England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SHEFFIELD COUNTY COURT
(JUDGE BARTFIELD)

		Royal Courts of Justice Strand London WC2 Wednesday, 28th March 2001

Wednesday, 28th March 2001

1. LADY JUSTICE ARDEN: This is an application by the claimant for permission to appeal from the order of His Honour Judge Bartfield dated 7th December 2000. The learned judge in effect determined a preliminary issue, that is whether, after the date fixed for possession of a property on an application for the suspension of the possession order made for non-payment of rent, the court could take into account evidence other than as to the payment of rent. In this case it was sought to adduce evidence as to nuisance.
2. This is a second appeal and accordingly CPR 52.13 applies and the applicant must show either that the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it.
3. It is necessary to say a little about the background. The defendant was granted a secure tenancy of 571 Martin Street on 30th August 1999. Since moving there, complaints have been made about her conduct and the keeping of animals at the property, and the claimant was sent written warnings concerning those complaints in October, November and December 1999. In December 1999, the claimant sent a written warning to the defendant that proceedings for rent arrears might be taken as no payments of rent had been made.
4. On 24th February 2000, the claimant issued a summons for possession of the property. Attached to the Particulars of Claim was a schedule of the defendant's account history showing no repayments had ever been made. That notice was served on the defendant on the same date. On 3rd July 2000 District Judge Hawksworth made an order with possession suspended on terms that required the defendant either to make payment by 10th July 2000 or give up possession by 31st July 2000. The terms were not complied with and a request for a warrant of possession was issued by the claimant on 10th August 2000.
5. The defendant then issued an application notice seeking suspension of the warrant for possession and setting out her reasons for non-compliance with the order of 3rd July, citing illness and depression. At the hearing of the application on 20th September 2000 the claimant made representations as to adducing evidence of nuisance on the part of the defendant, and arguments were also raised by the claimant on the discretion permitted to the court by section 85 of the Housing Act 1985.
6. By an application dated 5th October 2000 the defendant applied for an order that there should be a preliminary hearing on the legal arguments as to whether matters other than the non-payment of rent could be raised in the proceedings. The preliminary hearing was held before District Judge Oldham who, on 2nd November 2000, ordered among other things that such arguments on matters other than rent were not to be raised upon the application to suspend a warrant for possession. The claimant sought to appeal this part of the order. The appeal was heard by the judge on 7th December 2000 and he ordered that the claimant's appeal be dismissed.
7. The claimant now seeks leave to appeal on the question whether the statutory scheme in the Act prevents the court from considering matters other than the ground relied upon in the possession proceedings when exercising its discretion whether to suspend a warrant under section 85. The claimant in essence contends that the discretion under the section is unfettered in this regard and that all relevant matters should be considered.
8. The learned judge adopted as his own the reasons given by the district judge. The district judge felt that the central issue was the interpretation of section 85(3)(b) of the Housing Act 1985, which formed part of the regulatory mechanism for claiming possession from secure tenants. The district judge focused on the fact that sections 80(2)to (4) of the Act set out the necessary requirements before an order for possession can be obtained against a secure tenant. The judge noted that the difference between the parties was as to the meaning of section 85(3) in that, on the one hand, the defendant says that it must be read in the light of the previous sections of the Act and the conditions have to be relevant to the particular grounds on which the instant case was based, while the claimant submitted that one could not imply into section 85 any restrictions of the court's consideration when considering enforcement and that it is sufficiently wide to consider any matter relevant to the suspension.
9. The district judge preferred the defendant's argument that it was not envisaged that the whole issue could be brought before the court on consideration of an application to suspend and that the effect of the claimant's submission was that it allowed matters to be taken into account by the back door. The district judge held that this was not consistent with section 84(3). The district judge said:

"Where the Act has laid down a regulatory mechanism, one cannot look in isolation at parts of that mechanism. There is an obligation to be specific. Only on grounds specified in a notice can the court make an order. If then, a warrant is issued and an application is made to suspend it is not logical to allow the whole history to be opened up, nor is there any support for that contention in the statute.

... It is not logical to look at matters not relevant to the ground and to allow the landlord to rely on matters not in the proceedings up to then."

10. In the application notice to this court the applicant has identified as grounds for appeal that the district judge erred in holding that the statutory scheme in the 1985 Act prevented the court from considering matters other than the ground relied on in the possession proceedings when exercising his discretion as to suspension under section 85, and submits that the judge erred in holding that it was not logical to consider all matters relevant to the defendant's occupancy on such an application. He further submits that the judge erred in not holding that the discretion was unfettered.
11. I now turn to section 85 itself in Part IV of the Act dealing with secure tenancies. As this is an application for permission, I shall read section 85 and not the other sections in the same part, which will in due course be relevant. In section 85(1) it is provided that the court may adjourn proceedings for possession of a dwelling-house for such period as it thinks fit. Sub-section 2 provides:

"On the making of an order for possession of such a dwelling-house on any of those grounds [that is, the grounds set out in schedule 2], or at any time before the execution of the order,the court may--

(a) stay or suspend the execution of the order, or

(b) postpone the date of possession,

for such period or periods as the court thinks fit."

12. Sub-section 3 provides:

"On such an adjournment, stay, suspension or postponement the court--

(a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy (mesne profits), unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and

(b) may impose such other conditions as it thinks fit."

13. There are then some further sections which I do not need to read.
14. Mr. Tyson for the applicant has made a number of submissions in his skeleton argument. He points out that the effect of the decision by the learned judge is to limit the court's consideration of evidence from either side on an application to suspend to that relevant to the ground on which the possession order was previously made; but such applications are heard daily in every county court and it is likely that, if the judge is correct, the incorrect test is being applied on a daily basis and evidence being considered which is irrelevant in law. He submits that the effect of the authorities is that, where an order for possession is made suspended on terms as to payment of arrears, the tenancy comes to an end when the tenant is in breach of the terms of suspension (see Thompson v. Elmbridge Borough Council [1987] H.L.R. 526 at 531, and Greenwich London Borough Council v. Regan [1996] 28 H.L.R. 469 at 478).
15. Mr. Tyson further submits that from the date of the breach of the terms of suspension, and hence the end of the tenancy, the occupier becomes a tolerated trespasser unless and until a party applies to change that situation and the secure tenancy and its covenants are in limbo (see Brent London Borough Council v. Burrows [1996] 4 All ER 577 at 484).
16. Mr. Tyson has also shown me a number of short reports of cases in the county court which bear out his submission that the law may be being differently applied in different County Courts. In Islington London Borough Council v. Reeves (LAG June 1997), the court held that it would be wrong to ignore the existence of further evidence which was relevant to suspension which was not relied upon when the application for possession order was made on the footing that the discretion to suspend was a general discretion. But it appears that a contrary view may have been taken in Hammersmith & Fulham London Borough Council v. Brown (Current Law, May 2000 p.350), where it was held that allegations of anti-social behaviour could not be relied upon in the possession proceedings as a ground of possession and should be dealt with in separate proceedings.
17. As I have said, the principal submission (and it is probably a short point) is that the discretion to suspend a warrant for possession is one which is unfettered by statutory words and reinforced by the further powers given to the court in section 85(3)(b). Mr. Tyson submits that there is no good reason nor binding authority to suggest that the court, when exercising such a wide discretion, should not take into account the tenant's behaviour, i.e. that behaviour that would, but for the covenants being in limbo, be a breach of the tenancy agreement and afford a ground for possession under schedule 2.
18. I have considered these submissions. At this stage, of course, all I am concerned with is the question whether there is a real prospect of success on appeal and, in addition, whether there is an important point of principle or practice or some other compelling reason for the Court of Appeal to hear this appeal. I am satisfied that, as a matter of statutory construction, there is a properly arguable point. In my judgment the test of a real prospect of success is established. So far as the two-tier test in CPR 52.13 is concerned, I am also satisfied that this appeal would raise an important point of principle or practice and that there are compelling reasons for the Court of Appeal to hear it. It is important that the question of the extent of the matters which can be considered when the court is exercising its discretion to suspend should be considered on an authoritative basis, bearing in mind that there is some evidence that there may be conflicting practices within the various county courts and that housing cases are a matter of considerable concern to a large number of people.
19. Therefore, I give permission to appeal.
ORDER: Leave to appeal allowed.