England and Wales Court of Appeal (Civil Division) Decisions

Court of Appeal

		26 May 1989

1. Giving the judgment of the court, SLADE LJ said: This is an appeal by Mr Gerard Brady from an order for possession made on November 26 1987 by His Honour Judge Honig in the Clerkenwell County Court relating to the second-floor flat at 179 Southgate Road, London N1. The order was made in favour of Mikeover Ltd, who are the plaintiffs in the action and the respondents to this appeal.
2. The building, 179 Southgate Road, is divided into a ground, first and second floor. The proceedings concern only the second floor, which is the top floor. The building is owned by the plaintiffs. In 1984 Mr Jack Ferster, a director of the plaintiffs, advertised the top-floor flat in the Evening Standard as a flat for two people to share.
3. In June 1984, the defendant, Mr Brady, together with a Miss Guile, in response to the advertisement, came to see Mr Ferster at the flat. Having seen it, they expressed an interest in taking up occupation of it, and an arrangement was made by Mr Ferster for the taking up of references. He was satisfied that the occupation by the two of them would be in the interests of the plaintiffs.
4. A day or two later the defendant and Miss Guile returned to the flat and Mr Ferster placed before them two agreements in identical terms, one for each of them to sign. Each of them signed an agreement in the form put before them. That form in the case of the defendant was as follows:

THIS AGREEMENT is made the 6th day of June 1984 BETWEEN Mikeover Ltd (hereinafter called 'the Owner') of the one part and Gerard Brady (hereinafter called 'the Licensee' of the other part.

WHEREBY IT IS AGREED as follows:--

1. The Owner grants to the licensee the right to use in common with others who have been granted the like right the rooms on the second floor forming part of the flat premises known as 179 Southgate Rd TOGETHER with the fixtures furniture furnishings and effects now in the said rooms for six months from the 6th June 1984

2. THE Licensee agrees with the Owner as follows:--

(1) To pay the sum of £ 86.66 per month for the right to share in the use of the said rooms such sum to be payable by equal monthly instalments in advance on the First day of each month, the first of such payments to be made on the signing of this agreement.

(2) Not to damage or cause any damage to the walls or floors of the said rooms or the said flat or any other part thereof and to preserve the fixtures furniture furnishings and effects from being destroyed or damaged in any way and to replace all broken glass.

. . .

(4) Not to impede the use of the said rooms or any of them nor, upon terms that each shares the cost of the gas, electricity and telephone services, to impede the use of any services supplied to the said rooms or any of them, by such other persons not exceeding one in number to whom the Owner shall grant Licence.

(5) Not to assign this Agreement nor permit any other person, except as licenced by the Owner, to sleep or reside in or share occupation of the said rooms or any of them at any time.

(6) Not to do or suffer to be done in or upon the said rooms or the said flat any act or thing which may be a nuisance damage or annoyance to the Owner or to the tenants or occupiers of other parts of the building of which the flat forms part or to the occupiers of any adjoining property or which may vitiate any insurance on the flat against fire or otherwise or increase the ordinary premium thereon.

3. PROVIDED as follows:--

(1) If the said sum or any part thereof shall be in arrear or unpaid for at least fourteen days after the same shall have become due or

(2) in the event of any breach by the Licensee of the Agreements herein contained then the Owner may terminate this Agreement and the Licensee's rights hereunder shall absolutely determine but without prejudice to any other remedies of the Owner hereunder.

4. The Owner agrees with the Licensee to pay all general and water rates payable in respect of the flat but not any charges for the supply of gas or electric current or for the use of the telephone.

5. The Licensee shall pay the sum of £ 40 which shall be retained by the Owner until the termination of this Agreement as a deposit to secure to the Owner the performance by the Licensee of the agreements on the part of the Licensee herein contained but without prejudice to the Owner's rights under and in respect of this Agreement. At the termination of this Agreement and on the Licensee vacating the said rooms and subject to the proper performance by the Licensee of his obligations herein contained the Owner will refund the said deposit to the licensee.

AS WITNESS the hands of the parties hereto the day and year first before written.

5. The agreement was in each case signed by 'the Licensee' and by Mr Ferster on behalf of the plaintiffs. As is clear on the face of the agreements, a standard typescript form was employed with appropriate manuscript additions and one deletion, namely of clause 2(3), which would have imposed on 'the Licensee' an obligation on termination of the licence to pay to the owner a sum equal to the cost of washing and cleaning 'all linen counterpanes, blankets and curtains soiled . . . during the period of the Licence'. With the exception of this deletion and with one other possible significant exception, which we shall mention later, this standard form was the same as that which was considered by this court in Aldrington Garages Ltd v Fielder (1978) 37 P & CR 461.*
6. After signing the agreements, each of Mr Brady and Miss Guile was given a key for the front door of the house. It is common ground that at this meeting on June 6 the question of their sharing the flat with any other person was not discussed, nor was there any discussion as to what would happen if either of them left before the six-month period provided for by the agreements expired. Each of them paid a £ 40 deposit and also made an advance payment in respect of the period June 6-30 1984. The original six-month period expired on December 6 1984, but it is common ground that thereafter, by arrangement with Mr Ferster, the defendant and Miss Guile were allowed to continue in the flat on a monthly basis but otherwise on the same terms and conditions as before.
7. Sometime in early 1986 Miss Guile moved out of the flat. The defendant's evidence was that she moved out in January 1986, but it is now common ground that the plaintiffs did not know of this until April 1986. Mr Ferster's evidence was that about a week before April 26 1986 Miss Guile telephoned him and said that she wanted to leave and asked him for the return of her deposit and that he told her that he needed to meet her to get her key back. On April 26 1986 she wrote to him saying:

I am writing to terminate our original contract. Due to personal circumstances I have had to leave.

Sorry about any inconvenience caused. I enclose the keys as agreed, and would be grateful if you would send my deposit money to the above address.

8. After that letter Mr Ferster returned to her the deposit of £ 40 which she had originally paid. There was no evidence as to any consultation with the defendant about the return of her deposit. He himself remained in the flat.
9. At about the same time the defendant offered to pay monthly sums of £ 173.32 (representing twice £ 86.66) but, as the judge found, Mr Ferster refused this offer, saying:

I can't accept it. I'll hold you responsible for your share only.

The defendant made a number of payments of £ 173.32 to the plaintiffs by cheque (in June, August and September 1986) and several other payments, including four or five payments of £ 50 (though the August and September cheques were not cashed until February 1987). However, the judge found that the receipts by the plaintiffs represented no more than was due from the defendant on the footing that he was liable only for monthly payments of £ 86.66. We see no sufficient grounds for disturbing this finding.

10. Eventually, even on that footing, the defendant fell into arrears with his payments. By a letter of February 17 1987, the plaintiffs purported to determine what they described as his licence with effect from March 31 1987. On May 27 1987 they issued proceedings seeking possession of the flat.
11. In the court below and in this court it has been common ground that

(a)   if the defendant's rights were those of a licensee only, his licence was properly determined and the plaintiffs are entitled to possession;

(b)  if the defendant's rights were those of a tenant, in view of the decision of this court in Lloyd v Sadler [1978] QB 774, he is entitled to the protection of the Rent Acts and the plaintiffs are not entitled to possession (though Mr Primost, on behalf of the plaintiffs, has told us that he reserves the right to challenge the correctness of that decision in a higher court).

12. The learned judge concluded that the defendant had no more than a licence which had been properly determined, and accordingly made an order for possession, from which the defendant now appeals.
13. The defence included an unparticularised allegation that the agreement 'was a sham and was not intended by the parties to form the basis of legal relations between them'. Understandably, in the face of this pleading, the learned judge regarded it as his first task to examine and deal with the evidence as to whether the agreement was a sham; he then proceeded to express his views as to its construction. However, we prefer to approach the issues in the reverse order and to begin by attempting to discover what the wording of the agreement means.
14. We look first at the circumstances which constituted the background to the agreements (the 'matrix' of the transaction). At all material times, as the judge found, the flat comprised a front room which had a cooker and refrigerator in it, and a back room which had a sink in it. In addition, there were a bathroom and lavatory in the attic. This accommodation and these facilities were to be available to the people who were to occupy the top-floor flat. While the defendant's evidence was that there were two divans in the front room when he first came to the flat, Mr Ferster's evidence was that each of the two main rooms had a single divan in it. Though the judge made no finding on this latter point, and made no finding that Mr Ferster was aware of any intention there may have been on the part of the defendant and Miss Guile to live together in a quasi-matrimonial relationship, the layout of the flat was such that it was clearly suitable for occupation only by persons who were personally acceptable to one another. In this context Mr Andrew Nicol, on behalf of the defendant, naturally laid some stress on the position of the sink in one room and the cooker in the other. And, indeed, the plaintiffs clearly wished and contemplated that it would be occupied by two friends because they had advertised it as a flat for two people to share.
15. Furthermore, an important feature of the matrix to the defendant's agreement was the contemporaneous execution of an agreement with Miss Guile in identical form. Whether or not it is correct to classify these two agreements as 'interdependent', as Mr Nicol described them in argument, it is, in our judgment, quite plain that one must construe the provisions of the defendant's agreement having full regard to the fact that Miss Guile had just executed or was about to execute an agreement in identical form (and vice versa).
16. The provisions of the defendant's agreement which give rise to questions of construction are clauses 1 and 2(4). These two clauses, taken from a standard precedent, may be easier to reconcile and operate in a case where the relevant premises are large enough to accommodate several occupiers, to some of whom 'the Owner' has already granted a right of common occupation before the agreement is executed and to others of whom he may grant such right in the future after the agreement is executed. However, it is less easy to give effect to them in a case such as the present where it is quite obvious both from the terms of the agreement, the nature of the premises and the other surrounding circumstances that none of the parties concerned contemplated that either of the proposed 'Licensees' would be obliged by the 'Owner' to share the occupation of the flat with more than one other person during the currency of either agreement.
17. On the face of clause 1 of the agreements in the present case, though the right to use the rooms given to each 'Licensee' is merely a right to use them in common with others 'who have been granted the like right' (ie Miss Guile in the case of the defendant's agreement and the defendant in the case of her agreement), their right is not qualified by any obligation to share such use with any others who may be granted such right in the future. Inclusio unius exclusio alterius.
18. Mr Primost, however, submitted that there must be implied from the wording of the agreement, when read as a whole, a power in 'the Owner' immediately to introduce one new occupant into the flat should either of the defendant or Miss Guile leave during the course of the original six-month term or any succeeding monthly term. He submitted in effect that such a power could be implied

(a)   by reading the phrase 'in common with others who have been granted the like right 'in clause 1 as meaning' in common with others who have or may from time to time be granted the like right', and

(b)  by reading the phrase 'by such other persons not exceeding one in number to whom the Owner shall grant licence' in clause 2(4) as meaning 'by such other persons not exceeding one in number to whom the Owner shall from time to time grant licence in substitution for [Miss Guile or Mr Brady, as the case might be]'.

He sought to pray in aid clause 2(5) of the agreement in support of this submission, though we think it carries the matter no further.

19. The submission summarised in (a) and (b) above is very similar to that referred to in the report of Aldrington Garages Ltd v Fielder (supra) (at p 467) as having been rejected by the county court judge. This court in that case found it unnecessary to express any view on that submission as to construction. In our view, however, the submission would have had greater force in that case because there the two agreements in question, though otherwise in more or less the same form as those in the present case (save that the original term was 12 months rather than six months), contained a significant addition, that is to say a manuscript clause 6 providing:

The licensee may terminate this agreement and vacate the flat at any time on seven days prior notice: (see p 464).

20. In Aldrington, therefore, the owner was on the face of the agreements exposed to the risk that, during the 12-month term, one of the two intending occupiers might choose to vacate the flat on seven days' notice and leave him correspondingly out of pocket for the rest of that term, unless he had the right to put someone else into the premises in her place. In the present case, the plaintiffs were exposed to no such risk. If either the defendant or Miss Guile were to choose to vacate the premises during the currency of his or her agreement, the plaintiffs could still look to him or her for payment of the monthly sum which he or she had contracted to pay. Thus, as a commercial matter the need for the plaintiffs to be in a position to impose a substitute co-occupant on the defendant or Miss Guile, as the case might be, was far less acute than it was in Aldrington. For practical purposes it would have arisen only if one or other of them had defaulted and the plaintiffs had exercised their right of termination under clause 3.
21. Having carefully considered the agreements and heard the opposing arguments, we are unable to accept Mr Primost's construction of them. It seems to us there is no sufficient justification, either as a matter of business efficacy or under any other canons of construction, for making the extensive implications he invites us to make. The agreements have to be construed against the plaintiffs who proffered them. If they wished to reserve the right to impose on the defendant or Miss Guile a substitute co-occupant during the currency of the agreements, it was, in our judgment, incumbent on the plaintiffs to do so in much clearer terms.
22. It follows that, in our judgment, the defendant's agreement on its true construction conferred on him the right (by clause 1) to exclusive occupation of the flat in common only with Miss Guile during its currency. Clause 2(4) is to be read simply as imposing on him a corresponding obligation not to impede the use of the rooms etc by Miss Guile during the currency of the term. Thus it is not necessary or relevant to consider the alternative argument of the defendant's counsel to the effect that, in so far as the agreement purported to reserve to the plaintiffs the right to impose on the defendant a substitute co-occupier in place of Miss Guile, it was a 'sham'.
23. The possible relevance of a 'sham' will nevertheless have to be considered in another context mentioned below. 'Sham cases do envisage the incorporation of a clause by which neither party intends to be bound and which is obviously a smokescreen to cover the real intentions of both contracting parties' (Hadjiloucas v Crean [1988] 1 WLR 1006 at p 1013 per Purchas LJ).*
24. Both Purchas LJ in that case and Croom-Johnson LJ in the later case of Hilton v Plustitle Ltd [1989] 1 WLR 149 at p 153+ adopted as an accepted definition of a 'sham' the statement of Diplock LJ in Snook v London & West Riding Investments Ltd [1967] 2 QB 786 at p 802:

As regards the contention of the plaintiff that the transactions between himself, Auto Finance and the defendants were a 'sham' it is, I think, necessary to consider what, if any, legal concept is involved in the use of this popular and pejorative word. I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the 'sham' which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities (see Yorkshire Railway Wagon Co v Maclure (1882) 21 Ch D 309 and Stoneleigh Finance Ltd v Phillips [1965] 2 QB 357), that for acts or documents to be a 'sham', with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating.

25. Very recently, in Antoniades v Villiers [1988] 3 WLR 1205‡ the House of Lords had to consider a case where a landlord, by separate but identical agreements entered into contemporaneously, granted to a young man and his girlfriend, whom the landlord knew would be living as husband and wife, the right to occupy the top flat in his property. When the couple originally inspected the flat they were told that the rent would be £ 174 per month. However, under the form of the agreement proffered to them by the landlord, each was expressed to assume merely an individual, not a joint, responsibility for payment of one half of the sum of £ 174.
26. In this respect the case has similarities to the present case. Furthermore, the form of the agreement was in many respects very similar to that of the agreements in the present case; indeed it may perhaps have been based on the same precedent. However, there were some very significant differences in those forms in as much as (inter alia) they stated that the Rent Acts did not apply, that 'the licensor is not willing to grant . . . exclusive possession', and that the use of the rooms was 'in common with the licensor and such other licensees or invitees as [he] may permit from time to time to use the said rooms'. Most importantly, clause 16 provided that 'the licensor shall be entitled at any time to use the rooms together with the licensee and permit other persons to use all of the rooms together with the licensee . . .'.
27. In Antoniades v Villiers, therefore, unlike the present case, there was no doubt that the wording of the agreements purported to reserve to the landlord the right to share the accommodation with the couple, either himself or by introducing one or more persons to use the flat with them. If the provisions reserving this right had been seriously intended by the parties to have practical application, this would have eliminated any possibility of the couple being able to sustain a claim to be tenants, since their occupation would have lacked the feature of joint exclusive possession which would have been required for this purpose: see [1988] 3 WLR at pp 1221F and 1223E per Lord Oliver and at p 1225E per Lord Jauncey. However, the House of Lords on the facts of that case decided that the crucially important clause 16 was, in the words of Lord Templeman (at p 1216) a pretence. Lord Bridge (at p 1208) summarised the position thus:

Here the artificiality was in the pretence that two contemporaneous and identical agreements entered into by a man and a woman who were going to live together in a one-bedroom flat and share a double bed created rights and obligations which were several rather than joint. As to the nature of those rights and obligations, the provisions of the joint agreement purporting to retain the right in the respondent to share the occupation of the flat with the young couple himself or to introduce an indefinite number of third parties to do so could be seen, in all the relevant circumstances, to be repugnant to the true purpose of the agreement. No one could have supposed that those provisions were ever intended to be acted on. They were introduced into the agreement for no other purpose than as an attempt to disguise the true character of the agreement which it was hoped would deceive the court and prevent the appellants enjoying the protection of the Rent Acts. As your Lordships all agree, the attempt fails.

28. We have already given reasons for concluding that the agreements in the present case do not on their proper reading purport to reserve to the plaintiffs the right to impose a co-occupant on the defendant or Miss Guile during the term of either agreement. Nevertheless, their effect was to confer on the defendant and Miss Guile together, so long as Miss Guile remained, a right of joint exclusive occupation of the property. The decision in Street v Mountford [1985] AC 809 establishes that the enjoyment by one person of exclusive occupation of premises for a term in consideration of periodical payments creates a tenancy save in exceptional circumstances not relevant to this appeal: see Antoniades v Villiers (supra) at p 1212 per Lord Templeman. Similarly, as the last-mentioned decision illustrates, the enjoyment by more than one person of joint exclusive occupation of premises for the same term in consideration of periodical payments is capable of creating a joint tenancy.
29. It is, however, well settled that four unities must be present for the creation of a joint tenancy, namely the unities of possession, interest, title and time: see Megarry & Wade: The Law of Real Property, 5th ed, 1984, pp 419 et seq. In the present case there is no dispute that the two agreements of June 6 1984 operated to confer on the defendant and Miss Guile unity of possession and title. Likewise, there was unity of time in that each of their interests arose simultaneously and was expressed to endure for six months. The dispute concerns unity of interest. The general principle, as stated in Megarry & Wade at p 420, is that:

the interest of each joint tenant is the same in extent, nature and duration, for in theory of law they hold but one estate.

'Interest' in this context must, in our judgment, include the bundle of rights and obligations representing that interest. The difficulty, from the defendant's point of view, is that the two agreements instead of imposing a joint liability on him and Miss Guile to pay a deposit of £ 80 and monthly payments of £ 173.32, on their face, imposed on each of them individual and separate obligations to pay only a deposit of £ 40 and monthly payments of only £ 86.66. On the face of it, the absence of joint obligations of payment were inconsistent with the existence of a joint tenancy.

30. Mr Nicol, on behalf of the defendant, sought to meet this difficulty in three ways. First, he contended that the two agreements were, as he put it, 'interdependent' and must be read together. When so read, he submitted, they should be construed as placing upon the two parties joint obligations. However, it seems to us quite impossible to rewrite the two agreements in this manner as a matter of construction (compare Aldrington Garages Ltd v Fielder (supra) at p 471 per Geoffrey Lane LJ (as he then was)). One cannot add up two several obligations to pay £ X so as to construct a joint obligation to pay £ 2X.
31. Next Mr Nicol, as we understood him, contended that, in so far as the two agreements purported to render each of the defendant and Miss Guile merely individually liable for the payment of a deposit of £ 40 and monthly payments of £ 86.66, they were 'shams'. The true intention of the parties, he submitted, to be inferred from all the circumstances, was that they should be jointly liable to make monthly payments of £ 173.32 and to pay a deposit of £ 80 (to the return of which they should be jointly entitled in due course).
32. In this context, the subsequent conduct of the parties is admissible in evidence, not for the purpose of construing the agreements but on the question whether the documents were or were not genuine documents giving effect to the parties' true intentions: see Antoniades v Villiers (supra) at p 1221 per Lord Oliver.
33. However, the onus of proving a sham falls on the defendant and, in our judgment, the parties' subsequent conduct affords no support, or at least no sufficient support, to his case in this respect. While the judge appears to have taken the contrary view on this point, the fact that Miss Guile's deposit of £ 40 was repaid to her by the plaintiff without the knowledge of the defendant is, in our judgment, no evidence against him. But neither does it assist the defendant. As to the monthly payments, we have already said that we see no sufficient grounds for disturbing the judge's finding that the receipts of sums by the plaintiffs from the defendant after Miss Guile left the flat represented no more than was due from him on the footing that he was liable only for monthly payments of £ 86.66. During the period of joint occupation, monthly payments had been made in the sum of £ 173.32. The judge, however, found that there was nothing significant in this point. As he put it (at pp 5-6):

. . . Miss Guile had a bank account; the Defendant did not. The money was sent by cheque by post. It was a matter of convenience for everybody for Miss Guile to pay by cheque and send the cheque by post to the Plaintiffs and recoup herself from the Defendant for his share of the money paid out. It was merely a matter of convenience that Miss Guile paid the money due in that way.

This finding of fact is not in dispute. The judge appears to have considered that the failure of the defendant to challenge the plaintiffs' refusal to accept the defendant's offer to pay a monthly sum of £ 173.32 after Miss Guile left amounted to a plain understanding and agreement between the parties that the defendant was legally liable to pay only £ 86.66 per month. With respect to the judge, we do not think that any such agreement can necessarily be inferred. Nevertheless, the plaintiffs' failure to accept the defendant's offer to pay the higher monthly sum does not in any way assist the defendant's contention that the provisions for payment contained in the two agreements were shams.

34. On the issue of sham, the learned judge summarised his conclusions thus (at p 7):

I have come to the conclusion that this is a case in which the agreement sets out precisely what the parties intended. There is no suggestion that the Defendant did not understand what the agreement meant. He looked at it and read it before he signed it. It was clear to him that this was the true nature of the agreement.

35. In our judgment, in so far as the judge was addressing his mind to the question of the payment of the deposit and the monthly sums, he was amply justified in his finding that there was no sham. Indeed, we know of no evidence which would have justified a contrary conclusion. This, in our judgment, is the only remaining context in which questions of sham might conceivably arise in relation to these agreements. We see no grounds upon which we can disturb the learned judge's finding of fact on this matter.
36. In agreement with the judge, we thus conclude that as a matter of substance and reality, each of the two parties to the agreements placed himself or herself under merely individual obligations to pay monthly sums of £ 86.66 and a deposit of £ 40, but no joint monetary obligations. What then is the effect?
37. Mr Nicol, as his last line of defence, submitted that even on this footing the defendant and Miss Guile were in law capable of being (and were in fact) joint tenants. In this context, he invoked the authority of a dictum of Lord Templeman in Antoniades v Villiers (supra) (at p 1214) where he said:

. . . Mr Antoniades required each of them, Mr Villiers and Miss Bridger, to agree to pay one half of each aggregate periodical payment, but this circumstance cannot convert a tenancy into a licence. A tenancy remains a tenancy even though the landlord may choose to require each of two joint tenants to agree expressly to pay one half of the rent.

38. Lord Templeman was saying this in the context of two agreements which he regarded as shams. With great respect, however, if he was intending to say that a joint tenancy can exist even though the supposed joint tenants are not jointly liable for the whole rent, the weight of authority appears to go the other way. In Antoniades v Villiers (supra) Lord Oliver said (at p 1222):

If the real transaction was, as the judge found, one under which the appellants became joint tenants with exclusive possession, on the footing that the two agreements are to be construed together, then it would follow that they were together jointly and severally responsible for the whole rent. It would equally follow that they could effectively exclude the respondent and his nominees.

In the same case Lord Jauncey said (at p 1225):

Normal attributes of a lease to joint tenants include a demise for a specific period with exclusive possession at a single rent for payment of which each joint tenant is liable to the lessor in full subject to relief from his co-tenants.

39. Finally, very recently in Stribling v Wickham (March 15 1989, unreported)*, Parker LJ, with whose judgment FOX LJ and Sir Denys Buckley agreed, said:

The three licences were in substance and reality just what they purported to be. The right, specifically given under each of termination on 28 days' notice by either side, and the provision whereby each was responsible only for a specific sum which was in fact one third of the total required by the landlord, are wholly inconsistent with a joint tenancy.

The entire inconsistency with a joint tenancy of a provision rendering each licensee responsible only for one third of the total required by the landlord was, as we read Stribling v Wickham, part of the essential reasoning which led this court to its final decision.

40. On these authorities, it appears to us that unity of interest imports the existence of joint rights and joint obligations. We therefore conclude that the provisions for payment contained in these two agreements (which were genuinely intended to impose and did impose on each party an obligation to pay no more than the sums reserved to the plaintiffs by his or her separate agreement) were incapable in law of creating a joint tenancy, because the monetary obligations of the two parties were not joint obligations and there was accordingly no complete unity of interest. It follows that there was no joint tenancy. Since inter se Miss Guile and the defendant had no power to exclude each other from occupation of any part of the premises, it also follows that their respective several rights can never have been greater than those of licensees during the period of their joint occupation. It has not been submitted (and we think in all the circumstances it could not be submitted) that the defendant's status became that of tenant after Miss Guile's departure, if it was not that before.
41. In conclusion, we should refer to one point. Mr Nicol, in the course of his submissions for the defendant, naturally relied strongly on the fact that in Street v Mountford [1985] AC 809 at p 826, Lord Templeman, in a passing reference to Aldrington Garages Ltd v Fielder (supra), expressed their lordships' disapproval of the latter decision. It would appear that such disapproval was based on the view that the transaction in that case represented one of the class of 'sham devices and artificial transactions whose only object is to disguise the grant of a tenancy and to evade the Rent Acts'. We have already mentioned that the agreements in Aldrington were in similar form to those in the present case, albeit with one significant difference. However, every case where the question of lease or licence arises must depend on its own facts. All we need say is that in our view and on the judge's findings, on the particular facts of the present case, no sham device or artificial transaction is involved. At first sight it appeared to us that the employment of two forms of agreement, rather than one, had an air of artificiality about it. However, once it is accepted that the monetary obligations of each licensee were genuinely intended to be entirely independent from those of the other, it seems to us that this course was understandable, even though not essential, and is not fairly open to criticism. We have already accepted that each agreement has to be construed in the light of the other. However, we do not accept Mr Nicol's submission that they were 'interdependent'. While each had to be read with the other, each was perfectly capable of being operated on its own.
42. For the reasons stated, and despite Mr Nicol's admirable argument, we dismiss this appeal.

The appeal was dismissed with costs, not to be enforced without leave of the court; Legal Aid taxation ordered; leave to appeal refused.

The electronic text of this judgment was provided by Estates Gazette, whose assistance is gratefully acknowledged.