England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
His Honour Judge Wood QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		8 December 2016

Sir James Munby, President of the Family Division :

1. This appeal, from a judgment and order of His Honour Judge Wood QC sitting at Liverpool County Court on 14 March 2014, arises in curious circumstances. It potentially involves an important point of law which, in the event, there is no need for us to determine and which in my judgment we should accordingly decline to decide.
2. The claim before Judge Wood was by Thomas Gibson (Mr Gibson) for what he asserted was his unlawful eviction by Lillian Douglas (Mrs Douglas) and her son, Ian Douglas (Mr Douglas), from a property in the Wirral (the property). The property was owned and occupied by Mrs Douglas. Mr Gibson had also been living there for some four or five years. It was common ground before us, though this had been in issue before Judge Wood, that Mr Gibson was a licensee and not a tenant of the property and that it was an "excluded licence" within the meaning of and for the purposes of the Protection from Eviction Act 1977. Accordingly, Mr Gibson was not entitled to the statutory period of notice under the 1977 Act.
3. The alleged eviction took place on 9 January 2013. The case came before Judge Wood, as I have said, on 14 March 2014. Between those two dates, in the summer of 2013, Mrs Douglas had married Mr Gibson. By the time the matter came before Judge Wood, Mrs Douglas (by then Mrs Gibson), lacked the capacity to litigate. It is common ground that she was by then suffering from advanced vascular dementia. The Official Solicitor acted on her behalf as litigation friend.
4. On the morning of the hearing, Mr Gibson's claim against Mrs Douglas (Gibson) was compromised on the basis of a nominal payment by Mrs Douglas (Gibson) to Mr Gibson of £5. So the claim was pursued by Mr Gibson before Judge Wood solely against Mr Douglas.
5. Judge Wood recorded in his judgment that allegations and counter-allegations had been flying around in relation to Mrs Douglas' welfare, but since, as he said, he did not need to resolve any of those matters there is no need for me to say anything more about them. As Judge Wood described them, Mr Gibson's claims against Mr Douglas were two-fold: first, damages for "playing an instrumental role in evicting him" on 9 January 2013; and, secondly, damages for certain of his possessions "appropriated or destroyed or in some other way disposed of by Mr Douglas."
6. I can take the factual background from the judgment, of which we have an approved transcript:

"At some stage probably in 2008/2009 Mr Gibson met Mrs Douglas (as she then was) and entered into occupation of the property … They entered into some kind of arrangement whereby Mr Gibson was able to claim housing benefit, then obviously not in receipt of an income other than from the State, and with the housing benefit he was able to pay what is described as rent or some sort of payment to Mrs Douglas for his use of part of the premises. It is not specified what part of the premises he was using, although he asserts that at the time he and Mrs Douglas were living in separate bedrooms. They had a landlord and tenant relationship, he says, although it was a platonic friendship that developed over the years, and indeed documentation has been produced which suggests that Mrs Douglas herself at least was trying to formalise the arrangement; and it was accepted by the housing benefits authority as one which entitled Mr Gibson to the sums claimed."

Judge Wood recorded Mr Gibson's evidence as being that "his relationship with Mrs Douglas began to blossom in the sense that they became, in his own words, more than just landlady and tenant after 2010."

7. Towards the end of 2012, Mrs Douglas' health deteriorated and she went into hospital. Whilst there, as Judge Wood put it:

"… certain troubling features in respect of the relationship between her and Mr Gibson began to emerge against a background of advancing vascular dementia or Alzheimer's of some nature which called into question her capacity to enter into legal relations, to deal with her property and financial affairs … she was beginning to make disclosures, alleged disclosures I hasten to add, about the way that Mr Gibson had been behaving towards her, including allegations of violence, and she did not want to go back to the property whilst Mr Gibson continued to live there, or at least that is what she is saying at the time."

8. I need to set out the events of January 2013 as they were described by Judge Wood:

"Understandably the hospital contacted Mr Douglas as the next of kin, and Mr Douglas, as the dutiful son, came up to this part of the world. His first approach, and it seems to me that I can place significant store by this, on 7^th January was to Mr Gibson, and was more by way of attempting to find out what was going on. The relationship at that stage was reasonably amicable because Mr Douglas stayed overnight with Mr Gibson. I think Mr Douglas's wife may have been with him at that time, but certainly they had an overnight bag with them and they really wanted to establish what his mother's problem was. They must have known at that stage that Mr Gibson and Mrs Douglas had more than a relationship of landlady and tenant, as indeed Mr Gibson admitted it was.

The following day Mr Douglas, and these are all undisputed facts, went to the hospital to speak to his mum and established, (and I accept this even without hearing from Mr Douglas because it is simply not challenged as a fact), that as she was being discharged Mrs Douglas did not want to go back to the property whilst Mr Gibson was there. This represented something of a sea change in his understanding for [Mr] Douglas, and he contacted the police concerned in her case when told about some of the revelations that were emerging. Whether or not they were true is something that I do not have to decide for present purposes.

When the police attended, and again this is not disputed, Mrs Douglas was a little distance away from the house. There was something of a fracas between the police and Mr Gibson, and, Mr Douglas may have not particularly helped the situation by being there himself and moving into the property immediately, purportedly to assist his mother. As a result of the exchange with the police, Mr. Gibson was forcibly ejected from the property and ended up being taken away from the situation in a police car and thereafter until his relationship resumed with Mrs Douglas was living in other rented accommodation …"

9. Judge Wood continued:

"It is that very act of eviction upon which Mr Gibson seeks to rely, although it is to be noted that the physical removal was effected by the police and, on the undisputed evidence, with Mrs Douglas being nearby."

He added:

"The evidence that I have, which seems to be very difficult for the claimant to refute, is that he was faced with a situation where Mrs Douglas had communicated to the authorities that she wanted him to leave the property. Whether she meant that or not is not a matter that I have to determine, but in those circumstances the authorities, acting upon her expressed wishes and indeed acting upon her best interests, attended with a police officer to require the claimant to leave the property."

10. After Mr Gibson had finished giving evidence, Mr Douglas' counsel made a submission that there was no case to answer. Judge Wood accepted that submission and proceeded to give judgment.
11. Mr Gibson, as Judge Wood recorded in his judgment, had submitted that "Every person is entitled to notice to quit, and it is quite contrary to human rights that somebody should be turned out without being given several days opportunity to leave the property." This led Judge Wood into a discussion of the nature of Mr Gibson's occupation, assessed in the light of the nature of his relationship with Mrs Douglas. His conclusion, which was not challenged before us, was that Mr Gibson was not a tenant, that he was a licensee "in one form or another" – he seems not to have come to any firm conclusion as to whether Mr Gibson was a 'bare licensee' or something more – and that "Mr Gibson's rights to stay there are extremely limited." Judge Wood added that "a licence can be terminated on the giving of reasonable notice to leave the property."
12. Judge Wood's reasons for dismissing Mr Gibson's claim appear from the following passages in his judgment:

"… this was a particularly close relationship, albeit maybe not one in which they were physically sharing a bed or as close as a husband and wife might be, but it was a sufficiently close relationship to take it well outside the context of even that of a lodger. I have no doubt at all that there was no tenancy created here, no assured short-hold tenancy so far as to bring this within the provisions of the Housing Act, and I go a stage further to say that even without hearing evidence from Mr Douglas, on the claimant's account the irresistible conclusion is that Mr Gibson was an excluded licensee, and when he was faced with a situation where Mrs Douglas was communicating through authorities, bearing in mind that she then had difficult capacity problems, that she wanted him out of the property, his right to stay there was extremely limited and those who acted upon that particular wish acted entirely properly.

I am not satisfied that [Mr] Douglas' role was anything more than simply a conduit for his mother's wishes. I do not see him playing any part at all in this eviction so as to entitle the claimant to damages against him, but I bear in mind that this is a claim that has been brought by the claimant. He is the one who must prove his case, and because this is a half time submission I have to look at the evidence, and ask myself whether or not it is capable of proving the assertions that he is making. I have come unhesitatingly to the conclusion that it is not."

13. In relation to Mr Gibson's claim in relation to his possessions, Judge Wood added this:

"Even if I felt that the claimant had some validity (which I do not) in pursuing his stepson-in-law for an unlawful eviction claim, there is a woeful lack of evidence supporting any of the special damages claimed in relation to these missing items, and indeed any other damage that might attach to a claim of this nature, and in view of the background I would have been disinclined to regard this as a case where there should have been any compensatory award and any exemplary damages award in any event."

14. Mr Gibson sought permission, out of time, to appeal to this court. On 29 December 2014, Lewison LJ gave permission to appeal, "limited to the question whether a licensee may lawfully be evicted without notice." Having explained why he was not prepared to give permission on various other grounds of complaint raised by Mr Gibson, Lewison LJ said this:

"… the judge made no finding that Mr Gibson was given any notice before his eviction. The finding that Mrs Douglas told the authorities of her wish that Mr Gibson should leave does not, on the face of it, appear to amount to a finding that notice was given to Mr Gibson himself. Given that Mr Gibson was paying money to Mrs Douglas (at least before she went into hospital) it is at least arguable that there was some form of contractual relationship between them. But even if there was no contractual relationship between them Mr Gibson was a lawful licensee. At common law a lawful licensee is usually entitled to reasonable notice before being compelled to leave. Even if an immediate revocation of the licence is effective, the licensee will not usually become a trespasser until reasonable packing up time has elapsed. If the judge was correct in holding that an eviction without notice was lawful, even though the property was Mr Gibson's home, there is also the question whether the common law is compatible with article 8 of the European Convention on Human Rights."

He described the point as being "of some importance."

15. By then both Mr Gibson and Mr Douglas were acting in person. In December 2015 the appeal was adjourned by Arden LJ to enable both of them to seek pro bono representation. The Bar Pro Bono Unit came to the rescue and facilitated the appearance before us, instructed by the Unit, of Mr Daniel Brayley on behalf of Mr Gibson and Mr James Fieldsend on behalf of Mr Douglas. We are very grateful to the Unit for its assistance but more particularly to Mr Brayley and Mr Fieldsend who, acting in the highest traditions of the Bar, have provided us with helpful, focused and realistic submissions. I am only sorry that the course I propose we should take will deny them a judgment on the interesting point which they had come to argue.
16. At the end of the hearing, we announced that the appeal would be dismissed for reasons to be given in due course. I now give my reasons for having agreed to that decision.
17. Focusing on Judge Wood's findings that "the physical removal was effected by the police" and that Mr Douglas was "simply a conduit for his mother's wishes" and not "playing any part at all in this eviction so as to entitle [Mr Gibson] to damages against him", Mr Fieldsend submitted that the appeal must fail whatever the correct answer might be to the legal question posed by Lewison LJ. To this argument, struggle as he might – and he said everything that could properly be said on behalf of Mr Gibson – Mr Brayley at the end of the day had no convincing answer.
18. It is clear from Judge Wood's judgment that, although both were present when Mr Gibson was evicted, neither Mr Douglas, nor for that matter Mrs Douglas, took any active role in what happened. As Judge Wood put it, "the physical removal was effected by the police", with Mr Douglas "being there" and Mrs Douglas "being nearby" though "a little distance away from the house." There was nothing in the evidence, and there is nothing in the judgment, to indicate that Mr Douglas did anything at the property while Mr Gibson was being evicted capable of making him a joint tortfeasor, whether with Mrs Douglas or with the police. Nor, on the evidence or in light of the judgment, did his acting, in Judge Wood's phrase, as a "conduit for his mother's wishes", make him a joint tortfeasor. I agree with Mr Fieldsend that on this short ground the appeal must be dismissed.
19. One of Mr Brayley's complaints is that, while Judge Wood, as he submits, correctly summarised the law when he said that "a licence can be terminated on the giving of reasonable notice to leave", he failed to apply the law properly. I am not sure this is correct. As I read his judgment, Judge Wood decided the case on the narrow point that Mr Douglas was not sufficiently involved in what happened to be exposed to whatever liability there might otherwise have been. On that basis there was no need for Judge Wood to come to any conclusion as to whether the eviction was unlawful, either for want of notice or because Mr Gibson was given inadequate time to pack up and go.
20. Leaving on one side the question of whether notice, written or oral, is required to terminate a licence (a question which, in the circumstances, I need not go into), it is clear law that, where the relevant period has not been specified by the licence itself, a licensee is entitled, following revocation of the licence, to whatever in all the circumstances is a reasonable time to remove himself and his possessions: see Minister of Health v Bellotti [1944] KB 298. With all respect to counsel who suggested otherwise, it is impossible to define the principle with any greater precision and undesirable that we attempt to do so.
21. I add these observations. At one end of the spectrum, the unwanted visitor who presents himself at the front door, is asked in but then told to go, must leave immediately, taking the quickest route back to the highway and not delaying; so his period of grace may be measured in minutes: see Robson v Hallett [1967] 2 QB 939. On the other hand, a period measured in years may in some cases be appropriate: see, for example, Parker v Parker [2003] EWHC 1846 (Ch), where the Earl of Macclesfield was held entitled to two years to leave the ancestral home, Shirburn Castle, which he had been occupying as a licensee for some ten years. There was some discussion before us as to what the appropriate period might be in a case such as this. It depends on the circumstances. That said, I very much doubt that it would be a period measured in minutes, hours or even days. On the other hand, I can well imagine that it might typically be a period measured in weeks rather than months or years. Further than that I am not prepared to go.

Lord Justice Briggs :

22. I agree.