She had given up her flat where she was protected by the Rent Acts - at least in regard to rent and it may be in regard also to security of tenure. She had given it up at his instance so as to be able the better to bring up the children. It is impossible to suppose that in that situation she and the babies were bare licensees whom he could turn out at a moment's notice. He recognised this when he offered to pay her £4000 to get her out. What was then their legal position? She herself said in evidence:

"The house was supposed to be ours until the children left school."

It seems to me that enables an inference to be drawn, namely, that in all the circumstances it is to be implied that she had a licence - a contractual licence - to have accommodation in the house for herself and the children so long as they were of school age and the accommodation was reasonably required for her and the children. There was, it is true, no express contract to that effect, but the circumstances are such that the Court should imply a contract by him - or, if need be, impose the equivalent of a contract by him - whereby they were entitled to have the use of the house as their home until the girls had finished school. It may be that if circumstances changed - so that the accommodation was not reasonably required - the licence might be determinable. But it was not determinable in the circumstances in which he sought to determine it, namely, to turn her out with the children and to bring in his new wife with her family. It was a contractual licence of the kind which is specifically enforceable on her behalf: and which he can be restrained from breaking; and he could not sell the house over her head so as to get her out in that way. That appears from Binians v. Evans 1972 Ch. at pages 367-8.

If therefore the lady had sought an injunction restraining him from determining the licence, it should have been granted. The order for possession ought not to have been made.

It was said that this point (of an implied contract) was not pleaded. But to my mind it arose on the claim itself. The plaintiff pleaded a licence which had been determined. So the question was, what was the licence and what were the terms of it?

Points about estoppel were raised too. Those are all ways of stating the legal effect of the facts. The facts were sufficiently pleaded, it seems to me, for the Court to deal with it on the basis of an implied contract.

But what is to be done? The Judge ordered possession in six weeks. Thereupon the local housing authority (as they usually do when an order for possession is made) provided accommodation for the lady and the children. She moved out in pursuance of the order and does not ask to be put back now. Seeing that the order ought not to have been made and we reverse it, what is to be done? It seems to me that this Court has ample power, when it reverses an order of the Court below, to do what is just and equitable to restore the position as fairly as it can in the circumstances. The plaintiff has obtained an unjust benefit and should make restitution. In the circumstances the Court can and should assess compensation to be payable by him. He has not been paying any maintenance for these children for years - ever since she went into the house. It seems to me a reasonable sum for loss of this licence (which she ought not to have lost) would be £2,000. So I would allow the appeal and say that the order for possession shall be set aside, and as compensation to her for being wrongly turned out, the sum of £2,000 to be payable by Mr. Tanner. I would allow the appeal accordingly.

LORD JUSTICE BROWNE: I agree that the appeal should be allowed and that the order proposed by my Lord should be made. I agree that this is not a case like Cooke v. Head or Eves v. Eves where the defendant has any sort of proprietary interest in the property. But I agree that there was here a licence by the plaintiff to the defendant for good consideration: it could not be revoked at will. What has troubled me is what the duration of this licence was to be. With some hesitation I agree with my Lord's view of what it was to be; that is, in substance it was a licence to the defendant to occupy accommodation in the house so long as the children were of school age and such accommodation was reasonably required for her and the twins, subject to any relevant change of circumstances, such as her re-marriage. I agree that the order made by the Judge on the application of the respondent involved a breach of that licence and that this Court is entitled to compensate the defendant for the plaintiff's breach of contract in revoking the licence on the lines indicated by my Lord.

LORD JUSTICE BRIGHTMAN: I also agree.

On the evidence the County Court Judge was entitled to find that there was no express agreement between the parties that the appellant was to have any proprietary interest in the house, and that she had made no contribution in cash or kind from which such an agreement could be inferred. The case before us has nothing in common with Eves v. Eves which we decided two day's ago. In the latter case the learned Vice Chancellor found that there was an understanding between the parties that the lady should have a beneficial interest in the house, and that she was tricked out of having her name on the title deeds. On the faith of that understanding, she had done far more towards the rehabilitation of the house than would be expected of a wife or a mistress. It was quite different from the present case. Here the lady was provided with accommodation for herself and the twins. That fact is not enough to give her any proprietary interest in such accommodation. I see no reason to interfere with that part of the decision of the County Court Judge.

The appellant in the present case was clearly a licensee of accommodation in the house with a right to occupy it for herself and the twins so long as the licence was not lawfully terminated. The question then arises whether the respondent was entitled to revoke the licence at short notice. If the licence had been granted without any consideration at all, then it could have been revoked at short notice. In my opinion there was consideration. I think that the proper inference to be drawn from the facts is that the appellant was granted a licence on the terms that she would give up her rent controlled flat in Steeles Road and look after the twins at 4 Theobalds Avenue. The licence which is to be inferred on the particular facts of this case was , in my opinion, as my Lord has said, a licence to occupy accommodation in the house so long as the twins should be of school age and such accommodation should reasonably be required for the appellant and her children. In those circumstances, had this case been so pleaded, the County Court Judge ought not to have made an order for possession against her. He should have granted the appellant, had she counterclaimed, an injunction to restrain the respondent from revoking the licence.

I do not think we ought to be strictly bound by the form of the pleadings in the County Court. All the relevant evidence was brought out on the pleadings as they stood. It is not now practicable to grant an injunction against the termination of the licence, or specifically to enforce it. A proper remedy which is within the jurisdiction of this Court under Order 59 r. 10 of the Rules of the Supreme Court, is to grant such damages (I quote from the speech of Lord Sumner in Leeds Industrial Co-operative Society, Ltd. v. Slack 1924 A.C. 851 — "are designed to be a preferable equivalent for an injunction and therefore an adequate substitute for it". That sum, I think, should be quantified as an amount which the appellant might reasonably have requested, and which the respondent might reasonably have been expected to pay, for a surrender of that licence. I agree with my Lord that a proper sum is £2,000 and I think the appeal should be allowed on that basis.

Appeal allowed with costs in the Court of Appeal, not to be enforced except upon further application. Legal aid taxation of both parties' costs. Leave to appeal to the House of Lords and stay of execution refused.