![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Supreme Court |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Austin v Mayor and Burgesses of the London Borough of Southwark [2010] UKSC 28 (23 June 2010) URL: https://www.bailii.org/uk/cases/UKSC/2010/28.html Cite as: [2010] 35 EG 94, [2010] 3 WLR 144, [2010] UKSC 28, [2011] 1 AC 355, [2010] PTSR 1311, [2011] AC 355, [2010] 26 EG 90 |
[New search] [View without highlighting] [Printable PDF version] [Buy ICLR report: [2010] 3 WLR 144] [Buy ICLR report: [2011] 1 AC 355] [Buy ICLR report: [2010] PTSR 1311] [Help]
Trinity Term
[2010] UKSC 28
On appeal from: [2009] EWCA Civ 66
JUDGMENT
Austin (FC) (Appellant) v Mayor and Burgesses of the London Borough of Southwark (Respondent)
before
Lord Hope, Deputy President
Lord Walker
Lady Hale
Lord Brown
Lord Kerr
JUDGMENT GIVEN ON
23 June 2010
Heard on 21 and 22 April 2010
Appellant Jan Luba QC Desmond Rutledge (Instructed by Anthony Gold Solicitors) |
Respondent Richard Drabble QC Shaw Kelly (Instructed by Southwark Legal Services) |
LORD HOPE (with whom Lord Brown and Lord Kerr agree)
The issues
"In my judgment, once the defendant in proceedings of this kind where there is a suspended order for possession, ceases to comply with the conditions of the order, namely, 'the punctual payment of the current rent and arrears,' and there is a breach of the terms of the order, the tenancy, whatever it may be, from that moment comes to an end."
"However, the court's power to make an order postponing the date of possession is not restricted to exercise on the first application for an order for possession but may be exercised on the application of either party at any time prior to execution of that order and even after the secure tenancy has ended by reason of section 82(2). This is made clear by the words in section 85(2) 'or at any time before the execution of the order:' see also Greenwich London Borough Council v Regan, 28 HLR 469, 476, per Millett LJ. In such an event the secure tenancy is reinstated or revived subject to any conditions imposed under subsection (3)."
The statutory provisions
"(1) A secure tenancy which is either –
(a) a weekly or other periodic tenancy, or(b) 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 an order under subsection (3).
(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.
(3) Where a secure tenancy is a tenancy for a term certain but with a provision for re-entry or forfeiture, the court shall not order possession of the dwelling-house in pursuance of that provision, but in a case where the court would have made such an order it shall instead make an order terminating the tenancy on a date specified in the order and section 86 (periodic tenancy arising on termination of a fixed term) shall apply."
"(1) A secure tenancy which is either –
(a) a weekly or other periodic tenancy, or(b) a tenancy for a term certain but subject to termination by the landlord,
cannot be brought to an end by the landlord except as mentioned in subsection 1A.
(1A) The tenancy may be brought to an end by the landlord –
(a) obtaining –(i) an order of the court for the possession of the dwelling-house, and(ii) the execution of the order,(b) obtaining an order under subsection (3), or(c) obtaining a demotion order under section 82A.
(2) In the case mentioned in subsection (1A)(a), the tenancy ends when the order is executed."
"(1) Where proceedings are brought for possession of a dwelling-house let under a secure tenancy on any of the grounds set out in …. ([being] 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 any time before the execution of the order, the court may –
(a) stay or suspend the execution of the order, or(b) 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 –
(a) 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(b) may impose such other conditions as it thinks fit."
By para 3(2) of Part 1 of Schedule 11 to the 2008 Act the reference to mesne profits in section 85(3)(a) was omitted with effect from 20 May 2009.
The first issue
"There is a powerful case for saying that 'the date on which the tenant is to give up possession in pursuance of the order' in section 82(2) of the 1985 Act can, and therefore should, mean the date specified in a warrant of possession which is duly executed (or acted on by the tenant). Furthermore section 121 of the 1985 Act [circumstances in which the right to buy cannot be exercised] appears to me to be arguably inconsistent with the decisions in Thompson [1987] 1 WLR 1425 and in Hall [2006] 1 WLR 2116, in that it appears expressly to assume that a tenant who 'is', as well as a tenant who 'will be', obliged to give up possession pursuant to a court order, would remain entitled to pursue the right to buy, and only a person who is a secure tenant can have that right."
"I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act. … I think that however wrong or anomalous the decision may be it must stand and apply to cases reasonably analogous unless or until it is altered by Parliament."
In R v National Insurance Commissioner, Ex p Hudson [1972] AC 944, 966, on the other hand, he said that it might be appropriate to do so if to adhere to the previous decision would produce serious anomalies or other results which were plainly unsatisfactory. In Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309, para 31 Lord Steyn said that, without trying to be exhaustive, a fundamental change in circumstances such as was before the House in Miliangos v George Frank (Textiles) Ltd [1976] AC 443, or experience showing that a decision of the House results in unforeseen serious injustice, might permit such a departure. In Horton v Sadler [2007] 1 AC 307, para 29 Lord Bingham said that the power had been exercised rarely and sparingly but that too rigid an adherence to precedent might lead to injustice in a particular case and unduly restrict the development of the law. The House, he said, will depart from a previous decision where it appears right to do so.
The second issue
"The right to apply for a postponement of an order for possession is not an interest in land capable of being inherited. Further, the right to apply under section 85 is a right given to the tenant and in subsection (5) to the tenant's spouse or former spouse. Section 87 also gives a right to apply to a person who is qualified to succeed as a tenant under a secure tenancy. That section only applies where there is a tenancy in existence. That was not the case here. To be a tolerated trespasser of the kind contemplated in Burrows, the person must be a trespasser tolerated by the law. The appellant was not such a person. In my view, there is no right given to a person in Miss Knightley's position to apply to revive a tenancy and no tenancy existed at the time when her mother died."
"Aldous LJ, with whom the other members of the court agreed, said in terms that the right was 'incapable of being transmitted'. That conclusion applies to transmission by will or on intestacy just as much as any other transmission eg by assignment between living persons."
What Aldous LJ actually said, in the passage which I quoted in para 35, was that the right was not "capable of being inherited". There is an important distinction between these two phrases. Had Aldous LJ appreciated that the question which is really at issue here is whether the right is capable of being "transmitted", not whether it is capable of being "inherited", he might perhaps have arrived at a different answer. The right to apply to the court for the exercise of the powers that are given to it by section 85(2) is a right conferred by the statute. So the answer to the question whether the right can be exercised after the tenant has died is to be found by construing the statute. It does not depend on whether it is thought to be a right that is capable of being inherited at common law.
Conclusion
LORD WALKER
LADY HALE