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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Islington v UCKAC & Anor  EWCA Civ 340 (30 March 2006)
Cite as:  1 WLR 1303,  WLR 1303,  EWCA Civ 340
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MAYOR'S AND CITY OF LONDON COUNTY COURT
HH JUDGE SIMPSON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
SIR CHARLES MANTELL
| LONDON BOROUGH OF ISLINGTON
|- and -
UCKAC & ANR
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Jonathan Seitler QC & Nicholas Nicol (instructed by Messrs Lewis Nedas & Co) for the Respondent
Crown Copyright ©
Lord Justice Dyson:
The assumed facts
The 1985 Act.
"82. Security of tenure
(1) A secure tenancy which is..
(a) a weekly or other periodic tenancy, cannot be brought to an end by the landlord except by obtaining an order mentioned in subsection (1A)
(1A) These are the orders—
(a) an order of the court for possession of the dwelling-house.
(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.
84. Grounds and orders for possession
(1) The court shall not make an order for the possession of a dwelling-house let under a secure tenancy except on one or more of the grounds set out in Schedule 2.
(2) The court shall not make an order for possession
(a) on the grounds set out in Part 1 of that Schedule (grounds 1 to 8), unless it considers it reasonable to make the order….
The tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by
(a) tenant, or
(b) a person acting at the tenant's instigation"
The Ground 5 argument
"8. In my judgment, by enacting these provisions and, in particular, by stating that the tenancy cannot be brought to an end by the landlord except by obtaining an order under the Act, Parliament has excluded the availability of rescission as a remedy. If it was not so, there would be no need to have ground 5 at all, because landlords would never use it. They would always choose rescission, which does not carry with it the additional element of reasonableness, although, as an equitable remedy, it might be granted on terms.
9. Furthermore, if the contract is rescinded, there is no longer a secure tenancy, which would be brought to an end so that ground 5 would never apply. If it could be circumvented in this way, there would have been no point in including it in the Schedule."
"Toulson J drew attention to Chadwick LJ's remark that the proceedings had been beset by muddle and confusion and observed that it was perhaps not surprising that the case had not been reported. It is, none the less, a further example of a decision of this court which proceeded on the basis that Solle v Butcher was good law."
"It is a maxim in the common law, that a statute made in the affirmative, without any negative expressed or implied, does not take away the common law….."
Postscript on rescission
"(3) Where a secure tenancy is a tenancy for a term certain but with a provision for re-entry for 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 fixed term) shall apply.
(4) Section 146 of the Law of Property Act 1925 (restriction on the relief against forfeiture), except subsection (4) (vesting in under-lessee), and any other enactment or rule of law relating to forfeiture, shall apply in relation to proceedings for an order under subsection (3) of this section as if they were proceedings to enforce a right of re-entry or forfeiture."
The amendment point
Sir Charles Mantell:
Lord Justice Mummery: