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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Gibson v Douglas & Anor [2016] EWCA Civ 1266 (08 December 2016) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2016/1266.html Cite as: [2016] EWCA Civ 1266 |
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ON APPEAL FROM LIVERPOOL COUNTY COURT
His Honour Judge Wood QC
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE BRIGGS
____________________
THOMAS ![]() | Appellant |
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- and - |
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IAN ![]() ![]() |
Respondent |
____________________
Mr James Fieldsend (instructed by the Bar Pro Bono Unit) for the respondent
Hearing date : 24 November 2016
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Sir James Munby, President of the Family Division :
"At some stage probably in 2008/2009 MrGibson
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."
"… certain troubling features in respect of the relationship between her and MrGibson
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."
"Understandably the hospital contacted MrDouglas
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 7th 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 MrDouglas,
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, MrsDouglas
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 …"
"It is thatvery
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 bevery
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."
"… 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 MrDouglas,
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."
"Even if I felt that the claimant had somevalidity
(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."
"… the judge made no finding that MrGibson
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."
Lord Justice Briggs :