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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> London Borough of Harrow v. Johnstone [1997] UKHL 9; [1997] 1 All ER 929; [1997] 1 WLR 459; [1997] 2 FCR 225; [1997] 1 FLR 887; [1997] Fam Law 478; 95 LGR 470 (13th March, 1997)
URL: http://www.bailii.org/uk/cases/UKHL/1997/9.html
Cite as: [1997] Fam Law 478, [1997] 2 FCR 225, [1997] UKHL 9, [1997] 1 All ER 929, [1997] WLR 459, [1997] 1 WLR 459, [1997] 1 FLR 887, 95 LGR 470

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London Borough of Harrow v. Johnstone [1997] UKHL 9; [1997] 1 All ER 929; [1997] 1 WLR 459; [1997] 2 FCR 225; [1997] 1 FLR 887; [1997] Fam Law 478; 95 LGR 470 (13th March, 1997)

HOUSE OF LORDS

  Lord Browne-Wilkinson   Lord Jauncey of Tullichettle   Lord Mustill
  Lord Hoffmann   Lord Clyde

OPINIONS OF THE LORDS OF APPEAL FOR JUDGEMENT IN THE CAUSE

THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HARROW
(APPELLANTS)

v.

JOHNSTONE
(RESPONDENT)

ON 13 MARCH 1997




LORD BROWNE-WILKINSON


My Lords,

    I have had the opportunity of reading in draft the speech of my noble and learned friend Lord Mustill and, for the reasons he gives, I would allow this appeal.

    I have also had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. I prefer to express no view on the two points to which he refers, which do not arise for decision in the present case.



LORD JAUNCEY OF TULLICHETTLE


My Lords,

    I have had the opportunity of reading in draft the speech of my noble and learned friend Lord Mustill and, for the reasons he gives, I would allow this appeal.



LORD MUSTILL


My Lords,

    On 14 June 1989 the appellant Maurice Johnstone and his wife Laura entered into a joint tenancy agreement with the respondent Council, the London Borough of Harrow, relating to 5 Waghorn Road, Kenton, Middlesex. The agreement provided, by Clause 19, that the tenants might terminate the tenancy by giving four weeks', written notice to the Council, expiring on a Monday. This was a secure tenancy under the Housing Act 1985.

    The couple moved into the house and lived there, latterly with their two young children, until February 1994. The marriage ran into difficulties, and it appears that during 1992 the wife commenced divorce proceedings. These were not immediately pursued, and did not reach the stage of a decree until 1995. Meanwhile, matters had come to a head at the beginning of February 1994. Precisely what happened is not in evidence, but it is clear that (a) the wife left the house, taking the children with her, and (b) the husband made applications to Willesden County Court, based on allegations that his wife had assaulted him and had attempted to eject him from the house. These applications were, first, for an injunction under the Domestic Violence and Matrimonial Proceedings Act 1976; and, secondly, for a prohibited steps order under section 10 of the Children Act 1989. On 3 February 1994 the matter came before Judge Krikler who made two orders, evidently ex parte. One was a "prohibited steps order," requiring that the elder boy should not be removed from the jurisdiction. The second must be quoted in full:

No return date was given for a further hearing. It is not known whether the order was served on the wife, or when she first got to hear of it. No application has been made to discharge the order.

    Since the husband remained in possession of the house and the wife was unwilling to return she needed somewhere else to live and applied to the Council, which was willing to re-house her. It was, however, contrary to Council policy to provide accommodation to someone who already had a Council tenancy. Accordingly, the Council set about regaining possession of 5 Waghorn Road, and for this purpose they suggested to the wife that she should serve on them a notice, in the event dated 22 March 1994, that she would:

By a letter dated 30 March 1994, which did not arrive until 15 April, the Council's Housing Services forwarded to the husband a copy of the notice and told him that his tenancy would come to an end on 25 April. As soon as the husband received the letter he went to the Housing Services' office and told the relevant official about the injunction.

    The husband remained in the house, and on 17 June 1994 the Council commenced proceedings for possession in Willesden County Court. Not having received legal aid until the day before the hearing the husband did not file a defence, but he did so when the matter came before Judge Hunter on 9 August 1994. Its substance was that by giving the notice the wife was acting in breach of the injunction and was in contempt of court. By bringing the proceedings when it was aware of the injunction the Council had aided and abetted the wife in that breach and was itself in contempt of court, and the proceedings were an abuse of the process of the court. The learned judge accepted this submission and dismissed the claim. His reasoning was as follows:

In addition, it seems that the learned judge had doubts, notwithstanding Hammersmith and Fulham London Borough Council v. Monk [1992] 1 AC 478, 483, as to whether a notice by one tenant alone was sufficient to bring the tenancy to an end under Clause 19.

    On an appeal by the wife there was a marked difference of opinion among the members of the court.

    1. Russell L.J. reasoned as follows.

 2. Sir Roger Parker agreed with Russell L.J. in the result, but reached it by a different route, as follows.

 3. Hobhouse L.J. disagreed with the conclusion and the reasoning of the other members.

    These divergences of view foreshadowed the arguments now before the House. Central to them all is the decision of this House in the Monk case. Without the added feature of the county court's order, the facts were very similar to the present. The question was whether a notice given by one joint tenant alone was sufficient to terminate the tenancy. In a speech with which the other members of the House agreed, Lord Bridge of Harwich analysed and rejected the argument that the determination of a periodic tenancy by notice is analogous to the determination of a lease for a fixed term in the exercise of a break clause. I must quote from the speech at length. First, his Lordship approached the question a priori, at pp. 482-483:

His Lordship then examined the reported decisions to see whether they displaced his reasoning, and continued, at p. 484:

Lord Bridge concluded his analysis, at pp. 490-491:


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URL: http://www.bailii.org/uk/cases/UKHL/1997/9.html