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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 >> Admiral Taverns (Cygnet Ltd) v Tracy Daly & Anor  EWCA Civ 1501 (25 November 2008)
Cite as:  L & TR 19,  1 EGLR 35,  CP Rep 17,  1 WLR 2192,  4 All ER 71,  WLR 2192,  EWCA Civ 1501,  48 EG 100,  10 EG 112
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE TEARE)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACOB
SIR WILLIAM ALDOUS
| ADMIRAL TAVERNS (CYGNET LTD)
|- and -
TRACY DALY & ANR
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Crown Copyright ©
Lord Justice Aldous:
"The Company appoints the caretaker to provide a caretaking service in respect of the above premises for the term in return for the payment. It is the intention of this agreement that a contract for service is created and no employee status between the parties exists."
Clause 6.6 was in these terms:
"The Caretaker will open the premises to allow potential purchasers or any agent of the Company requiring access to view the premises on being given 24 hours notice."
"The decision of HHJ Gibson was taken in the absence of the Defendant/Applicant notwithstanding that the Defendant/Applicant had informed the Court Office of his likely late arrival and had been reassured by the Court staff the case would not be called on before he arrived.
2. There is evidence that the Defendant/Applicant had the possession of the property under some form of agreement since 7 January 2008 and had spent money refurbishing the property. The Claimant/Respondent appears to say that the form of agreement relied upon is a forgery. However, there does not appear to have been a judicial determination of that issue, notwithstanding the comments made by the judge after he made his ruling and the Defendant/Applicant had arrived at court.
3. I consider that there should be a stay of execution and a warrant for possession pending the determination of the application for permission to appeal. Whether it is continued thereafter would be a matter for the Judge deciding the application for permission to appeal."
I need not read the other reasons.
"Restrict the discretion of the court in making orders for possession of land"
"89. Restriction on discretion of the court in making orders for possession of land.
(1) Where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in subsection (2) below, the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than 14 days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order.
2. The restrictions in subsection (1) above do not apply if --
(a) the order is made in an action by a mortgagee for possession; or
(b) the order is made in an action for forfeiture of a lease; or
(c) the court have power to make the order only if it considered it reasonable to make it;
(d) the order relates to a dwelling house which is the subject of a restricted contract (within the meaning of Section 19 of the 1977 Act); or (e) the order is made in proceedings brought as mentioned in Section 88(2) above."
It is important to realise that the exceptions in subsection (2) do not include cases relating to squatters, nor those relating to assured shorthold tenancies which have come to an end.
"Now I would say this at once about squatters. The owner is not required to go to the courts to obtain possession. He is entitled if he so desires to take the remedy into his own hands. He can go in himself and turn them out without the aid of the courts of law. This is not a counsel to be recommended because of the disturbance which might follow but the legality of it is beyond question."
Lord Denning went on to consider the remedy by action. At page 457F he said:
"Seeing that the owner can take possession at once without the help of the courts, it is plain that, when he does come to the courts, he should not be in any worse position. The courts should give him possession at once, else he would be tempted to do it himself. So the courts of common law never suspended the order for possession".
"In my opinion, therefore, when a tenancy has come to an end the landlord is not entitled to take possession except by order of the court: and, on making the order, the court has power to fix a date for possession. How then is this power to be exercised? It is a matter for the discretion of the court. But, in the ordinary way, where the defendant has no statutory right to remain, the usual order is from four to six weeks"
"My conclusion is that, when the owner of the house comes to the court and asks for an order to recover possession against squatters, the court must give him the order he asks. It has no discretion to suspend the order. But, whilst this is the law, I trust that owners will act with consideration and kindness in the enforcing of it -- remembering the plight which the homeless are in".
In that case the order was suspended pending the appeal.
"The phrases when just read like that are in the most general terms -- 'a court makes an order'. It appears to apply, on the face of it, to every court in the land, and neither I nor any judge in the Commercial Court or the Queen's Bench Division or the Court of Appeal can under any circumstances ever postpone any order for possession longer than six weeks from its making. I confess to finding the subsection perfectly astonishing and one which, I regret to say, I shall do my utmost to avoid reaching the conclusion that that is indeed what it means. But the words are there and are very wide. How can they be read?"
"I confess to finding the point puzzling. I started, as I observed, with a disposition to sense that the ordinary jurisdiction cannot have been intended to be so radically altered and cut down so as to restrict every court in this country, including the other part of the Supreme Court, the Court of Appeal, in its jurisdiction to limit orders for possession. I have no help from the text books which simply assume that the matter is a county court matter. I can, I think, take some help from the chapter heading of Part IV of the statute, and in the end, more by way of bold leap in the dark than by way of reasoned proposition, I assert that 'a court' in section 89 means a county court. I hold, therefore, that I have jurisdiction to make the order which I would certainly wish to make, and that is that Bain should continue in possession, provided they pay some substantial sums of money for at least three months and, if an appeal is made, should continue until the appeal is determined provided the conditions of appeal are observed."
"25. I regret I am unable to follow Harman J's leap in the dark. The wording of Part IV of the Housing Act 1980 and of section 89 are clear and in my judgment leave no room for the words 'a court' in section 89 to be construed as limited to a county court. No justification has been put forward for treating all possession orders made by the county court including those relating to commercial property as subject to section 89, whereas all High Court possession orders, even if made in relation to residential property, are not.
26. I am bound to follow the decision in Bain & Co v the Church Commissioners for England…, which I am told is the only authority on section 89, unless I conclude that it is clearly wrong. With respect to Harman J I have so concluded. In my judgment, section 89 applies equally to possession orders made in the High Court as it applies to orders made by the county court."
"The defendant was a member of a group of travellers who moved onto land owned by the claimant company. The company brought possession proceedings against them in the county court and obtained an outright possession order, enforceable forthwith.
The defendant applied for the execution of the order to be suspended. The district judge dismissed the application. The defendant appealed to a circuit judge, who dismissed her appeal. The defendant applied for permission to appeal to the Court of Appeal. She argued that the court had power to postpone the possession order either under s.89, Housing Act 1980, or as a result of her right to respect for her home and family life under Art. 8 of the European Convention on Human Rights."
"The issue on this renewed application for permission to appeal is whether the court has the power to give trespassers time to vacate when making an order for possession. It is conceded on behalf of the applicant that the law used to be that the court did not have such power, but it is said that it now does, either pursuant to the provisions of the Housing Act 1980 or else pursuant to the European Convention on Human Rights, at least where residential use is involved."
"7. The applicability of the reasoning from that decision [McPhail] through the county court, under what was then CCR Ord.26, was confirmed by the Court of Appeal Swordheath Properties Ltd v Floyd  1 All ER 721. The correctness of those cases was not challenged in the Privy Council case of Bibby v Partap  1 WLR 931, which confirmed the power of the court to grant a stay of execution in relation to a trespasser as part of its inherent jurisdiction in connection with an appeal process."
"9. As a matter of ordinary language, it seems to me that s.89 cannot assist the applicant. As the title to the section, which is reflected in the longer title to the 1980 Act, shows, the provision is concerned with cutting down the period from which the court can postpone the operation in law for possession. It is also clear from the negative terms in which the section is expressed. It is to my mind concerned with cases where the court has power to postpone and, in those cases, it is corrected to curtailing the exercise of that power. There is no reason to think that, by a side wind, the legislature intended to grant squatters rights which did not previously exist.
10. My view that McPhail remains good law is confirmed in the views of both the editors of the White Book and the Green Book […].
11. As if this was not enough, the four members of the House of Lords in the majority in Kay v Lambeth LBC  w WLR 570 all appear to assumed that McPhail remained good law […]
12. It was suggested by Mr Johnson that a decision of Stanley-Burnton J in Hackney LBC v Side by Side (Kids) Ltd  EWCA 1813 calls this conclusion into question. I do not agree. The importance of that case is that Stanley-Burnton J was invited to follow the decision in Bain & Co v Church Commissioners for England  1 WLR 24, where Harman J had reached the slightly idiosyncratic conclusion that s.89 did not apply to the High Court. I would take this opportunity of saying that, in my view, Stanley-Burnton J was plainly right. If the issue of whether s.89 could be relied on by someone who had always been a trespasser had been a point which could have been raised in the Side-by-Side case, it seems to me that it was not a point which was taken and therefore the decision does not assist the applicant in this case […]
14. In those circumstances it seems to me that the law remains as it was and that the district judge and the circuit judge reached the right conclusion. Although the point is of some interest, I regard the answer as clear. Furthermore, as a result of making this application, the applicant has had a fair amount of time before the order for possession can be executed. I would, for the reasons I have given, therefore dismiss this application for permission to appeal and discharge any stay of execution which has been granted."
"In considering which of those two possible constructions is the correct construction I have considered the consequences of both constructions. The Defendant's construction enables an appellate court which has either granted permission to appeal an order for possession or is still considering such permission to stay the order of possession until the appeal has been determined or until the application for permission to appeal has been determined. In an appropriate course that would be a sensible course to take because, if the appeal succeeds, the successful appellant will not in the meantime have lost possession of the premises. Conversely, the claimant's construction does not enable the appellate court to take that course save in very limited circumstances. Thus a tenant will be compelled to give up possession. If the property is then sold a successful appeal for the tenant will not result in the restoration of possession of the premises to him. This would appear to be an odd and unjust result; it is unlikely that such a result would have been the intention of Parliament."
"Under English law a court of first instance which grants relief, whether interlocutory or final, has an inherent power to suspend ("stay") its order until an appeal or would-be appeal to the Court of Appeal is disposed of. The Court of Appeal has a like jurisdiction. The existence of these parallel jurisdictions is assumed, and thereby confirmed, by RSC, Ord. 59, r. 13(1) […].
In the ordinary course an application for a stay should be made to the court of first instance. It is obviously convenient, and it is the usual practice, for the application to be made to the judge whose decision is sought to be appealed, and for the application to be made at the time judgment is given. If the judge refuses a stay as asked, or imposes unacceptable terms, the appellant or would-be appellant may renew his application of the Court of Appeal: see Cropper v Smith  24 Ch D 305. This is in accordance with [Wills of the Supreme Court, Order 59 rule 14 4] […].
These general principles are well established, and are as much applicable to possession orders, and to possession orders made under Rules of the Supreme Court Order, 113, as other orders. These principles are subject to contrary provision in any statute or rule. Order 113 contains no express contrary provision, nor is a contrary provision implicit. Justice may require that a possession order made under Order 113 should be stayed pending the hearing of an appeal. Order 113 is intended to provide a summary and speedy remedy. But this does not negative the need for the court to have a discretionary power to stay the carrying out of a possession order in suitable cases while an appeal is pending."
"That principle, and its correctness, are not in point in the present case. The principle is concerned with whether, regardless of any ground for appeal, the court has power to postpone the date on which the lawful owner may recover possession from a person who has unlawfully entered his land and remained there as a squatter. Those cases are not concerned with what are the court's powers if, a possession order having been made, a defendant seeks to appeal with a view to having the order set aside. Those cases do not bear upon the powers of the court in this situation. (Indeed, it is interesting to note that in McPhail the Court of Appeal stayed execution of the judge's order pending the hearing of the appeal.)"
"These principles are the subject of contrary provision in any statute or rule."
Lord Justice Jacob:
Lord Justice Tuckey:
Order: Appeal dismissed