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England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [1975] EWCA Civ 8, [1976] QB 503

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Neutral Citation Number: [1975] EWCA Civ 8
Case No.:

Appeal by defendant from judgment
of His Honour Judge Fife on 18th November 1974
at Bromley County Court.

Royal Courts of Justice.
17th October 1975.

B e f o r e :




OLIVE A. FOX (spinster)


(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters, Ltd.,
Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W.C. 2.)


Mr. R, SEYMOUR (instructed by Messrs. Straker Holford & Co)
appeared on behalf of the Appellant Defendant.
Mr. S. STEVENS and Mr. F.P. ANGELA (instructed by Messrs. Clintons)
appeared on behalf of the Respondent Plaintiffs.



Crown Copyright ©

    THE MASTER OP THE ROLLS: So far as we know, Jack Wright was a bachelor and Olive Agnes Pox was a spinster, who met forty years ago and lived happily ever after. They lived together as man and wife. She took his name and was known as Mrs. Wright. In 1940 they were bombed out and went to live at 3 Old Road, Lewisham. The rent book was in the name of Mr. J. Wright. They both went out to work and used their earnings to run the house. In every respect they were man and wife save that they had not gone through a ceremony of marriage.

    After 21 years in the house, on 28th August, 1961, Mr. Jack Wright died. She remained on in the house and paid the rent, using the name Mrs. Wright. The rent book remained in the name of "J. Wright", and the records of the landlord still showed the tenant as "J. Wright".

    I expect that the ownership changed hands from time to time, but in March 1973 the owners were a property company - Dyson Holdings Ltd. By this time Mrs. Wright (as she was known) was herself getting on in years. She was 73. She wrote to the landlords asking for a statement of the weekly rent. She signed herself "O.A. Wright". This put the property company on inquiry. They asked their agents to call on the house. She told them that Mr. Jack Wright died on 28th August, 1961, and that she was his widow. The property company asked their agents to check up on the electoral roll. They did so. They found that she had given her name there as "Olive Pox". The property company inferred that she was not really his widow. If she had been his widow, she could, of course, have had protection under the Rent Acts. But, if she was not his widow, they thought they were entitled in law to get her out. So on 27th March, 1973, they wrote to her:-

    "We are addressing you as Mrs. O. Wright, although we under stand from the electoral register that the person in occupation is Olive Pox, and perhaps you would explain this in your reply. Until this matter is clarified, we are unable to accept any rent."

    So after all those years, the truth was out. She was not his widow. She was only a woman who had lived with him as his wife for 21 years. The property company refused to receive any rent from her and brought proceedings against her for possession on the ground that she was not protected by the Rent Act. She had, they said, no tenancy and was a trespasser. They had accepted the rent from her, not knowing that the tenant had died. As soon as they discovered it - and that she was not his widow - they were entitled to possession. The Judge accepted their argument. He held that he was bound by the decision of this Court in Gammans v. Ekins (1950) 2 K.B. 328. It was sad, he said, to have to turn this lady of 74 out: but felt he had no alternative. He ordered her out in 28 days. She appeals to this Court.

    Ever since 1920 the Rent Acts have protected a "member of the tenant's family" in these words:-

    "The expression 'tenant' includes the widow of a tenant who was residing with him at the time of his death, or when a tenant leaves no widow, or is a woman, such member of the tenant's family so residing as aforesaid as may be decided in default of agreement by the County Court."

    So in the present case the lady is protected if she was a "member of the tenant's family": but not otherwise. Those words have often been considered by the Courts. The cases are collected in Megarry on the Rent Acts, pages 2114,-6. The word "family" in this statute is not used in any technical sense: but in a popular sense. It is not used in the sense in which it would be used by a studious and unworldly lawyer, but in the sense in which it would be used by a man who is "base, common and popular", to use Shakespeare's words in Henry V, Act IV, Scene I; quoted by Sir Raymond Evershed, Member of the Rolls, in this context in Langdon v. Horton (1951) 1 K.B. at page 669; or in modern words, by the ordinary man in the street, see Brook v. Wollams (1949) 2 K.B. at page 308 by Lord Justice Cohen.

    Applying this test, there are two cases in this Court which are near to the present. The first is Gammans v. Ekins (1950) 2 K.B. 329, but more fully in (1950) 66 T.L.R. (Part I) 1139. A dwelling-house was let to a Mrs Smith. A man named Ekins went to live in the house. He lived for a very long time, 20 years or so, in close but unmarried association with Mrs. Smith. He adopted her name and posed as her husband. In 1949 she died. Mr. Ekins claimed that he was a member of her "family". The County Court Judge held that he was. This Court held that he was not. Lord Justice Asquith said that:

    "To say of two people masquerading, as these two were, as husband and wife (there being no children to complicate the picture) that they were members of the same family, seems to be an abuse of the English language."

    The other case is Hawes v. Evenden (1953) 1 W.L.R. 1169. A dwelling-house was let to a Mr. Randall. He lived there with a Miss Evenden. For 12 years they occupied the same house as man and wife, though they were not married, and two children had been born of the association. She kept her own name - Evenden - but the children used the name Randall. He died. She claimed to be a member of the tenant's family. The County Court Judge held that she was. This Court upheld his decision. Lord Justice Somervell said:

    "Where the evidence justifies a finding that they all lived together as a family, then I think the mother is a member of the family."

    If both those cases were rightly decided, it seems to follow that an unmarried woman (who has lived with a man as his wife for many years) is a "member of the tenant's family" if she has children by him: but she is not a member of his family if she has no children. That means this: If the couple had a baby 19 years ago which died when a few days old, or as a young child, the woman would be a "member of the tenant's family"; but if the baby had been still-born, or if the woman had a miscarriage 19 years ago, she would not be a member of his family. Yet for the last 19 years they had lived together as man and wife. That seems to me a ridiculous distinction. So ridiculous, indeed, that it should be rejected by this Court: and that we should hold that a couple who live together as man and wife for 20 years are members of the same family, whether they have children or not.

    But, is this Court at liberty to reject the distinction? Are we bound by Gammans v. Ekins (1956) 2 K.B. 328? That case can be distinguished on narrow grounds, such as that the woman was the tenant and not the man, or that their relationship might perhaps have been platonic. But I dislike the device of distinguishing a case on narrow grounds. I prefer to say, as I have often said, that this Court is not absolutely bound by a previous decision when it is seen that it can no longer be supported. At any rate, it is not so bound when, owing to the lapse of time, and the change in social conditions, the previous decision is not in accord with modern thinking. A recent instance is Cooke v. Head (1972) 1 W.L.R. 518, when we departed from the decision in Diwell v. Fames (1959) 1 W.L.R. 624. I am glad to find that we are all of one mind on this, but in case there are some who are doubtful, I can put the case on a conventional ground.

    It has been decided by the House of Lords that, when a statute uses an ordinary English word in its popular meaning as distinct from its legal meaning, it is for the tribunal of fact to decide whether or no that popular meaning covers the case in hand. The tribunal of fact must use its own understanding of the word and apply it to the facts which have been proved. A Court of Appeal should not interfere with its decision unless it was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision. That was the very ground of the decision of the House of Lords in Cozens v. Brutus (1973) AC 854, In the light of that decision, it appears to me that Gammans v. Ekins (1950) 2 K.B. 328 was wrongly decided. In that case - the tribunal of fact - the County Court Judge - gave judgment for the man, finding him to be a "member of the tenant's family". The Court of Appeal recognised that the words were to be given their ordinary and popular meaning, but nevertheless they reversed the County Court Judge. I do not think they should have done. To my mind the decision of the County Court Judge in that case was a perfectly reasonable decision, as Sir Raymond Evershed, Master of the Rolls, recognised -see the top of page 334: and, on the authority of Cozens v. Brutus the Court of Appeal ought not to have interfered with it. They went wrong just as the Divisional Court did in Cozens v. Brutus. Their decision cannot stand with that subsequent decision of the House of Lords. We are not, therefore, bound by it - see Young v. Bristol Aeroplane Co. (1944) K.B. page 725.

    I would, however, add a word of caution about Cozens v. Brutus. When an ordinary word comes to be applied to similar facts, in one case after another, it is very important that the various tribunals of fact should each apply it in the same way. For instance, if the question comes up: Is an unmarried woman (living for many years as a man's wife) a member of his family? Each tribunal of fact should give the same answer. It would be intolerable if half of the Judges gave one answer: and the other half another. The Court of Appeal would have to give a definite ruling, one way or the other, just as we did in the seat-belt case, see Froom v. Butcher (1975) 3 W.L.S. 379.

    So here in the present case, I think this Court should give a definite ruling. We should rule that in this case this lady was a member of the tenant's family residing with him at the time of his death. As such, she was entitled to the protection of the Rent Acts. The property company were not entitled to turn her out. I would allow the appeal, accordingly. LORD JUSTICE JAMES: The only issues are

    (1) is there a rule of law; binding upon this Court which precluded the appellant from taking Mr. Wright's tenancy on his death?

    (2) If not, on the facts of this case was the appellant a member of the tenant's family within the meaning of the statutes?

    It is convenient to deal with those issues in the reverse order.

    In Brock v. Wollams (1949) 2 K.B. 388, it was held that "family" in section 12 (1)(g) of the Act of 1920 should be given its "popular meaning". At page 395 Lord Justice Cohen phrased the question which the Judge should ask himself in order to decide whether a person was a member of a tenant's family, "Would an ordinary man addressing his mind to the question whether Mrs. Wollams was a member of the family or not, have answered "Yes" or "No ?" In the cases which have been decided since Brook v. Wollams that test has been followed and its validity has never been questioned. Whether the answer to the question is "Yes" or "No" falls to be determined as at the date of death of the tenant: in the present appeal as at August 1961. In Gammans v. Ekins (1950) 2 K.B. 328, all three members of the Court took the view that a man who had lived for 20 years with a female tenant did not acquire the status of membership of the tenant's family, whether the cohabitation was on the basis of platonic friendship or involved sexual relationship as between man and wife. Lord Justice Asquith said at page 331:

    "But I would decide the case on a simpler view. To say of two people masquerading, as these two were, as husband and wife (there being no children to complicate the picture) that they were members of the same family, seems to be an abuse of the English language"

    Lord Justice Jenkins at page 332:

    "The defendant was not in my view a member of the tenant's family in any reasonable sense whatever. The parties for reasons of convenience, had chosen to live together, and the defendant, to avoid as he said gossip, had taken the tenant's name of Smith. The neighbours assumed that they were husband and wife and accepted them as such. I cannot regard this as giving the defendant the same claim to be considered a member of the tenant's family as if they had been lawfully man and wife."

    The Master of the Rolls, applying the Brook v. Wollams test, said at page 333: -

    "and it was indeed difficult to imagine any context in which, by the proper use of the English language, a man living in such a relationship with her could be described as of the tenant's family."

    The strongly expressed view was that as at 1949 the relevant date, the popular meaning of "family" did not include the male consort of a female tenant whose relationship had all the incidence of a marriage short of the birth of a child and all the outward appearances of marriage. Between 1950 and 1975 there have been many changes in the law effected by statute and decisions of the Courts. Many changes have their foundation in the changed needs and views of society. But changes have occurred in the field of family law and equitable interests in property. The popular meaning given to the word "family" is not fixed once and for all time. I have no doubt that with the passage of years it has changed. The cases reveal that it is not restricted to blood relationships and those created by the marriage ceremony. It can include de facto as well as de jure relationships. The popular meaning of "family" in 1975 would, according to the answer of the ordinary man, include the appellant as a member of Mr. Wright's family. This is not to say that every mistress should be so regarded. Relationships of a casual or intermittent character and those bearing indications of impermanence would not come within the popular concept of a family unit.

    It is not so easy to decide whether in 1961 the ordinary man would have regarded the appellant as a member of Mr. Wright's family. The changes of attitude which have taken place cannot be ascribed to any particular year. Had we to consider the position as at 1955 I would not be satisfied that the attitude reflected in the words of Lord Justice Asquith in the Gammans case had changed. I am confident that by 1970 the changes had taken place. There is no magic in the date 1961. I think that, having regard to the radical change which has by 1975 taken place, it would be a harsh and somewhat ossified approach to the present case to hold that in 1961 the appellant was not in the popular sense a member of the family.

    I turn to the issue whether there is any rule of law which precludes the appellant being a member of the family for the purpose of the Acts. If there is, it is to be found only in the decision of this Court in the Gammans case. I confess that I have been troubled in the course of argument as to how far the decision of this Court in that case is conclusive of the present appeal. The Court in Gammans reversed the trial Judge. They could not have done so unless the issue was a question of law. It is not a decision which can be explained on the basis of a question of fact. The cases which are said to be inconsistent with the decision are in my judgment not shown to be inconsistent.

    They are based upon the added fact of birth of a child or children to the illicit union. All the members of the Court in Gammans left that situation open for future consideration. The distinction between the mistress who is childless and the mistress who has a child by the tenant all forming a family unit is to my mind a valid distinction. I find it impossible to say that the decision in Gammans was per incuriam: all the judgments were carefully directed to the precise point. Upon its facts the case is distinguishable from the present case because the tenant was a female who had taken a man into her house and the man claimed the statutory tenancy. But that factual difference in my mind does not affect the general principle. I cannot take the view that Gammans v. Ekins was wrongly decided. The decision is binding upon this Court, but it is binding only upon the meaning to be given to "family" at that time. The point decided was that applying the popular meaning of the word "family" as it was used and understood in 1949 the evidence of relationship could not support a finding that the defendant was a member of the tenant's family. The decision is not authority for the proposition that at some later time a person in a similar position to Mr. Ekins could not in law be a member of the tenant's family within the meaning of the Rent and Mortgage Interest Restriction Acts and the Rent Act 1968. The word "family" must be given its popular meaning at the time relevant to the decision in the particular case.

    To hold that Gammans v. Ekins precludes the appellant from beinging himself within the statute would be to apply a precedent slavishly in circumstances to which it is not appropriate having regard to reality.

    I would therefore allow this appeal.

    LORD JUSTICE BRIDGE: On the face of it Gammans v. Ekins (1950) 2 K.B. 328, appears to have decided as a matter of law that where a couple have lived together as man and wife without either marrying or producing children, no matter how stable and permanent the relationship, one partner could not on the death of the other succeed to the other's statutory tenancy as being "a member of the tenant's family" under section 12(1)(g) of the Increase of Rent and Mortgage Interest (Restriction) Act, 1920. In that case it was in fact the male partner who claimed to succeed to the tenancy of the deceased female partner; but I can find nothing in the judgments to suggest that the point would have been decided differently if the roles had been reversed.

    It is clear, however, that Gammans' case, following Brook v. Wollams ...1949) 2 K.B. 388, proceeded on the basis that the question who is a "member of the tenant's family" is to be answered according to the understanding of the ordinary man, and this test has been consistently applied in all the other cases decided on this provision. Now, it is, I think, not putting it too high to say that between 1950 and 1975 there has been a complete revolution in society's attitude to unmarried partnerships of the kind under consideration. Such unions are far commoner than they used to be. The social stigma that once attached to them has almost, if not entirely, disappeared. The inaccurate but expressive phrases "common law wife" and "common law husband" have come into general use to describe them. The ordinary man in 1975 would, in my opinion, certainly say that the parties of such a union, provided it had the appropriate degree of apparent permanence and stability, were members of a single family whether they had children or not.

    Can we give effect to this changed social attitude and consequent change in the scope of a common English word without doing violence to the doctrine of judicial precedent and notwithstanding that in this case the appellant's status must be considered at the date of the original tenant's death in 1961? I have felt some hesitation on both these points, but in the end have concluded that it would be unduly legalistic to allow either consideration to defeat the appellant's claim. On the first point, if language can change its meaning to accord with changing social attitudes then a decision on the meaning of a word in a statute before such a change should not continue to bind thereafter, at all events in a case where the Courts have consistently affirmed that the word is to be understood in its ordinary accepted meaning. On the second point, where the modern meaning is plain, we should, I think, be prepared to apply it retrospectively to any date, unless plainly satisfied that at that date the modern meaning would have been unacceptable.

    Accordingly I agree that this appeal should be allowed.

    (Appeal allowed with costs in the Court of Appeal and below. Judgment for defendant. No order for possession. Leave to appeal to the House of Lords refused.)

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