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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> North British Housing Association Ltd. v Matthews  EWCA Civ 1736 (21 December 2004)
Cite as:  EWCA Civ 1736,  1 WLR 3133,  2 All ER 667
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL from MANCHESTER COUNTY COURT
District Judge Saffman
and from EDMONTON COUNTY COURT
District Judge Silverman
Strand, London, WC2A 2LL
B e f o r e :
Vice President of the Court of Appeal (Civil Division)
LORD JUSTICE MANCE
LORD JUSTICE DYSON
| (1) North British Housing Association Limited
|- and -
|(2) North British Housing Association Limited
|(3) North British Housing Association Limited
|(4) London and Quadrant Housing Limited
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Paul Chaisty QC and Geraint Wheatley (instructed by Messrs Cobbetts) for the 1st/2nd/3rd Respondents
Mr Michael Supperstone QC and Zia Nabi (instructed by Messrs Tyrer Roxburgh & Co) for the 4th Appellant
Mr George Laurence QC and Miss Zia Bhaloo (instructed by Messrs Trowers & Hamlins) for the 4th Respondent
Crown Copyright ©
Lord Justice Dyson: This is the judgment of the court.
The statutory framework
"7(1) The court shall not make an order for possession of a dwelling-house let on an assured tenancy except on one or more of the grounds set out in Schedule 2 to this Act …
(2) The following provisions of this section have effect, subject to section 8 below, in relation to proceedings for the recovery of possession of a dwelling-house let on an assured tenancy.
(3) If the court is satisfied that any of the grounds in Part 1 of Schedule 2 to this Act is established then, subject to sub-sections (5A) and (6) below, the court shall make an order for possession.
8(1) The court shall not entertain proceedings for possession of a dwelling-house let on an assured tenancy unless –
(a) the landlord or, in the case of joint landlords, at least one of them has served on the tenant a notice in accordance with this section …
9(1) Subject to sub-section (6) below, the court may adjourn for such period or periods as it thinks fit proceedings for possession of a dwelling-house let on an assured tenancy.
(2) On the making of an order for possession of a dwelling-house let on an assured tenancy or at any time before the execution of such an order, the court, subject to sub-section (6) below, may
(a) stay or suspend execution of the order, or
(b) postpone the date of possession
for such period or periods as the court thinks just.
(6) This section does not apply if the court is satisfied that the landlord is entitled to possession of the dwelling-house –
(a) on any of the grounds in Part 1 of Schedule 2 to this Act; or
GROUNDS FOR POSSESSION OF DWELLING-HOUSES LET ON ASSURED TENANCIES
Grounds on which Court must order possession
Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing –
(a) if rent is payable weekly or fortnightly, at least 8 weeks' rent is unpaid;
(b) if rent is payable monthly, at least 2 months' rent is unpaid;
The general power to adjourn
Section 9 of the Housing Act
The power to adjourn before the court is satisfied that the landlord is entitled to possession
"If for extraneous listing reasons a trial is fixed for the day after rather than the day before a change in the relevant law, we find it difficult to see how a defendant could feel any legitimate sense of grievance, or be able to say that he had been unfairly prejudiced. He might well be regarded as unlucky to have got the later date rather than the earlier, and equally a person whose trial commenced the day before might be regarded as lucky to have his trial when he did, but luck or chance seems to be a rather unsatisfactory foundation for the suggested right of the defendant. Again, if the prosecution in a case sought and obtained an adjournment for quite extraneous reasons (eg the non-availability of an expert through no one's fault) and the trial then started after rather than before a relevant change in the law, it is difficult to see what injustice would be done to the defendant, nor (to our minds) could it be suggested that, despite a perfectly good reason for an adjournment, it should nevertheless be refused so as to preserve the defendant's suggested right to be tried on the law as it stood when the trial would otherwise have been held. Yet the result in these examples would be precisely the same as in the present case. In short, in the absence of special circumstances it is difficult to see why in justice a defendant should have the suggested right."
"To our minds, the arguments against accepting some unqualified inalienable right or entitlement in a defendant to be tried on the law as it stands on the day which happens to be fixed for his trial, so that it cannot be adjourned if the law will change, are overwhelming. However, that is not the end of the matter. Quite apart from rights vested in the defendant are the duties and responsibilities of the court. It is common ground that it would be unjudicial for a court (as in R v Boteler (1864) 4B & S 959, 122 ER 718) to refuse to apply the substantive law on the grounds that the court regarded that law as unfair or wrong. In the present case the magistrates concluded, in effect, that the law as it stood on 11 October 1988 would not do justice (or as much justice) as the law on the following day; and on that basis adjourned the trial. We consider that it must follow that what the magistrates were doing was to pass a qualitative judgment on the existing law and finding it wanting in justice (or sufficient justice) acted as they did. They were therefore doing essentially the same thing as the magistrates did in R v Boteler, namely choosing not to apply the law in force on the basis that they considered that it was lacking in justice. The fact that they did so because they preferred the law as it would be on the following day seems to us to be neither here not there, for the fact remains that the trial did not proceed because the magistrates felt that the law in force on the day fixed for it would not do proper justice. That in our view is not a legitimate basis for ordering an adjournment."
"The wide discretion as to whether to grant an adjournment conferred by section 10 and section 54 of the Magistrates' Court Act 1980 cannot, usually, be impugned. But it is a power which must not be exercised in a manner which undermines the statute under which the proceedings are brought or in a way which deprives a litigant of rights conferred by that statute. An adjournment cannot be granted if the only purpose is to avoid the consequences which the law provides will follow, should the hearing continue."
This passage was referred to with evident approval by Lord Lloyd of Berwick in Lovell. It is true that it was not referred to in any of the other speeches, but it is entirely consistent with what was said by the other members of the House of Lords and in our judgment it is a correct statement of principle.
"To this the sole exception is that the application may be adjourned for a short time to afford to the mortgagor a chance of paying off the mortgagee in full or otherwise satisfying him; but this should not be done if there is no reasonable prospect of this occurring. When I say the sole exception, I do not, of course, intend to exclude adjournments which in the ordinary course of procedure may be desirable in circumstances such as temporary inability of a party to attend, and so forth."
"Where a lessor is proceeding by action…to enforce against a lessee a right of re-entry or forfeiture in respect of any land for non-payment of rent, the following provisions shall have effect:- … (b) if … the court at the trial is satisfied that the lessor is entitled to enforce the right of re-entry or forfeiture, the court shall order possession of the land to be given to the lessor at the expiration of such period, not being less than four weeks from the date of the order, as the court thinks fit, unless within that period the lessee pays into court all the rent in arrear and the costs of the action…." (emphasis added).
"The view that I have formed is that, paying particular regard to section 191 of the County Courts Act 1959, the judge cannot be criticised for taking it into his own hands on the first occasion to adjourn the matter on the basis that he was not then in a position to be able to decide with any degree of accuracy the time which he would give to the lessee to fulfil the term relating to the rent, having regard to the additional factor that he could not impose a term of less than 28 days anyway."
"I do not believe that a judge can inevitably be criticised for not proceeding to judgment forthwith, for example, on the first occasion when the matter comes before him if something of materiality remains uncertain as a matter of evidence. To adjourn a case on virtually the same ground again is, however, I think impermissible. A judge, faced with the problems which confronted the judge here, should act strictly in accordance with the law as laid down in section 191 and give the plaintiff the relief which he seeks."
"The discretion with which we are concerned in this case is of an altogether different nature. It has nothing to do with the fact that the remedy claimed by Mr Lovell happens to be an injunction. It is the administrative discretion of the court to regulate its business and to decide when and in what order it will hear the cases which come before it. In the present case, District Judge Bolton exercised his discretion to refuse to hear Mr Lovell's interlocutory application in advance of the trial. The same question would have arisen if Mr Lovell and the council had commenced separate proceedings and Mr Lovell's application had come on first. Would the court have had a discretion to adjourn his application until it had heard the council's claim for possession?
The court has an inherent jurisdiction to regulate its business, but the power of the county court to adjourn proceedings is codified in Ord. 13, r.3(1) of the County Court Rules:
The court may at any time and from time to time, upon application or of its own motion, by order adjourn or advance the date of the hearing of any proceedings.
This would appear to confer a broad discretion which can be exercised in order, among other things, to ensure that related cases are heard in the order which justice and convenience requires. Obviously the discretion must be exercised judicially and not for the purpose of defeating the policy of the statute or the rights which it confers upon the tenant. So the question is whether Part V of the Act of 1985 expressly or impliedly excludes the ordinary discretion conferred by Ord 13, r. 3(1) and confers upon the tenant a procedural right to have his application heard as soon as he can bring it before the court.
There is certainly nothing in the Act which expressly confers such a right. The fact that the tenant may be entitled to an injunction at the time when he wants his application heard does not mean that he must be entitled then and there to have it determined. If such a right existed, the consequences would be extremely arbitrary: compare Reg. v Walsall Justices, Ex parte W.  1 QB 253. The substantive outcome of the tenant's application would depend upon the accidents of the court lists or a race to judgment between him and the landlord. It would be in the interests of the tenant to delay the hearing of an action for possession while he made his application for an injunction. Strictly speaking, it would be not so much a race to judgment as a race to execution of the judgment. Until the grant has actually been made, the tenant remains a secure tenant (see section 139(2)) and the action for possession can, in theory at least, continue. If there is some delay in completion (for example, because the tenant has difficulty in raising the money) the landlord may still be able to obtain his possession order and defeat the tenant's claim at the last minute. Mr Woolley rightly accepted this to be so. My Lords, I very much doubt whether Parliament could have intended the enforceability of the right to buy to depend upon such games of chance. It seems to me much more likely that the courts were intended to use their ordinary discretion, whether under Ord 13, r. 3(1) or the inherent jurisdiction, to hear the applications at whatever time and whichever order appeared just and convenient."
Power to adjourn after the court is satisfied that the landlord is entitled to possession
North British Housing Association v Lorraine Matthews
"A judge who adjourns the hearing of a ground 8 possession claim solely in order to allow a defendant an opportunity to defeat that claim, whether by extracting payment from the housing benefit authority or from any other source, is choosing not to apply the law in force at the date of the hearing on the basis that he considers it to be lacking in justice. This is simply not a proper exercise of judicial discretion. It is an interference with the statutory scheme which gives rights to both landlords and tenants. If the scheme gives rise to injustice it is for Parliament and not for the court to address that issue."
North British Housing Association v Michael Snaith
North British Housing Association v Laila Masood
London & Quadrant Housing Trust v Lee Morgan
"Mr Morgan made an arrangement with the landlords to start paying towards the arrears, and it was an agreed £5 per week. He has made a total of £45 payment. In addition to that, he has set up a standing order with his bank to pay £270 per month, the first payment going out on 1 May…."
He submitted that the judge should not follow the decision of Judge Platt, and continued:
"As I have said, I would not normally make a submission for that discretion [to grant an adjournment] to be exercised, other than in exceptional cases. I say this is exceptional for several reasons: the first is that the defendant has been making payment, and made an agreement; the second is that he has made an arrangement to start paying the current rent plus substantially more in any event so that the money would be regularly coming through; but, perhaps most important, he has submitted an application against the refusal of housing benefit, and it has not been determined."
"3. I am prepared for the sake of argument to accept that Mr Morgan's position is exceptional. It seems that he is a victim of, to say the least, maladministration on the part of the housing benefit authorities, and that as a consequence of that his position at these premises has been prejudiced insofar as had his benefit been handled properly, it may well be that his arrears would be less than the Ground 8 figure.
4. However, I am not persuaded, I am afraid, that I do have any discretion. The law, in my view, is properly summed up by His Honour Judge Platt in London & Quadrant Housing Trust v Ison in the Romford County Court. It is quite clear that within the Housing Act 1988, Section 8, Ground 8, the procedure for obtaining possession makes it clear that where there are arrears at the date of the hearing, at least eight weeks – and there were such at the date of service of the notice – the Court does not have a discretion, and that requests for adjournment in order to improve one's position by obtaining time to make payment is not a proper basis for granting an adjournment, whatever the Court's sympathies may be for a tenant. In this case, I have considerable sympathy for the Defendant. However, Parliament has decreed that where a landlord is able to prove the arrears under Ground 8, then possession has to be granted. On that basis I do not consider that I have jurisdiction to grant the adjournment sought, and therefore the hearing will proceed."
"Further or in the alternative, where it was arguable that on the date of the hearing:
(i) the appellant was the victim of maladministration by the housing benefit authority;
(ii) if the appellant's housing benefit claim had been processed correctly his arrears would be less than the amount required to establish ground 8;
(iii) the respondent was a registered social landlord;
(iv) the respondent was aware of (i) and (ii) above; and
(v) a failure to adjourn the claim for possession would lead to a possession order being made under ground 8;
the judge should have adjourned the claim for possession on the basis that in the above circumstances:
(a) the decision of the respondent to proceed with the possession claim was arguably irrational and/or otherwise unlawful, and/or
(b) the respondent being arguably a functional public authority, an order for possession would be a breach of the appellant's article 8 rights under the Convention."
"Possession proceedings for rent arrears should not be started against a tenant who can demonstrate that they have (1) a reasonable expectation of eligibility for housing benefit; (2) provided the local authority with all the evidence required to process a housing benefit claim; (3) paid required personal contributions towards the charges. Associations should make every effort to establish effective ongoing liaison with housing benefit departments and to make direct contact with them before taking enforcement action. A certificate should be obtained, if possible, to confirm that there are no outstanding benefit enquiries, according to Department of Work and Pensions good practice guidance."