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Cite as: [2008] EWCA Civ 196

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Neutral Citation Number: [2008] EWCA Civ 196
Case No: B5/2007/0079


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :



- and -

Shepherds Bush Housing Association


(Transcript of the Handed Down Judgment of
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Miles Croally (instructed by Messrs Oliver Fisher) for the Appellant
Michael Singleton (instructed by Messrs Prince Evans) for the Respondent
Hearing date : 29 January 2008



Crown Copyright ©

    Lord Justice Pill :

  1. This is an appeal against the decision of His Honour Judge Simpson, sitting at West London County Court, whereby he dismissed an appeal by Mr Oslo Porter ("the appellant") against a decision of District Judge Nicholson made on 16 June 2006. The District Judge dismissed an application by the appellant under Section 85(4) of the Housing Act 1985 ("the 1985 Act") for "the suspended order dated 30 August 2000 to be considered for discharge or rescinded". The basis of the application was that the appellant no longer owed arrears of rent to his landlords, Shepherds Bush Housing Association ("the respondents"). Permission to bring a second appeal has been granted on a consideration of the papers on the ground that important points of principle or practice arise.
  2. The appellant was granted a secure tenancy of Flat 3, 1 Bollingbroke Road, London W14 0AJ on 26 July 1983. He fell into arrears of rent and a suspended possession order was made against him on 18 August 1997, when the arrears were £2,338.40.
  3. The appellant failed to comply with the terms of the suspension and it is common ground that the secure tenancy terminated on 15 September 1997. Some arrears were paid off but new arrears then built up. The respondents obtained a warrant for possession. On 30 August 2000, District Judge Madge ordered that "the warrant hearin be suspended on condition that the defendant do pay current rent and £5.00 per week towards the arrears, the next payment to be made on or before 13 September 2000. The appellant also failed to comply with those terms.
  4. When he was about £1,400 in arrears of rent, the appellant, on 29 April 2004, issued proceedings against the respondent for damages for disrepair. In their defence, the respondents claimed that, because he had failed to comply with the terms of the suspended possession order, the appellant was no longer a tenant and could not claim damages for disrepair. The appellant then made, on 3 January 2006, the application which initiated the present proceedings. On 9 January 2006, a few days later, the appellant's rent arrears were paid off. On 2 February 2006, the disrepair claim was adjourned on the ground that the appellant's application to revive his tenancy had first to be determined. The application on 3 January 2006 was in relation to the order of 30 August 2000 but the appeal is in relation to the order of 18 August 1997 and has been conducted, at each stage, on that basis.
  5. The 1997 order provides:
  6. "The court has decided that unless you make the payments as set out in paragraph 3 you must give the plaintiff possession of Flat 3, 1 Bollingbroke Road, London W14 0AJ on 15 September 1997.
    You must also pay to the plaintiff £2338.40 for unpaid rent, use and occupation of the property and no order as to costs of making the application of possession.
    You must pay the plaintiff the total amount of £2338.40 by instalments of £5.00 per week in addition to the current rent. The current rent is £34.00 per week: The first payment of both these amounts must be made on or before 1 September 1997. When you have paid the total amount mentioned, the plaintiff will not be able to take any steps to evict you as a result of this order.
    If you do not pay the money owed and costs by the dates given and the current rent, the plaintiff can ask the court bailiff to evict you and remove your goods to obtain payment. This is called 'enforcing the order and money judgment'.
    Payments should be made to the plaintiff at the place where you would normally pay your rent. If you need more information about making payments you should contact the plaintiff. The court cannot accept any payments".
  7. At the hearing before the District Judge, the appellant appeared in person. The points now taken on his behalf were not taken before the District Judge.
  8. The District Judge held, it is agreed rightly (Thompson v Elmbridge BC [1987] 1 WLR 1425), that the secure tenancy came to an end with the failure of the appellant to comply with the terms of suspension. He held that it could not be revived but that the respondents could not obtain possession. The appellant was a tolerated trespasser as defined in Burrows v Brent [1996] 1 WLR 1448. The District Judge held himself bound by the decision of this court in Swindon BC v Aston [2003] HLR 42 in which Marshall v Bradford MDC [2002] HLR 22 was cited.
  9. Before Judge Simpson, the appellant, represented by Mr Croally, as he was before this court, sought to rely on CPR 3.1. The judge dismissed the appeal on the ground that the point had not been taken before the District Judge and that, even if it had been taken, Part 3.1 was not appropriate or apt for use on the present facts.
  10. Before this court, the further point is taken that decisions of this court, treated as binding, were decided per incuriam because earlier authority and CPR 3.1 were not cited. Consideration, initiated by the court, has also been given as to the effect on the appellant's position, of Article 8 of the European Convention of Human Rights ("the Convention"), following the Human Rights Act 1998 ("the 1998 Act"). Because of the manner in which the point arose, I propose to deal with it separately in this judgment.
  11. Mr Croally readily accepts that this court is apparently bound by Marshall and by Aston and the appellant seeks relief on the grounds set out in paragraphs 8 and 9. Recent decisions of this court are not binding, it is submitted, because they were inconsistent with the earlier decision of the court in Payne v Cooper [1958] 1 QB 174. This court is entitled and bound to decide which of two conflicting decisions of its own it will follow (Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718 at 729 per Lord Greene MR). We are prepared to consider these points even though they were not taken before the District Judge, or, in relation to Payne, before either Court below. The case has been conspicuously well argued on both sides.
  12. Section 82 of the 1985 Act provides, in so far as is material:
  13. "(1) A secure tenancy which is either-
    a weekly or other periodic tenancy, or
    a tenancy for a term certain but subject to termination by the landlord,
    cannot be brought to an end by the landlord except by obtaining an order of the court for the possession of the dwelling-house or . . .
    (2) 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. "
  14. Section 85 provides, in so far as is material:
  15. "(1) Where proceedings are brought for possession of a dwelling-house let under a secure tenancy on any of the grounds set out in Part I or Part III of Schedule 2 (grounds 1 to 8 and 12 to 16: cases in which the court must be satisfied that it is reasonable to make a possession order), the court may adjourn the proceedings for such period or periods as it thinks fit.
    (2) On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may-
    stay or suspend the execution of the order, or
    postpone the date of possession,
    for such period or periods as the court thinks fit.
    (3) On such an adjournment, stay, suspension or postponement the court-
    shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy (mesne profits), unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and
    may impose such other conditions as it thinks fit.
    (4) If the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession".

    Ground 1 mentioned in Section 85(1) is non-payment of rent lawfully due.

  16. The effect of the possession order in the present case was that possession was postponed provided the appellant made the payments required by the order. It followed from the failure to comply on 15 September 1997 that the secure tenancy terminated. However, when, on 9 January 2006, rent arrears were paid off, the respondents were no longer able to take steps to evict the appellant under the order. In Marshall it was held that, when the arrears were paid, the order ceased to be enforceable by warrant of possession but the secure tenancy did not automatically revive. In Aston, it was held that, once the arrears were paid off under the terms of the suspended possession order, the appellant subject to the order could no longer apply to postpone the date of possession under Section 85(2) of the 1985 Act. Nor could he apply to rescind the order under Section 85(4) because, as in the present case, he had not complied with the conditions attached to the possession order by virtue of Section 85(3).
  17. Section 85(2) thus permits a court making an order for possession to postpone the date of possession so that the statutory limitation upon the common law power to postpone recovery of possession does not apply. In this case, the court suspended the execution of the possession order on condition, which the court was obliged to impose by reason of Section 85(3), with respect to the payment by the tenant of arrears of rent. On the authorities binding on the court, and subject to the new submissions made, it followed from the failure to comply with conditions on 15 September 1997 that the secure tenancy terminated. When, on 9 January 2006, rent arrears were paid off, the respondents were no longer able, under the terms of the order, to take any steps to evict the appellant under the order. However, because the appellant had not complied with the conditions imposed in the possession order under Section 85(3), he could no longer apply to postpone the date of possession under Section 85(2) nor could he apply to discharge or rescind the order under Section 85(4) which permits that action only if the conditions have been complied with. So construed, the authorities create what in London & Quadrant Housing Trust v Ansell [2007] HLR 37, Chadwick LJ called a "trap" for former tenants who pay what the order requires without first making an application to vary the order by postponing the date of possession.
  18. It is necessary to consider recent authorities to demonstrate how this situation has arisen. The possession order in the present case was for material purposes, in the same form as that in Marshall where it was held that, when the arrears were paid, the order ceased to be enforceable by warrant of possession but the secure tenancy did not automatically revive. Chadwick LJ, at paragraph 29, cited the speech of Lord Browne-Wilkinson in Burrows at 1454-5:
  19. "In my judgment little guidance is to be obtained from the cases where a tenant holds over after the termination of an ordinary tenancy where there is no possibility that the expired tenancy can revive. The position in relation to secure tenancies is sui generis. In my judgment, the agreement can and should take effect in the way the parties intend, i.e. it is an agreement by the landlords that, upon the tenant complying with the agreed conditions, the landlords will forbear from executing the order, i.e. from taking the step which would finally put an end to the tenant's right to apply to the court for an order reviving the tenancy. There is no need to impute to the parties an intention to create a new tenancy or licence: 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".
  20. Having found that the order in Marshall did not "have the effect of reviving the tenancy which has been brought to an end during the period that the order for possession was enforceable", Chadwick LJ considered the effect of the last paragraph of the order which read: "and also that the judgment shall cease to be enforceable when the [arrears of rent, mesne profits and] costs referred to above are satisfied". Chadwick LJ stated, at paragraph 37:
  21. "Nor can the final paragraph of the order of 27 January 1989 be treated as an order under section 85(4) of the 1985 Act; that is to say, as an order discharging or rescinding the order for possession. There are three reasons why the paragraph cannot have that effect. First the paragraph does not, in terms, purport to discharge or rescind the order for possession. Second, in a case whether the secure tenancy has been brought to an end under the provisions of section 82(2) of the Act, section 85(4) does not, of itself, empower the court to discharge or rescind the order for possession. The power to discharge or rescind conferred by section 85(4) of the Act arises only "if the conditions are complied with". In that context, "the conditions" must be a reference to the conditions (if any) imposed – either initially or by way of variation – under section 85(3) in the existing possession order. In a case where the secure tenancy has come to an end under section 82(2), either there will have been no conditions, or ex hypothesi, the conditions will not have been complied with. The point is recognised by Lord Browne-Wilkinson in the Burrows case (at page 1455G) Third, when the court made the order on 27 January 1989, it could not know whether, at the date (if any) when the sum of £574.60 was subsequently satisfied, the condition as to the punctual payment of instalments of £1.70 per week – or, indeed the condition as to the punctual payment of current rent – would have been complied with. The power to discharge or rescind the order for possession, conferred by section 85(4) of the 1985 Act, is a power which can only be exercised in the light of the circumstances prevailing at the time. It cannot be exercised in advance; because the court cannot know, in advance, whether the conditions precedent in the exercise of the power will be satisfied."
  22. Marshall was followed in Aston. In an order in similar form, Pumfrey J, with whom Jonathan Parker LJ and Schiemann LJ agreed, stated, at paragraph 20:
  23. "What is the effect of the final paragraph of the order, "that the judgment shall cease to be enforceable when the (arrears of rent, . . . and) costs referred to above are satisfied?" In my view, this means what it says. If the arrears of rent and the costs are paid, the order ceases to be enforceable by warrant of possession."
  24. Pumfrey J continued:
  25. "If a further warrant of possession against the tolerated trespasser is sought, it might be thought that his only hope is to try to revive the tenancy by an application under Section 85(4). But it seems to me that an application under Section 85(4) is precluded, since the conditions attached to the 1991 order were not complied with. In Marshall, Chadwick LJ, with whom Schiemann LJ and Sir Christopher Staughton agreed, decided that the reference to "conditions" in Section 85(4) was a reference to the conditions (as varied from time to time under Section 85(3)) upon which the order for possession was suspended. Thus as Miss Recorder Ralphs correctly held, Mr Aston could not apply to have the order rescinded under Section 85(4). So far as Section 85(2) was concerned, an application to postpone the date of possession was not possible since the order had ceased to be enforceable".
  26. Aston was followed in Ansell. Chadwick LJ held:
  27. 1) the secure tenancy did not revive when the money due under the original order was paid (paragraph 33);

    2) the secure tenancy could not be revived by an order under section 85(4) because the conditions imposed under Section 85(3) had not been complied with (paragraphs 34 and 52); and

    3) the powers under 85(2) cannot be exercised once a possession order ceases to be enforceable on payment of all monies due thereunder (paragraphs 35 and 52).

  28. Leave to appeal to the House of Lords has been granted in Knowsley Housing Trust v White [2007] 1 WLR 2897, a case in which the effect of Burrows was considered in this court (paragraphs 16 to 18 and 40) and, more recently, leave to appeal has been granted in Ansell. It may be added that in Bristol CC v Hassan [2006] 1 WLR 2582, this court recommended the use of an order for possession in different terms, which may avoid some of the problems arising from orders such as the present. I also add that in White, Buxton LJ, at paragraph 39, stated that the merits of the former tenant's position "are not immediately obvious in policy terms". By way of example, the landlords in the present case were, for many years, kept out of rent due to them.
  29. Payne v Cooper

  30. The appellant seeks to rely on the decision of this court in Payne v Cooper [1958] 1 QB 174. The case concerned the proper interpretation of Section 4(2) of the Rent and Mortgage Interest Restrictions Act 1923 ("the 1923 Act"), the provisions of which are at least similar to those of Section 85 of the 1985 Act:
  31. "At the time of the application for or the making or giving of any order or judgment for the recovery of possession of any such dwelling-house, or for the ejectment of a tenant therefrom, or in the case of any such order or judgment which has been made or given, whether before or after the passing of this Act, and not executed at any subsequent time, the court may adjourn the application, or stay or suspend execution on any such order or judgment, or postpone the date of possession for such period or periods as it thinks fit, and subject to such conditions (if any) in regard to payment by the tenant of arrears of rent, rent, or mesne profits and otherwise as the court thinks fit, and, if such conditions are complied with, the court may, if it thinks fit, discharge or rescind any such order or judgment".
  32. The issue in that case, as stated by Lord Evershed MR at pages 184-185, was whether it was "within the competence of the court, when an absolute order (so-called) has been made but not executed, to convert it in effect into a conditional order by the process . . . of making a subsequent order postponing the date of possession upon conditions, and thereby inevitably, as I think, giving rise to the power contained in the last two lines of the sub-section, upon satisfaction of the conditions, to discharge the original order for possession".
  33. Lord Evershed stated, at page 185:
  34. "The remaining point is one of a strictly technical character, and it may be stated thus. The last two lines of the subsection are: "and if such conditions are complied with, the court may, "if it thinks fit, discharge any such order." As a matter of English, at first sight it might be said with force that it is only when the conditions have been in fact complied with that that power arises, and may be invoked. In the present case it will be recalled that the judge combined all the operations into one order. He added at the end: "and upon such payment" - that is to say, if such payment is made - "then the order for possession shall be discharged." Mr. Dunn, [Counsel for the landlord] not unnaturally, has not felt very anxious to press this point because, if it was successful, the only possible consequence would be another application, the result of which would be inevitable, and costs would be expended to no useful purpose; but he has assisted the court by putting the point as I have tried to express it.
    Upon a very strict reading of the subsection, there is obviously much to be said for that view. But I think the answer to it is that in practice the sanction of this court must now be taken to have given affirmation to the way in which the judge in this case exercised the power. For the practice I turn to the county court forms, particularly Form 138 [in Appendix A to the County Court Rules, 1936], at page 617 of the County Court Practice, 1957. That form is an order for recovery of a certain sum of money for arrears of rent and judgment for possession not to be enforced for a certain period so long as punctual payment is made. Then at the end of the order we find: "And it is further ordered that the judgment" (singular or plural) "shall cease to be enforceable when the arrears of rent mesne profits and costs referred to are satisfied." The form is no doubt slightly different from that in the present case, but the substance is the same - that is to say, by this form of order the court is proleptically exercising the power of discharge which the last two lines confer; no suggestion has been made of any other source of the power contained in the last line of the order".
  35. Lord Evershed added, at page 186:
  36. "No doubt it will be relatively rare when an absolute order for possession has been made, for another judge then to convert it into something quite different not only in language but intent. The present case is, I think, somewhat exceptional. I have already said that the judge plainly took a somewhat different view of the occupier and his conduct from the view which the Deputy Judge [who had made the absolute order] had taken. I think that the power under this sub-section to convert an order made by a competent court into something really different in intent and scope is a power that will naturally be somewhat sparingly exercised. But in this case no point is taken on that matter. The question being strictly an exclusively one of jurisdiction, I have given my reasons for thinking that the County Court Judge had jurisdiction to make this order . . . "
  37. Lord Evershed stated that the judge whose order was under appeal had taken "a much more favourable view of the occupier" than had his predecessor. The occupier was 78 years old and enjoyed his garden. Lord Evershed also commented on the decision taken by the landlord. Romer LJ, agreeing with Lord Evershed, understood the landlord's submission to be that discharge or remission of an order could only apply where the original order was not absolute but was in a suspended or conditional form (page 187). Ormerod LJ agreed with both judgments.
  38. A factual distinction from the present case is that the original order was unconditional, whereas the possession order in the present case was conditional. The two sections are differently worded in that, while Section 4(2) of 1923 Act empowers the court suspending execution to impose conditions, Section 85(3) of the 1985 Act requires the court to impose conditions with respect to payment of arrears of rent, save where to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable,
  39. Payne was applied by His Honour Judge MacKay in the Liverpool County Court in Helena Housing Ltd v Eleanor Mower & Peter Molyneux (unreported, 28 November 2007). (The transcript of the judgment has been supplied to the court by counsel for the respondents since the hearing of the appeal). Having referred to the substantial similarities between the system under the Rent Acts and that under the Housing Act, and to the difficult problem with which he was confronted on production of Payne, the judge decided to apply Payne and find for the former tenant. The judge stated, at paragraph 35:
  40. ". . . the taking of the view in Marshall has resulted in what could be described as a perversion of the existing law whereby the Act of Parliament is being disregarded in the way that Stanley Burnton J thought it was, and yet there is a clear decision of the Court of Appeal which avoids that logical necessity to go down that unsatisfactory road".

    (Agreeing with Chadwick LJ in Ansell, Stanley Burnton J had stated at paragraph 62 that "the legislation and authority compelled the stark and unsatisfactory choice between perpetual irremovability and unqualified security. I do not think that was what Parliament would or should have intended").

  41. This court has to decide whether to follow Marshall, and the cases which have followed it, or Payne. The position in relation to secure tenancies is sui generis, as Lord Browne-Wilkinson stated in Burrows. The regime is undoubtedly different from that with which the 1923 Act, with its extended discretion, was concerned, but I would not accept that as a conclusive reason for construing differently two statutory provisions to the same effect. I am, however, influenced by the focus of the court in Marshall upon the issue now to be decided whereas the focus in Payne was on the different question whether an unconditional order could be converted into a conditional order. That could not arise under Section 85 of the 1985 Act because there is an obligation on the court in Section 85(3) to impose conditions with respect to the payment of arrears of rent, subject to the exceptions stated in the sub-section. A court applying the proviso would be expected at least to say that it is applying the proviso, in circumstances specified in the sub-section. The emphasis in Payne was not on the requirement that the conditions were complied with but whether, at the later stage, conditions could be imposed at all.
  42. While such matters should not, of course, affect the decision of a court about its own jurisdiction, Lord Evershed's reference to non-jurisdictional matters may, with respect, have had some influence on the decision in Payne. Lord Evershed recognised the exceptional nature of the power he found to exist and saw fit to refer to the favourable view taken by the judge of the occupier, to the limited consequences in Payne of a finding against the occupier and to the diffident manner in which this "technical" point had been taken on behalf of the landlord.
  43. To the contrary, in Marshall, the court concentrated upon the wording of the statute and the reasoning of Chadwick LJ is, with respect, careful and persuasive. The same can be said about the reasoning of Pumfrey J in Aston. The power to discharge or rescind conferred by Section 85(4) of the 1985 Act arises only "if the conditions are complied with", that is the conditions attached to the order.
  44. In the present case, the conditions as to the payment of arrears were not complied with, though, as Mr Croally points out, the effect of payments of arrears made in late 2005 and early 2006 meant that total arrears were paid at a date earlier than the date contemplated in either the August 1997 order or the August 2000 order. There were significant breaches of conditions over many years. On the merits, in so far as they may be relevant, the respondents submit that they were deprived for many years of the regular payments of rent on which their efficient operations, as with most landlords, depended.
  45. In my judgment, the court should follow and apply the recent decisions of the court rather than the 1958 decision.
  46. CPR 3.1(2)(a)

  47. CPR 3.1(2)(a) provides:
  48. "Except where these Rules provide otherwise, the court may –
    (a) Extend or shorten the time for compliance with any rule, practice, direction or court order (even if an application for extension is made after the time for compliance has expired;"
  49. Mr Croally submits that this provision empowers the court to substitute, in the third paragraph of the order of 18 August 1997, a provision that the total amount of arrears was to be paid by 9 January 2006 and to delete the requirement to pay by instalments. The date of payment was a date earlier than the date by which, under the 1997 Order, the total arrears were to be paid off. Since the sum was paid by that date, the protection against the plaintiff taking any steps to evict the appellant would be unnecessary and could now be deleted. The court would thereby be extending the time for compliance with a court order, permissible, it is submitted, under CPR 3.1(2)(a). If a retrospective extension of time is granted there is no breach of condition and the power to discharge or rescind the order in Section 85(4) of the 1985 Act can be exercised. The conditions imposed under Section 85(3) will, as revised, have been complied with.
  50. Counsel submits that if the court finds and declares a jurisdiction to extend time under CPR 3.1(2)(a), the case should be remitted to the District Judge to decide whether a discretion to extend time should be exercised and whether the earlier time requirement for the payment of rent should be amended as proposed. In considering whether to exercise discretion, the District Judge would consider all the circumstances including those set out in CPR 3.9(1). The power to extend time for compliance can be exercised because a change of circumstances has occurred, the change being that the appellant has paid off the arrears as described and the Aston "trap" should be avoided. If the District Judge acted as proposed, he could then exercise the power to discharge or rescind in Section 85(4).
  51. Mr Croally refers to cases in which the power in the sub-paragraph has been exercised to extend time. In Ropac Limited v Inntrepreneur Pub Company (CPC) Ltd [2001] L&TR 10, Neuberger J held that the sub-paragraph could be used to extend time for compliance with the terms of a consent order under which time had been stated to be of the essence. The obligation under the consent order was for a tenant to pay outstanding rent by a certain date in default of which there would be an order for possession. Neuberger J held that the court's case management powers did extend to such a power. Neuberger J stated, at paragraph 17:
  52. "First, it seems to me that the natural reading of rule 3.1(2)(a) and rule 3.9(1) is that, while the draftsman of the CPR may not have had in mind specifically a case such as this, the rules extend to it. Secondly, it would be very surprising if the court did not have power to extend time under an order such as this, ignoring for the moment the fact that the order is by consent and time is of the essence. If the court ordered that a litigant had to do something by a certain date, failing which its claim or defence would be struck out, and, as he left court, the litigant had an accident which rendered him incapable of doing anything for the relevant period, it would be most unsatisfactory if the court simply had no power to extend time. Thirdly, the court's case management powers, like all the other provisions of the CPR, have to be read in the light of the overriding objective; in that connection, the provisions of rule 1.2 are too well known for me to have to set them out. If the court had no power to extend time under an order such as that in the present case, ignoring, for the moment, that it was by consent and time was of the essence, it would scarcely comply with the overriding objective. Fourthly, there is no doubt that the court would have had power to extend time in relation to the December 2, 1988 order (if it had not been by consent) under the RSC, see the provisions of RSC Order 3, rule 5. It would be surprising if the more flexible of powers intended to be given to the court under the CPR resulted in the court now being powerless in relation to such an important aspect of its jurisdiction under the CPR."
  53. Giving the judgment of this court in Collier v Williams [2006] EWCA Civ 20, Dyson LJ endorsed the approach of Patten J in Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 170 (Ch) to the exercise of powers under CPR 3.1(7) ("A power of the court under these Rules to make an order includes a power to vary or revoke the order"). The appellant does not rely on paragraph 3.1(7) but submits that the same approach is appropriate under 3.1(2). Patten J stated, at paragraph 7:
  54. "It seems to me that the only power available to me on this application is that contained in CPR Part 3.1(7), which enables the Court to vary or revoke an order. This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ. It is therefore clear that I am not entitled to entertain this application on the basis of the Defendant's first main submission, that Mr Berry's order was in any event disproportionate and wrong in principle, although I am bound to say that I have some reservations as to whether he was right to impose a condition of this kind without in terms enquiring whether the Defendant had any realistic prospects of being able to comply with the condition."

    In endorsing that approach, Dyson LJ in Collier stated, at paragraph 40:

    "The power given by CPR3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under 3.1(7)."
  55. In Brick Farm Management Ltd v Richmond Housing Partnership Ltd (No 2) [2006] EWHC 1004 (Ch), Hart J was invited to employ CPR 3.1(2)(a) to vary the time within which a counter-notice could be served under the Leasehold Reform, Housing and Urban Development Act 1993. The counter-notice had not been served by the date specified in a court order. Hart J stated, at paragraph 38:
  56. "I do not wish to say anything that would unnecessarily circumscribe the width of the case management powers given to the court under CPR3.1. I do however accept Mr Radevsky's submission that the order made by Stanley Burnton J is not a court order of the kind which is contemplated by CPR 3.1(2)(a). It was in no sense a case-management order. The order was made in the terms it was because the statute required the court to specify a date in the order. Having complied with that statutory requirement and made the other declarations which the statute required the court to make, the court's function under the statute was exhausted as far as the application before it was concerned. There was nothing left to manage. If the defendant was unhappy with the order which the court made, as indeed it was, its remedy was to appeal that order."
  57. Reliance is placed by Mr Croally on the speech of Lord Browne-Wilkinson in Burrows, at page 1455G:
  58. "Finally, there is a method (albeit a clumsy one) whereby the order for possession even if an immediate unconditional order, can be discharged or rescinded if so desired under section 85(4). The power in that subsection to discharge or rescind only arises "if the conditions are complied with," a requirement which cannot be satisfied in the case of an unconditional order. But there is no reason why the order cannot be discharged by consent or, if such consent is not forthcoming, by the court varying the original order so as to impose the agreed conditions and then discharging the varied order".
  59. For the respondents, Mr Singleton submits that the limitation of CPR 3.1(2) to case management measures is confirmed by CPR 3.1(2)(m) which provides that the court may:
  60. "Take any other step or make any other order for the purpose of managing the case and furthering the overriding objective".

    CPR 3.1 bears the heading: "The court's general powers of management".

  61. I do not consider that CPR 3.1(2)(a) confers a power to extend time for compliance with the August 1997 order in present circumstances. A statutory scheme appears in the 1985 Act for the regulation of secure tenancies. The scheme makes provision for the suspension of a possession order on conditions (Section 85(2) and (3)). A court exercising the power to suspend can be expected to balance the respective interests of landlord and tenant at the time the order is made. The terms of the suspension will be determined by the court's view of the needs and merits of the particular situation. While the order remains in force, the occupier may apply to the court for a further period of suspension or for a variation of the conditions. The regular receipt of the sums due from the tenant (or occupier), and arrears, is likely to be an important consideration for the landlord.
  62. It would, in my judgment, be alien to the scheme to acknowledge a power under the rules to extend time when the object of the extension is to make possible the rewriting of a valid order of the court made under Section 85. The court was not misled, and was under no misapprehensions, in August 1997, when the conditions under Section 85(3) were imposed. It is not suggested that the conditions, with which the appellant is now dissatisfied, were other than reasonable when imposed. There was no appeal against the order.
  63. The change of circumstances relied on is a payment, by way of a lump sum or lump sums, of arrears of rent which the order required to have been paid regularly. This is not a change of circumstances of the kind contemplated by the court in Ager-Hanssen and Collier. Nothing has rendered the August 1997 order misconceived or inappropriate. No unforeseen facts or considerations have emerged. It is an attempt to rewrite a valid order and, in my judgment, CPR 3.1(2)(a) does not permit the court to take that course. What is proposed is very far from a case management measure.
  64. What was not foreseen was the construction subsequently placed by the courts on Section 85 of the 1985 Act. The appellant has put himself into a position in which he cannot, on the basis of the decision of this court in Aston, have the possession order discharged or rescinded. The emergence of that view of the law is not, in my view, a change of circumstances which permits the court to rewrite its earlier order.
  65. Equally, I do not, for the same reasons, consider there to be an inherent jurisdiction in the court to amend the August 1997 order retrospectively. The order complied with a statute which also provides an opportunity for amendment on application to the court. Nothing has arisen which permits the court under CPR 3.1 to rewrite the August 1997 order so as to give it a substantially different effect. The obligation to pay rent, and arrears, regularly under the order cannot be eliminated retrospectively. Further, the device contemplated by Lord Browne-Wilkinson of imposing agreed conditions as a means of avoiding difficulties is distant from the present facts.
  66. Mr Croally submits that the recent Court of Appeal decisions on this issue are per incuriam because CPR 3.1 was not considered. This court is not bound to follow them, it is submitted, because a rule which would have affected the decisions was not brought to the attention of the earlier courts. On the view I have taken on the CPR 3.1 issue, they are plainly not per incuriam on that ground. Even if the powers available to the court under CPR 3.1(a) are broader than I have envisaged, the per incuriam argument would fail on the basis stated by Sir John Donaldson MR in Duke v Reliance Systems Ltd [1988] QB 108. At page 113D, the Master of the Rolls stated:
  67. "I have always understood that the doctrine of per incuriam only applies where another division of this court has reached a decision in the absence of knowledge of a decision binding upon it or a statute, and that in either case it has to be shown that, had the court had this material, it must have reached a contrary decision. That is per incuriam. I do not understand the doctrine to extend to a case where, if different arguments had been placed before it or if different material had been placed before it, it might have reached a different conclusion." (Emphasis in original)

    Ralph Gibson LJ and Bingham LJ agreed with the judgment of the Master of the Rolls. The decision in Duke was upheld in the House of Lords ([1988] AC 618) but without reference to the per incuriam issue. I am far from persuaded that reference to CPR 3.1 must have led to a different result in the cases relied on by the respondents.

    Article 8

  68. During the hearing, a member of the court drew the parties' attention to the possible impact of Article 8 of the Convention on the present appeal. Post-hearing written submissions have been received from the parties. For the appellant, Mr Croally submits that while there is no extant possession order, the appellant's right to respect for his home is interfered with because, as a result of the operation of the 1997 order, the appellant is a trespasser with no security of tenure and no rights under a tenancy agreement. He will have no defence to a subsequent claim for possession.
  69. Article 8 provides:
  70. "(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
    (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
  71. Section 3 of the 1998 Act imposes a requirement: "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect [by courts] in a way which is compatible with the Convention rights". The distinction which has arisen, in Section 85 terms, between occupiers who have paid off all their arrears and occupiers who have not, in favour of those who have not, what Mr Croally describes in shorthand as the "Aston trap", is not necessary in a democratic society and it is possible to interpret Section 85 and CPR 3.1(2) so as to avoid it. The court should, it is submitted, take the opportunity to do so.
  72. For the respondent, Mr Singleton submits that Article 8 is not engaged because there is currently no threat to the appellant's continued occupation. As a tolerated trespasser, he has an enforceable right to exclusive occupation of the property and can maintain actions in trespass and nuisance (Pemberton v Southwark LBC [2000] 1 WLR 1672.
  73. In Kay v Lambeth LBC [2006] 2 AC 465, it was held that the right of a public authority landlord to enforce a claim for possession under domestic law would, in most cases, automatically supply the justification required by Article 8(2) for an interference with the occupier's right to respect for his home. The courts were to assume that domestic law struck the proper balance of the competing interests and was compatible with Article 8. However, a defendant could, exceptionally, show a seriously arguable case that the relevant domestic law was incompatible with the Convention.
  74. The earlier majority decision of the House in Harrow LBC v Qazi [2004] 1 AC 983 was explained. Lord Scott of Foscote noted, at paragraph 154, that Mr Qazi had taken his Article 8 complaint to Strasbourg where it was peremptorily dismissed as being manifestly ill-founded and inadmissible. Lord Hope of Craighead stated, at paragraph 106, that the sharp division of opinion which had emerged in the House as to the application of Article 8 in Qazi "could not have been put more clearly" to the Strasbourg court. Lord Hope continued, at paragraph 107:
  75. "I would draw the following conclusions. I think that it is reasonable to think that the court accepted that the applicant had established that the house was his home for the purposes of article 8 and that the enjoyment of his right to respect for his home was interfered with at least to some extent by the order for possession sought by the local authority. To that extent therefore there was an issue to be considered under article 8(2). But I think that it is reasonable also to think that the court was satisfied that the requirements of article 8(2) were so obviously met by the law which was applied in that case that there was, as Lord Millett put it in para 103, simply no balance left for the court to strike between the interference with the applicant's right and the legitimate aim that was being pursued by the local authority. As Lord Scott says, the obvious inference is that the Strasbourg court were satisfied that there was nothing more to be said in Mr Qazi's case. The tenancy had come to an end, and he no longer had any right to remain in occupation of the premises. His personal circumstances were irrelevant."
  76. In paragraph 108, Lord Hope added:
  77. ". . . There will be some cases of a special and unusual kind . . . where the interference with the right to respect for home which results from the making of a possession order will require to be justified by a decision-making process that ensures that 'some special consideration' (the words used in Connors [2004] 40 EHRR 189, para. 84) is given to the interests safeguarded by article 8. If there is such a defect the law will need to be amended to provide the necessary safeguards. But there will be many other cases where there are no special circumstances – where the person's right to occupy the premises as his home has simply been brought to an end by the operation of law and his eviction is necessary to protect the rights under the law of the landowner. . . . The interests safeguarded by article 8 will be sufficiently protected by the fulfilment of the formal requirements for the eviction laid down by the relevant statute or by the common law."

    Earlier in his speech, Lord Hope had referred to the discretion left to domestic courts by the European Court of Human Rights when regulating the circumstances in which protection of tenure is to be given (paragraphs 70 and 77, and also Connors, paragraph 83).

  78. I am very doubtful whether Article 8(1) is engaged at all in circumstances in which the appellant has an exclusive right of occupation and there are no possession proceedings against him. The court order sought to be revised does not involve a potential breach of Article 8, so that the need to strike a balance between Article 8(1) and Article 8(2) does not arise. If not now engaged, Article 8 would be engaged, in the manner stated by Lord Hope in Kay (paragraph 107), if a fresh possession order were to be made.  I would not exclude the operation of Article 8 on temporal grounds alone.  The rights are arguably engaged by the order of 16 June 2006 which denied, to a former tenant who had paid off his arrears, the opportunity to revive a secure tenancy.
  79. If Article 8 is engaged, Mr Croally makes the further submission that Section 85 of the 1985 Act and CPR3.1(2) should be read and given effect "in a way which is compatible with the Convention rights" (Section 3(1) of the 1998 Act). That submission does not in my view assist the appellant because, on an application of Article 8 as a whole, the Marshall and Aston constructions are compatible with Convention rights. It is not a situation in which the Payne construction is required to prevent incompatibility with Convention rights. As demonstrated in Kay, Article 8 has a very limited role in regulating the law which governs the relationship between landlord and tenant.
  80. It follows that Section 3 of the 1998 Act does not require the court to construe Section 85 in the Payne sense or to construe CPR 3.1(2) so as to empower its use to revise the 1997 order. It provides no basis for a finding that Marshall and Aston were decided per incuriam and does not disentitle the court from following its own decisions in those cases.
  81. I understand the criticisms which have been made, in this case and elsewhere, about the consequences which, on the current law, may follow the termination of a secure tenancy. Tempting though it may be to accept one or more of the appellant's submissions to find a way around the problems which have arisen, that course should not in my judgment be taken in this court and it might further aggravate the problems. It may be that a remedy can be found elsewhere by way of a comprehensive review of the situation.
  82. For the reasons I have given, I would dismiss this appeal.
  83. Lord Justice Sedley :

  84. There is in my view a difference of principle between the approach taken by this court in Payne v Cooper and the approach taken in the more recent Housing Act cases. Although the decisions concern different statutes, I am not at all sure that Marshall and Aston would have been decided as they were had Payne v Cooper been brought to the court's attention. But that is not the same thing as saying that the later cases were decided per incuriam, and at this late date I think the court has to follow its own recent jurisprudence, leaving it to a higher tribunal to say which approach is to be preferred, both as a matter of legislative intent and, now, in the light of the Human Rights Act 1998.
  85. Both the precarious status of a tolerated trespasser and its continuance even when all arrears are paid off seem to me plainly to engage Article 8(1) by markedly reducing the state's respect for the individual's home. Indeed I do not understand Mr Singleton to dispute this. The difficult issue arises under Article 8(2). The decisions of the House of Lords in Kay and Qazi stress the primacy of the legal right to possession in gauging the proportionality of an interference; but there seems to me even so to be a cogent argument that the legislation should be so construed, along the lines of Payne v Cooper, as at least to eliminate the Aston  trap, and that in any event the statutory powers and discretions are to be exercised conformably with Convention rights.
  86. The Human Rights Act will not, however, help Mr Porter in his present claim. The suspended possession order was made in August 1997, and the secure tenancy came to an end the following month when an instalment of arrears went unpaid. The order suspending the consequent possession warrant was made on 30 August 2000. The orders which are in issue before us were therefore in place before the coming into force of the Human Rights Act 1998 on 2 October 2000. It is only in proceedings brought by or against a public authority that the Act can have retroactive effect – section 22(4) – and, at least in the present state of the law, these are not such proceedings. But, for reasons I have touched on, I respectfully agree with Lord Justice Pill that the time bar would not affect the applicability of the Human Rights Act to the June 2006 order or any fresh possession order.
  87. For the present I can see no alternative, in the unsatisfactory jurisprudential situation in which the case comes before us, but to dismiss this appeal.  Like Lord Justice Pill, I would hope that the legal situation of tenants in Mr Porter's position can be comprehensively reviewed in the near future.
  88. I would leave open the question whether the statutory regime can be modified or supplemented by the case management provision of CPR 3.1(2)(a) or by the court's inherent jurisdiction. I agree with the other members of the court that it cannot avail Mr Porter.
  89. Lord Justice Longmore :

  90. In relation to a secure tenancy the question whether, after a typical order for possession has been made and suspended on terms of paying off arrears and continuing to pay current rent, it is automatically discharged by a late payment in full so that the secure tenancy revives, has been answered by this court in the negative. In Marshall v Bradford MDC (2001) EWCA Civ 594; [2002] HLR 22 this court, speaking through Chadwick LJ said (para 35) that in a case where, by virtue of section 82(2), the tenancy had come to an end, it could not be revived unless the conditions of the agreed order had been varied and the date of possession had been further postponed. Chadwick LJ also rejected an argument based on the final paragraph of the order for possession in that case which read
  91. "… the judgment shall cease to be enforceable when the [arrears of rent, mesne profits and] costs referred to above are satisfied."

    The tenant argued that that paragraph expressly provided for discharge of the possession order (and thus revival of the secure tenancy) once arrears, mesne profits and costs had been paid. Chadwick LJ rejected that argument (at para 37) because

    i) there was no express reference to discharge of the order in that paragraph;

    ii) once section 82(2) of the Housing Act 1985 applied to terminate the tenancy, section 85(4) required "the conditions of the order [to be] complied with"; if payment was made late the conditions had not been complied with;

    iii) the court could not know when it made the order whether the condition would be complied with so that the paragraph could not have been intended to operate as an automatic discharge of the order.

  92. Mr Croally submits that this reasoning is inconsistent with an earlier decision of this court on the comparable provision of section 4 of the Rent and Mortgage Interest Restrictions Act 1923, Payne v Cooper [1958] 1 QB 174. Skilfully as this argument was advanced, it is impossible to accept. In that case the order expressly provided that on payment of arrears and costs the order for possession should be discharged and the court held that by that form of order the court was proleptically exercising the power of discharge conferred by the last part of sub-section 4(2) of the 1923 Act which is the equivalent of section 85(4) of the current 1985 Act. It is true that this case does not appear to have been cited to this court in Marshall but even if it had been this court would probably have distinguished it on the basis
  93. i) that the word "discharge" was used in the order in Payne's case;

    ii) that there was no equivalent of section 82(2) in the 1923 Act; the regime introduced by the 1980 and 1985 Housing Acts is not the same as that utilised by the old Rent Acts;

    iii) that the earlier court did not consider the problems set out in the second and third reasons of Chadwick LJ in rejecting the argument.

    If, moreover, Payne v Cooper made any difference to the argument based on the form of order, Chadwick LJ's first reason for rejecting the revival argument, based as it was on the terms of the statute and, in particular, section 82(2) (which has no equivalent in the 1923 Act), still remains and binds this court to reject the argument of automatic revival.

  94. Even if all that is wrong and we are truly entitled to choose between prior inconsistent decisions of this court I would still prefer to follow the later decision. In the first place it is the more convincing decision but, secondly and more importantly, it does no service to those concerned with this difficult and technical area of the law if this court speaks with a divided voice. Once a matter has been argued and decided under a comparatively new statute (despite the discovery of other arguments or authorities which might have been, but were not, advanced), this court should follow the more recent authority unless it finds itself committed to a course of manifest injustice. I see no such injustice here. These considerations have even greater force if the later case has already been followed as it has in Swindon Borough Council v Aston [2002] EWCA Civ 1850; [2003] HLR 42 and London & Quadrant Housing Trust v Ansell [2007] HLR 37. The time has come for the revival point to be treated in this court as being settled and beyond the scope of further argument.
  95. Mr Croally then moved to discretion and relying on dicta in Burrows v Brent LBC [1996] 1WLR 1448 1455G per Lord Browne-Wilkinson submitted that this court could now, either in its inherent jurisdiction or by utilising CPR Part 3.1(2)(a), vary the terms of the possession order so as to provide that, if arrears of rent, mesne profits if any and costs were paid off in full at any time before the date on which the order for possession contemplated that final payment would be made, then the order for possession should be discharged.
  96. Counsel for the landlord submitted that there was no jurisdiction in the court to utilise CPR Part 3.1(2)(a) in this way nor any inherent jurisdiction and that anyway it was far too late for that power to be exercised.
  97. For my part I consider that such jurisdiction does exist at any rate in theory. Both Lord Browne-Wilkinson and Chadwick LJ contemplated that the court could vary the conditions of the order. I do not think, however, that this court should exercise that jurisdiction when no application was made to the District Judge. The question, therefore, is whether at this late stage the court should order a remission for the point to be taken, evidence to be deployed and a decision made. For the reasons given by Pill LJ, I do not consider that any such remission should be made now.
  98. Since the points discussed under Article 8(2) are academic in this appeal I would prefer not to express any opinion on them, especially as we had no oral argument upon them.
  99. In the event I agree that this appeal should be dismissed.

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