England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HH JUDGE FABER
CL 255093

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th February 2006

Lord Justice Buxton :

1. This is an appeal from a preliminary ruling by Her Honour Judge Diana Faber in possession proceedings brought by the Royal Borough [the borough] as landlords against their tenant, Mr Richmond. The ruling was made on a short but far from straightforward point that arose with little prior warning to the judge, and in the midst of a large and busy list. We have been able to consider it at the greater length appropriate to appellate work, assisted by the excellent arguments of Mr Nabi and Mr Bhose.

The development of the case

2. The borough sought possession of Mr Richmond's secure tenancy of a flat owned by them on the ground that he was causing a nuisance to and harassing his neighbours, within the terms of Ground 2 in Schedule 2 to the Housing Act 1985 [the Act]. The allegations were of behaviour that, if it had taken place, exposed other tenants of the borough to a quite unacceptable type and level of interference with their daily lives. The application came before HH Judge Collins on 17 December 2003. After hearing counsel for both parties he made the following order (the text of which has been amended by agreement to remove two misprints)

1. Order for possession 28 days suspended so long as Defendant complies with terms of Tenancy Agreement relating to his behaviour

2. No warrant to issue without permission of Circuit Judge

3. Order possession to remain in existence until 17 December 2004. Permission to Claimant to apply for extension.

3. The meaning and implications of this order are a matter of dispute in this appeal. At this stage I would make only two comments about it. First, since the judge made the order, he must have been satisfied of some at least of the allegations brought against Mr Richmond. Second, the suspension of the order granting the borough possession is a very common term of possession orders in cases of secure tenancy; as, we understand, is also the putting of a finite time-limit on the currency of the order. The purpose of the latter provision is to avoid the tenant having the threat of possession hanging over him indefinitely, with the effect that he would be at least potentially liable to lose his tenancy should he commit any breach of his covenants however many years after the original order.
4. The borough contended that Mr Richmond did indeed breach the terms of his tenancy after 17 December 2003, and thereby broke the terms of the suspension of Judge Collins' order. They sought to return to court for permission to issue a warrant for possession under the terms of clause 2 of that order. It proved difficult to contact Mr Richmond in order to notify him of any proceedings, and there was also difficulty, responsibility for which it is not necessary to determine, in securing a date at the county court. The application, issued on 1 November 2004, sought the following order:

The Claimant is permitted to issue a warrant for possession of land. If the index application and/or execution is not dealt with before 17.12.04 the Suspended Order is extended for a period of 6 months

Mr Bhose tells us, and though we have no evidence on the point I would take it from him, that a significant concern of the borough was that it might be argued against them that any application under Judge Collins' order had to be finally determined, and not merely moved or heard, by the date for expiry of the order of 17 December 2004. That was why an extension of the currency of that order was sought, under the liberty to apply given in clause 3 of that order, and that was why the circumstances in which the order was sought were explained as they were in the borough's application.

5. The application came on before HH Judge Mackie QC on 10 December 2004. The case was in a most unsatisfactory state. The judge had no papers, and Mr Richmond was not present, there being no evidence that his absence was contumacious. There is no note of any judgment by the judge, and in the circumstances he probably and understandably did not deal with the matter with any degree of formality. However, it is not difficult to reconstruct the features of the case that would have impressed themselves on the judge, as they would upon any judge; and the course that he decided to take, again as any judge would have done. The important factors in the case were, first, that Mr Richmond was in peril of losing his home, but was not present to defend himself; but, second, that the borough had an important interest in their claim being properly heard, both as landlords and, even more importantly, in the interests of their other tenants who, they alleged, were being harassed unreasonably by Mr Richmond. The judge would, therefore, have sought to hold the position until the matter could be properly tried. He ordered in the following terms:

1. The suspended order for possession be extended for further 6 months

2. The application for Warrant for Possession be adjourned.

That order was plainly intended to enable the borough to move its application for a warrant under the possession order at a future date, while in the meanwhile ensuring that that objective was not frustrated by the limit on the currency of the possession order imposed by clause 3 of the order of Judge Collins.

6. Would that it were so simple. Unknown to them the borough had strayed into, and had thus led the judge into, one of the more recondite areas of Landlord and Tenant law. For it is argued before us, on grounds that are by no means negligible, that far from the judge's order having the effect that he intended, of keeping the application for a warrant for possession alive, it had had exactly the opposite effect. That was because the extension of Judge Collins' order for a further six months had the effect in law of changing the date on which Mr Richmond was obliged to give possession of the premises. That revived the original tenancy, which would, if the breaches now alleged were proved, have already terminated on the date of the first of those breaches; and that in turn meant that the slate was wiped clean in respect of breaches by Mr Richmond up to the date of Judge Mackie's order. Therefore the borough could now only rely on breaches subsequent to the date of Judge Mackie's order, and to do so it would need to start fresh proceedings: since the order of Judge Collins had been made in respect of a tenancy that had expired, however much it might thereafter have accidentally revived. In order to see how that striking outcome is said to come about we need to look at the law.

The emergence of the tolerated trespasser

7. The guiding authority is the speech of Lord Browne-Wilkinson, agreed in full by the majority of the House, in Burrows v Brent LBC [1996] 1 WLR 1448. That addressed the special case of a secure tenancy, in respect of which section 85(2) of the Act provides that

On the making of an order for possession of [a dwelling house held on a secure tenancy on any of the grounds permitted by the Act], 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.

By section 82(2) of the Act, where the landlord obtains an order for the possession of the dwelling-house the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order. If, however, the court, as in the present case, orders the suspension of the possession order on conditions, the tenancy terminates automatically on the breach of those conditions: Thompson v Elmbridge Borough Council [1987] 1 WLR 1425.

8. So far so good. But the issue in Burrows concerned the status of an agreement between the landlord and the tenant, after the landlord had obtained an immediate possession order, that a warrant for possession would not be sought if the tenant paid off the arrears at a given rate. She failed to keep up the payments, and the landlord sought to enforce the original order for possession. This court held that he could not do so, as the effect of the agreement in law had been to create a new tenancy, giving the tenant new rights of occupation. Lord Browne-Wilkinson pointed to the inconvenience of such an outcome, in that it would deter landlords, and conspicuously landlords of public or social housing, from granting their defaulting tenants the kind of humane opportunity to put their affairs in order that the landlord had granted in Burrows. He therefore held that the agreement was to be read in accordance with the intentions of the parties, which plainly was not to grant, or to receive, a new tenancy, but simply to forebear from executing the possession order, on terms.
9. Some explanation had therefore to be found for the legal status of the tenant, or rather former tenant, while the suspensory agreement was still current: it being borne in mind that by section 82(2) of the Act the tenancy had determined on the date for giving possession under the court's unconditional order. Lord Browne-Wilkinson said this, [1996] 1 WLR at p 1455C:

the retention of possession and the payment of rent relate to occupation under the old tenancy which is in limbo but which may be revived. In these circumstances I think it is fair to characterise the former tenant as a trespasser whom the landlord has agreed not to evict-a "tolerated trespasser"-pending either the revival of the old tenancy or the breach of the agreed conditions.

10. Lord Browne-Wilkinson was led to that analysis by submissions by the landlord as to the effect of section 85 of the Act, based largely on the decision of this court in Greenwich LBC v Regan (1996) 28 HLR 469, and which he accepted. Those submissions, set out at [1996] 1 WLR p1452H, were as follows:

1. Although under section 82(2) the original tenancy came to an end on 12 February 1992 (being the date fixed by the order giving possession) that was not necessarily the final position.

2. Under section 85(2) the court has power to postpone the date of possession.

3. This power to postpone the date for possession is exercisable by the court "at any time before the execution of the order." This shows that the power can be exercised even after the date for possession specified in the order has passed and the tenancy has thereby been terminated by virtue of section 82(2).

4. This conclusion is reinforced by section 85(3)(a) which postulates that the court can make a suspended order conditional on making "payments in respect of occupation after termination of the tenancy (mesne profits)." This demonstrates that there can come a time when, although the old tenancy has terminated and the former tenant has remained in possession for which he is liable to pay mesne profits as a trespasser, the court can until the original order is executed make an order varying the date for the giving of possession thereby reviving the previously defunct tenancy.

5. Therefore, so far as the tenant is concerned, the crucial event is the execution of the order for possession. Down to that date the tenant can apply to the court for a variation of the original order substituting a new date on which possession is to be given thereby reviving the old secure tenancy. This revived tenancy will not be terminated under section 82 until the new date for giving possession occurs.

6. That such revival of the old tenancy is possible is demonstrated by section 85(4) which plainly assumes that on discharge or rescission of the original order for possession, the old secure tenancy will revive.

11. In our case, the crucial part of that analysis is the assumption that in the case of a tolerated trespasser the tenancy remains in limbo, but subject to revival by the court ordering, or the landlord agreeing to, an alteration in the date on which possession is to be given. As Lord Browne-Wilkinson summarised that position, [1996] 1 WLR at p 1454H:

But even determination by order of the court is not final. Until the possession order is executed, the court can by variation of its order change the date on which possession is to be given and thereby revive a secure tenancy which has already been terminated.

That such is the effect of a variation in the date on which possession is to be given has also been recognised on a number of occasions by this court. Thus in Lambeth LBC v Rogers (1999) 32 HLR 361 Mummery LJ said, at p368:

It is also clear from Burrows that the effect of a court order postponing the date for possession under section 85(2)(b) is that, unless the court otherwise directs, the secure tenancy is revived and that the revival applies retrospectively to the covenants, as well as to the tenancy itself.

Did the tenancy revive in the present case?

12. Before us, Mr Nabi advanced two bases on which it could be said that the order of Judge Mackie postponed the date on which possession was to be given, and thus revived a tenancy that had already been terminated. The first of these, which I will be forgiven for passing over fairly shortly, was that by ordering that the suspended order for possession be extended, Judge Mackie caused a new order to commence, albeit in the same terms as the order of Judge Collins. The date on which possession was to be given thus became 28 days after the order of Judge Mackie, rather than 28 days after the order of Judge Collins. That claim simply does not meet the wording of Judge Mackie's order. What he extended was "the suspended order for possession": meaning thereby the order of Judge Collins. If there was any doubt about the power of Judge Mackie to extend Judge Collins' order, rather than to make his own order, that power is to be found in the permission given to the claimant to apply for an extension of that latter order that is contained in clause 3 thereof. Nor does this analysis fit with the basic rule that what happens as a matter of law when the date for possession is extended is that the old tenancy revives, and not that a new tenancy is created.
13. The second argument was a good deal more formidable. The effect of Judge Collins' order, in the light of the rule in Thompson v Elmbridge Borough Council that the tenancy terminates, thus possession must be given, at the moment of breach of a condition of a suspended possession order, was that the date for Mr Richmond to give possession was such day up to but not beyond 17 December 2004 (the date of expiry of Judge Collins' order) on which Mr Richmond broke a condition of the suspension. By extending the order for six months Judge Mackie had altered that date to such day up to but not beyond 17 June 2005 on which a breach might take place. That was not merely an extension of the currency of the order but also a postponing of the date of possession.
14. Judge Faber gave these arguments fairly short shrift. She held that clause 3 of Judge Collins' order had been an exercise in case management powers, and that in extending the order under that clause Judge Mackie had similarly been managing the case and not addressing the substantive rights of the parties. There had therefore been no need for either the borough or the judge to go anywhere near section 85(2)(b). That instinctive reaction was, with great respect, a proper assessment of the realities of the case. It is only the fuller argument that we have heard that requires us to pursue the issue in some more detail before reaching the same conclusion as did the judge.
15. The first thing to be said about the jurisprudence of Burrows is that in that case, the doctrine of revival of the tenancy through an extension of the date for possession was not actually applied. That cannot of course affect the authority of the general statements that the case contains, but it does mean that they have the authority of general statements, rather than of principles the limits and extent of which have been demonstrated by application to a range of factual circumstances. Our guidance as to what would, in a somewhat unusual case such as the present, count as "an extension of the date for possession", and what would be its effect, has therefore to be drawn from the general circumstances in which the House thought that such an event would occur, and the purpose that the House saw as being achieved by such a change in the date for possession.
16. "The date for possession" in an order for possession will necessarily be a date that has been stipulated by the court after a finding of breach sufficient to warrant the surrender of possession by the tenant. It is therefore part of the sanction imposed by the court in respect of that breach. If that date is varied or extended, either by the court or by agreement between the parties, that step, by relieving from the sanction attending the breach, is to be taken as a waiver or forgiveness of that breach. That is the only way in which to explain how that agreement or order has the effect, not of creating a new tenancy, but of putting back in place the old tenancy, with all its terms and covenants, but cleared of the tenant's original breach. That is why Lord Browne-Wilkinson, in particular in point 5 quoted in §9 above, regarded the substitution of a new date for possession as a means of relieving the tenant, for which the tenant either had to or in practice would apply to the court if he could not persuade the landlord to agree to an extension. That is why this court, in Greenwich LBC v Regan (1996) 28 HLR 469, the principal previous authority referred to by Lord Browne-Wilkinson, said, at p 478:

The tenancy continues until the date on which the tenant is ordered to give up possession. If the order is suspended on terms, the tenancy continues until there is a breach of those terms and then determines. The Local Authority is free to treat the tenant as a trespasser and to request the court to issue a warrant of execution. The tenant, on the other hand, is entitled to apply to the court to vary the terms of the order by postponing the date of possession. If it does so, the tenancy is reinstated and treated as if it had not determined.

17. It is impossible to analyse what occurred before Judge Mackie in those terms. Mr Nabi argued that the combination of the two parts of the judge's order meant that the extension of the original order had nullified the decision to adjourn the application for a warrant of possession. In truth, the combination of the two orders had exactly the reverse effect. That the judge kept in place the application to enforce the sanction imposed for the original breaches of the tenancy showed quite clearly that the last thing that he saw himself as doing was to relieve the tenant from the consequences of those breaches. It is impossible to see this as an extension of the date on which possession must be given of the kind, and with the consequences, that Lord Browne-Wilkinson must have had in mind in Burrows.
18. That suffices to uphold the ruling of Judge Faber and to lead to the dismissal of this appeal. I would however go further, and say that, quite apart from the order not falling into the category of orders referred to by Lord Browne-Wilkinson, even the broad verbal terms of the exposition in Burrows do not fit this case. As we have seen, the argument for the appellant requires "the date on which possession is to be given" to be the date of the tenant's breach, if any, of the suspensory conditions. That means that when the matter came before Judge Mackie, even on the basis of the appellant's contentions the effect of his order depended on whether or not a breach had already occurred. If on that date Mr Richmond was indeed already in breach, then the judge's order could not have the effect of changing the date on which possession was to be given, because that date had already accrued. If on the other hand Mr Richmond was not in breach, it is true, and this is the basis of Mr Richmond's case, that the extension of Judge Collins' order extended the period during which he might fall into breach. I would make the following comments.
19. First, it is very strange that the correct analysis of the nature and terms of the judge's order should depend on a condition: not a condition as to future events, but a condition as to the current state of affairs, whether Mr Richmond was in breach, which however the judge was unable then to determine, and where he had made his order only because he was unable to make that determination. Mr Nabi said that that was not in fact unusual, because a suspended order was by its nature already conditional, withholding possession on condition of good behaviour. But the condition in the present case goes not to future compliance with the order, but to its present nature and effect, complied with or not. Judge Mackie is not to be taken as inferentially but not expressly making an order that (depending on the state of current facts that had not yet been determined) would in one case (potentially) determine the tenancy; but in another case would have no effect on the tenancy but merely provide for the management of the litigation. Second, even if Mr Richmond were not in breach at the date of Judge Mackie's order, I agree with Mr Bhose that it is a misuse of language to say that the effect of the six-month extension was to change the date on which possession was to be given. All that the extension did was to extend the period during which an obligation to give possession might arise. Such an extension was already provided for in the order of Judge Collins. That is a long way away from what was envisaged in Burrows.

Conclusion

20. The appellant's contentions are disturbing on two levels. First, if correct they would prevent judges making sensible determinations to preserve the interests of both parties and to ensure that the substance of important issues is properly tried, and lead to wasteful duplication of litigation. Second, they apply the jurisprudence of Burrows in a way that was plainly not intended. The summary reaction of an experienced county court judge to such difficulties will often prove, after more minute examination of the issues, to have been soundly based. This is such a case. I would dismiss the appeal.

Lord Justice Lloyd:

21. When Mr Richmond's application for permission to appeal came before me, it seemed to me that he had an arguable point as to the effect on his status of the extension provisions in Judge Mackie's order. Mr Nabi has fully justified the view which I formed at that stage, by arguing the point clearly, economically and well. Nevertheless I am satisfied that Judge Faber was right to reject the submissions he made to her on the same basis.
22. He submits that, even if Mr Richmond had broken the terms of the tenancy relating to his behaviour before 10 December 2004, so that the date on which he was obliged to give possession had already passed, the effect of Judge Mackie's order was to override that and deprive the Council of the right which it otherwise had, on proof of the relevant breach and subject to obtaining the court's permission, to obtain possession of the premises. For good measure he submitted that the same process occurred again when on 4 March 2005 Judge Lindsay made an order giving directions as to evidence on the pending application for permission to issue a warrant, and also extended the suspended order by a further 3 months.
23. Both judges would have been extremely surprised, to say the least, to be told that the effect of their respective orders was as Mr Nabi submits, since it would plainly subvert and frustrate the remaining provisions of their orders by rendering futile the Council's application for permission to issue a warrant.
24. It may not be strictly correct to characterise the extension of the suspended possession order as a matter of case management, though the other parts of the orders made by Judge Mackie and Judge Lindsay clearly were case management directions. I can well understand why, under the pressure of time and lack of advance notice from which Judge Faber suffered when hearing the case, she should use that phrase. Like Buxton LJ I consider that her instinct was correct. If Mr Richmond had already broken the terms of the suspension, the previous orders did nothing to affect his status as a "tolerated trespasser" or the Council's rights.
25. It may seem somewhat artificial to describe Mr Richmond as a "tolerated trespasser" in circumstances where the landlord is actively seeking to issue a warrant for possession, but the logic of Burrows requires that he be regarded as having the status described in that case in the House of Lords until either the old tenancy is revived (or a new tenancy created) or he is actually evicted.
26. It seems that the Council sought the extension from Judge Mackie in case it were argued on Mr Richmond's behalf that no warrant could be issued unless the application were heard by 17 December 2004. No such argument had been advanced for Mr Richmond by then. Up to that time, however, there had been limited engagement with him, he was not present at the hearing, and he may not have had notice of it. The Council cannot be fairly criticised for seeking to anticipate and guard against a technical point that might be taken.
27. In fact no such point was taken, and it would not have been a good point anyway. The extension was not needed from that point of view. If the terms of the suspension had already been broken the extension did not substitute a new date on which possession was to be given. The only basis on which it could be construed as having that effect would be that it waived any previous breaches. An order could no doubt have that effect if it were expressed to do so, but Judge Mackie's order, and that of Judge Lindsay, were clearly not intended to have that effect, which would have been inconsistent with the other provisions of those orders, which depended on the position remaining open as to whether there had been prior breaches, and if so as to whether they justified allowing the Council to issue a warrant.
28. If, as Mr Richmond contends, the terms had not been broken, the extension affected the position only to the extent that he was at risk of enforcement if he broke the terms of the suspension before a later date. In that case the old secure tenancy was still in existence and the order had no immediate effect on its status. Even if that analysis had not been present to the minds of those concerned at the time of the orders by which the period of suspension was extended, the orders could not be impugned on that basis, nor does Mr Nabi seek to do so.
29. There are sound reasons for imposing a time limit on the period during which a tenant is at risk of losing his home for breach of the terms (or some specific terms) of the tenancy. If the tenant does not breach the relevant terms during the stipulated period, the view can fairly be held that he ought not to be at risk for the future, absent fresh proceedings. Likewise there may be sound reasons for extending the period of suspension on the landlord's application.
30. It seems to me clear that, if the period of suspension is extended, that does not of itself change the date on which the tenant is to give up possession, for the purposes of section 82(2), if that date has already arrived.
31. I too would dismiss this appeal.

Lord Justice Gage:

32. I agree with both judgments