MARSHALL v BRADFORD METROPOLITAN DISTRICT COUNCIL [2001] EWCA Civ 594

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
(His Honour Judge Altman)
[2001] EWCA Civ 594Case No Case No: B1/2000/0626Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Friday 27th April 2001
Between
MARSHALLAppellantBRADFORD METROPOLITAN DISTRICT COUNCILRespondent
Before
Lord Justice SchiemannLord Justice ChadwickSir Christopher StaughtonMr Stephen Knafler (instructed by Messrs Roskell Davies, Birmingham for the Appellant)Mr John Holroyd (instructed by Bradford Metropolitan District Council for the Respondent)Date 27 April 2001

LORD JUSTICE CHADWICK :

This

[1]is an appeal against an order made on 29 October 1999 by His Honour Judge Altman, sitting at Bradford County Court, in proceedings brought by Mrs Linda Marshall against Bradford Metropolitan District Council. The appeal is brought with the permission of this Court (Mr Justice Forbes) granted on 19 July 2000.[2]The appeal falls within section 55(1) of the Access to Justice Act 1999. In giving permission to appeal, Mr Justice Forbes identified two points of principle which, in his view, merited consideration by this Court:(i) whether it can be appropriate to strike out an action for breach of repairing covenants brought by a former tenant of a dwelling house formerly held under a secure tenancy, in circumstances where the tenancy has been brought to an end by breach of a possession order suspended under section 85(2) of the Housing Act 1985 but where the court can see that an application to discharge or rescind that order, under section 85(4) of that Act, would be likely to succeed; and(ii) whether the secure tenancy revives automatically, and with retrospective effect, once it can be seen that the suspended possession order is, under its own terms, no longer enforceable. In order to address those points it is necessary to have in mind the relevant statutory provisions. The Housing Act 1985[3]The security of tenure first given to public sector tenants by the Housing Act 1980 is now provided by Part IV of the Housing Act 1985. Section 79 of the 1985 Act defines a secure tenancy. Subject to certain exceptions which are not material in the context of this appeal, a tenancy under which a dwelling house is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied. Section 82(1) of the 1985 Act provides that a secure tenancy which is a weekly or other periodic tenancy cannot be brought to an end by the landlord except by obtaining an order of the court for possession. Section 82(2) is in these terms:
"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."
[4]Section 84(1) of the 1985 Act provides that a 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. The grounds upon which an order for possession may be made include those set out in Part I of Schedule 2; but the court shall not make an order for possession on a Part I ground unless it considers it reasonable to make the order. Ground 1 enables the court to make an order for possession where rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed. Section 85(2) of the 1985 Act provides that, on the making of an order for possession of a dwelling house let under a secure tenancy on any of the grounds set out in Part I of Schedule 2, or at 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. Subsections (3) and (4) of section 85 are in these terms (so far as material):
"(3) On such ...[a] 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 payment 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. (4) if the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession"
. The termination and revival of secure tenancies under the 1985 Act[5]Those provisions have given rise to the need for appellate courts to consider the following questions:(i) where, in circumstances in which the court has suspended execution of an order for possession of a dwelling house let under a secure tenancy upon a condition with respect to the payment by the tenant of arrears of rent, the tenant fails to make payment in accordance with the condition, at what date does the tenancy end;(ii) what is the relationship between the former landlord and the former tenant if, after the tenancy has been brought to an end under section 82(2) of the 1985 Act, the former tenant remains in occupation with the consent of the landlord; and(iii) is the tenancy restored for all purposes - or, if not, for what purposes - if the court subsequently postpones the date for possession or discharges or rescinds the order for possession.[6]The first of those questions was answered by the decision of this Court in Thompson v Elmbridge Borough Council [1987] 1 WLR 1425. A possession order in respect of a dwelling house held under a secure tenancy had been suspended in these terms:
"judgment for possession shall not be enforced for 28 days in any event, and for so long thereafter as the defendant punctually pays...the arrears...in addition to the current rent."
Lord Justice Russell (with whom the other member of the Court, Sir Denys Buckley, agreed) said this, at pages 1430H-1431A:
"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."
That observation was accepted as correct by the House of Lords in Burrows v Brent London Borough Council [1996] 1 WLR 1448 , 1453F, 1458D. It has been endorsed in two recent decisions in this Court - Lambeth London Borough Council v Rogers (1999) 32 HLR 361, 367, 370 and Pemberton v Southwark London Borough Council [2000] 1 WLR 1672, 1676B-E.[7]The second question was answered by the House of Lords in the appeal to which I have just referred, Burrows v Brent London Borough Council . In a passage at pages 1454H-1455A, with which each of the other members of the House agreed, Lord Browne- Wilkinson said this:
" A secure tenancy protected by Part IV of the Act of 1985 is not like an ordinary tenancy. It can only be terminated by an order of the court ordering possession to be given on a particular date or in a particular event. But even determination by order of the court is not final. Until the possession order is executed, the court can by variation of its order change the date on which possession is to be given and thereby revive a secure tenancy which has already been terminated. During the period between the date specified by the order for the giving of possession and the date on which the order is executed there is a period of limbo: the old tenancy has gone but may yet be revived by a further order of the court varying the date for possession."
It is important to note that during what Lord Browne-Wilkinson described as the "period of limbo" - beginning on the date when the tenancy comes to an end by virtue of section 82(2) of the 1985 Act and ending on the date on which the order is executed - neither party is bound by the terms of the old tenancy. During the "period of limbo" neither party can sue the other on the covenants in the old tenancy. The point is made by Lord Justice Mummery in Lambeth London Borough Council v Rogers (1999) 32 HLR 361, at page 367.[8]The third question was answered by Lord Justice Millett in Greenwich London Borough Council v Regan (1996) 28 HLR 469. In a passage at pages 475-476, which was subsequently to be approved by Lord Browne-Wilkinson in Burrows v Brent (at pages 1452H-1453E), Lord Justice Millett said this:
"I return to the statutory provisions to make the following observations: 1. The existing tenancy determines on the date on which the tenant is to give up possession (section 82(2)). 2. The Court may postpone the date for possession, i.e. the date on which the tenancy is to come to an end; or stay or suspend the execution of the order at any time before the execution of the order (section 85(2)) 3. At first sight one might suppose that the court could only postpone the date of possession, and hence the date on which the tenancy is to determine, during the currency of the tenancy, i. e. by an order made before the relevant date has arrived. Thereafter, the tenancy being at an end, it would confine itself to staying or suspending enforcement of the order. 4. That is not, however, the way in which the statutory provisions operate. Section 85(2) is quite explicit. The court may exercise either power at any time before the execution of the order. Since the order cannot be executed until after the date on which the tenant is to give up possession, i.e. after the date on which the tenancy has determined, it follows that the section expressly contemplates the possibility that the court may postpone the possession date, and hence the date on which the tenancy is to come to an end, even after the tenancy has already determined. 5. Accordingly, the statutory provisions contemplate the possibility that the court may revive or reinstate the existing secure tenancy which must thereafter be treated as having continued without interruption. [emphasis added] 6. This construction is confirmed by the terms of section 85(4). The order which that subsection authorises the court to rescind or discharge must be the order which is subsisting at the date when it is rescinded or discharged and .... the court's power to rescind or discharge it is not excluded by the fact that during some previous period earlier forms of the suspended possession order and earlier conditions imposed had not been complied with. Once the order for possession which brings the tenancy to an end is rescinded or discharged; however, the tenant 's right to remain in occupation must be referable to the original tenancy which, ex hypothesi, has never been determined."
[emphasis added][9]It was Lord Justice Millett's view, as appears from the words which I have emphasised (at paragraphs 5 and 6 in the passage cited), that once there has been an order under section 85(2)(b), postponing the date for possession, or an order under section 85(4), discharging or rescinding the order for possession, the original tenancy revives and must be treated, for all purposes, as if it had continued throughout what would otherwise have been the "period of limbo". That, also, was the view of Lord Browne-Wilkinson, expressed in a passage in his speech in Burrows v Brent which may, strictly, be obiter dicta . At [1996] 1 WLR 1448 , 1455E, Lord Browne-Wilkinson said this:
"Technically the old secure tenancy is, during the limbo period, no longer in existence and therefore neither the repairing covenants in the tenancy nor the Defective Premises Act 1972 apply. But the tenant can at any time apply to the court for an order varying the date on which possession is to be given and thereby retrospectively revive the old secure tenancy, together with its covenants."
[10]Whatever doubts may have remained after the decisions in Greenwich v Regan and Burrows v Brent , they were dispelled, at least in this Court and below, by the decision in Lambeth London Borough Council v Rogers (1999) 32 HLR 361. I take the following summary of the position from the judgment of Lord Justice Mummery, at page 367:- "The secure tenancy of Miss Rogers came to an end on the date when she failed to comply with the terms of the suspended order of October 13, 1992. This occurred at the latest by the end of December 1992, possibly earlier when she failed to make the first stipulated payment. If she had found difficulty in complying with the terms of suspension she could have applied to the court to vary them. She did not do so. After the end of 1992 Miss Rogers was in occupation of the premises as a tolerated trespasser. The secure tenancy had come to an end. So had the covenants, including the Council's repairing covenant. That was not, however, a final or irreversible situation. The possession order had not been executed. That makes all the difference to the statutory protection of Miss Rogers under section 85". Lord Justice Mummery then set out the passage from the speech of Lord Browne-Wilkinson in Burrows v Brent, at pages 1454H-1455A, to which I have already referred, and continued:
"During the 'limbo period' Miss Rogers could not enforce the repairing covenant against the Council. She was not a tenant. There was no tenancy in existence. The Council could have applied to the court in late 1996 to strike out her claim against it. But it did not do so. Nor did it enforce the possession order. Instead it made an agreement with her on April 20, 1998 tolerating her continued occupation of the premises."
The reference, there, to the possibility of an application to strike out her claim in late 1996 was made in the context that Miss Rogers had commenced proceedings for breach of repairing covenants in September 1996, during the "period of limbo". But, as Lord Justice Mummery observed, there had been no application to strike out those proceedings. What had happened was that, before her proceedings for breach of repairing covenants had come on for trial, Miss Rogers had issued an application, in September 1997, seeking orders under section 85 of the 1985 Act that the 1992 possession order be rescinded or discharged or that the date for possession under that order be postponed, on the grounds that she had adhered to an agreement for instalment payments made with the Council in May 1994. Her claim for damages for breach of repairing covenants and her application under section 85 came on for hearing together. On 23 November 1998 the county court judge discharged the 1992 possession order, gave judgment in favour of Miss Rogers on her damages claim and ordered that the judgment be satisfied, in part, by the cancellation of the balance outstanding on the rent account.[11]On an appeal by Lambeth London Borough Council, Lord Justice Mummery (with whose reasons the other two members of the Court, Lord Justice Simon Brown and Lord Justice Otton expressly agreed) held that the judge had exercised his discretion correctly in making the order which he did, under section 85 of the 1985 Act. He went on, at page 368, to say this:
"(3) What was the effect of the order on the liability of the Council to Miss Rogers for disrepair of the premises during the 'limbo period'? In my judgment, the Council's repairing obligations were retrospectively revived by the order and the Council was rightly held liable in damages for breach of covenant. According to the terms of the April 1998 agreement, the Council would not enforce the 1992 possession order to evict Miss Rogers for so long as she kept to her agreement for the payment of the current rent and payment off of arrears; and the date for possession was to be postponed until she failed to comply with its terms. Miss Rogers kept to that agreement. The possession order was not executed. She was still a tolerated trespasser in the premises when she came before the court with her application for orders under section 85 and her claim for damages for disrepairs occurring in the 'limbo period'. The court had power to make an order on her application under section 85(2)(b) to postpone the date of possession for such period and on such conditions as it thought fit. Indeed, as Lord Browne-Wilkinson said in Burrows at 1455E, there was little doubt as to how the court would exercise that discretionary power in these circumstances - 'If the tenant has complied with the agreed conditions, there can be little doubt that the court would make the required order.' It is also clear from Burrows that the effect of a court order postponing the date for possession under section 85(2)(b) is that, unless the court otherwise directs, the secure tenancy is revived and that the revival applies retrospectively to the covenants, as well as to the tenancy itself. See 1455D-F."
The facts in the present case[12]I turn, therefore, to the facts in the present case. Mrs Marshall is the occupier of a dwelling house at 22 Southfield Avenue, Odsal, Bradford. That property is part of the housing stock owned by Bradford Metropolitan District Council as local housing authority. It was let to Mrs Marshall and her husband, Mr John Marshall, under a written tenancy agreement dated 10 September 1984. It is common ground that that tenancy became a secure tenancy for the purposes of Part IV of the Housing Act 1985. It is common ground, also, that under the contractual terms of the tenancy - alternatively, under section 11 of the Landlord and Tenant Act 1985 - the landlord was obliged to keep the property in repair. Further, that for so long as that obligation existed, the landlord was under a duty to take care to see that persons who might reasonably be expected to be affected by defects in the state of repair of the premises were reasonably safe from personal injury - see section 4(1) of the Defective Premises Act 1972.[13]The rent payable under the 1984 tenancy agreement (inclusive of rates and water and sewerage charges was £19.15 per week). That rent was increased from time to time; so that, by January 1989, it had risen to £31.88 per week. By then, however, Mr and Mrs Marshall had fallen into arrears. The District Council commenced proceedings against them in the Bradford County Court (Case 88 13594). On 27 January 1989 the District Council obtained judgment in those proceedings in the sum of £490.60 in respect of arrears of rent and costs of £84.00 (a total of £574.60). The Council obtained, also, an order for possession of the premises at 22 Southfield Avenue. But the order for possession was suspended, and enforcement of the order for payment was stayed, upon terms that Mr and Mrs Marshall pay £1.70 per week off the arrears. The relevant provisions of the order were in these terms:
"IT IS ORDERED that the judgment for possession shall not be enforced for 28 days in any event, and for so long thereafter as the defendant punctually pays to the plaintiff or his agent the [arrears of rent, mesne profits and] costs by instalments of £1.70 per week in addition to the current rent. AND that the judgment for £574.60 shall not be enforced for so long as the defendant pays the instalments of £1.70 per week. AND ALSO that the judgment[s] shall cease to be enforceable when the [arrears of rent, mesne profits and] costs referred to above are satisfied."
The form of the order (Form N.28) - and, in particular, the form of the provisions to which I have referred - was that then prescribed for use where the court had decided to make a suspended possession order; see the County Court (Forms) Rules 1982 (SI 1982/586).[14]We were told in the course of the hearing of the appeal - although the point is not the subject of any evidence in these proceedings - that Mr and Mrs Marshall separated in or about 1996. Mr John Marshall no longer lives at the premises, 22 Southfield Avenue. He has taken no part in the present proceedings. These proceedings[15]The present proceedings (90 3067) were commenced by the issue of a summons in the Bradford County Court on 9 April 1999. Mrs Linda Marshall is the sole claimant. In the particulars of claim lodged on her behalf Mrs Marshall asserted that the premises were, and had been for some time, seriously out of repair. She relied upon schedules of disrepair prepared on 30 October 1996 and (following re-inspection) on 17 September 1998. She sought an order requiring the District Council to remedy the outstanding defects; and she claimed damages, exceeding £10,000 but limited to £50,000. The claim included general damages for distress, frustration, depression and embarrassment suffered because, as she alleged, the premises had been damp, cold, draughty, unsightly, smelly, unhygienic and unpleasant to live in. In fairness to the District Council it must be said that, by a defence dated 12 May 1999, it is alleged that whenever defects at the property have been reported by Mrs Marshall, the necessary works of repair have been carried out within a reasonable time; and that she has only herself to blame if she has allowed defects to remain unremedied through her own failure to comply with the tenant's covenant to inform the landlord without delay of any defect for the repair of which the landlord is responsible.[16]The primary case advanced by the District Council in answer to Mrs Marshall's claim, however, is that - notwithstanding that she has been in continuous occupation since 1984 - she is not the tenant of the property. It is said that she ceased to be the tenant on or about 3 February 1989.

(i) of the defence:

"By an order of the Court made on 27 January 1989, in an action brought by the Defendant herein against the Claimant herein; the Defendant herein was granted possession of the dwellinghouse, the same not to be enforced for 28 days in any event and for so long thereafter as the claimant herein punctually paid to the defendants herein arrears of rent, mesne profits and costs by instalments of £1.70 per week in addition to the current rent. On or before 3 February 1989, the Claimant herein had failed to make the said payments as set out herein above and the said tenancy was thereby determined forthwith."
If Mrs Marshall ceased to be tenant in 1989, then (it was said) any claim against the District Council, as landlord, for breach of its express or implied repairing covenants must have accrued long before 9 April 1993 (the date six years before the issue of these proceedings); with the consequence that these proceedings were commenced after the expiry of the relevant period of limitation.[17]The District Council followed its defence with an application, by notice dated 13 May 1999, for an order that the action be struck out. The grounds relied upon are that "the claimant's action sets up a cause of action which is barred by the provisions of the Limitation Act 1980 as amended." The application was supported by a witness statement made on behalf of the District Council by a solicitor in its employ to which were exhibited copies of Mr and Mrs Marshall's payment record and rent account. Those documents show:(i) arrears of £882.47 as at 30 March 1990;(ii) a pattern of increasingly irregular and infrequent payments off those arrears over the sixteen months to July 1991;(iii) arrears of £691.97 as at 29 July 1991;(iv) arrears of £651.97 as at 3 April 1992;(v) an increase in arrears over the next four months, to £1053.42 as at 24 July 1992, suggesting that no rent was being paid during that period;(vi) arrears of £514.62 as at 2 Apri1 1993, rising to £642.22 as at 1 Apri11994;(vii) a steady reduction of the arrears over the next nineteen months, by quarterly payments of £30 or thereabouts, to £206.12 as at 27 October 1995;(viii) an increase over the next five months when no rent was being paid, so that arrears had reached £837.57 by 29 March 1996;(ix) a payment of £630 on 29 March 1996;(x) thereafter, regular quarterly payments of £30 or thereabouts by the Department of Social Security until 12 June 1997, by which date the arrears had been reduced to £5.82; and(xi) thereafter, a pattern of current rent payments (with one 'blip' in October/November 1997 which was redressed) but no further reduction in arrears; so that the amount of the arrears remained at £5.82 when the proceedings were issued.[18]On 15 June 1999, an employee of the solicitors whom Mrs Marshall had instructed lodged a witness statement in which he said that Mrs Marshall was about to clear the rent arrears (there described, wrongly, as £5.62) and that "following the clearance of the rent account the Claimant is fully entitled at present and for all past period to rely upon her landlord's covenant to repair." It is common ground that Mrs Marshall did, in fact, pay off the arrears of £5.82 on 15 June 1999; so that, from that date, there have been no arrears on the rent account which the District Council have continued to maintain in the joint names of herself and her husband.[19]That was the position when the application to strike out the proceedings came before District Judge Rhodes on 24 June 1999. He made the order sought. His reasons are recorded in a note which he made on 15 May 2000 (at a time when the matter was before this Court on an application for permission to appeal from His Honour Judge Altman):
" ..my decision...was clearly based on fact that Claimant's counsel conceded technically the Defendant's application to strike out was correct and further that the Claimant would need to make an application to reinstate the tenancy. There was no such application before me."
[20]Mrs Marshall applied to the County Court judge for permission to appeal against the order made by District Judge Rhodes. That application came before His Honour Judge Altman on 29 October 1999. He seems to have treated the application for permission to appeal as the substantive appeal; and he dismissed the appeal. He accepted, as is self evident from the payment record and rent account put in evidence by the District Council, that there had been a failure to comply with the conditions set out in the suspended possession order of 27 January 1989; with the consequence that the secure tenancy had determined shortly after that date. He rejected the submission that the tenancy revived -automatically and without the need for any order of the court - when the arrears were finally paid off on 15 June 1999. He rejected, also, the submission that the District Council had waived the right to rely on a breach of the order of 27 January 1989. He did so on the basis that, on the allegations of fact made (or, more accurately, not made) on behalf of Mrs Marshall in the present case, there was no reasonable prospect of the waiver argument succeeding. In reaching that conclusion the judge took into account the observations of Lord Justice Millett in Greenwich London Borough Council v Regan (1996) 28 HLR 469 and of Lord Browne-Wilkinson in Burrows v Brent London Borough Council [1996] 1 WLR 1448 . He was not, of course, referred to the decision of this Court in Lambeth London Borough Council v Rogers (1996) 32 HLR 361. By coincidence, that appeal was decided on the day (29 October 1999) that His Honour Judge Altman heard and decided the present case. But there is nothing in the decision in Lambeth v Rogers which would have been likely to alter the judge's view as to the prospects of success, in the present case, of an argument based on waiver . Subsequent events[21]The judge referred to the fact that it had been suggested before the District Judge that Mrs Marshall might apply to reinstate the secure tenancy. He said this, at page 5C-F in the transcript of his judgment:
"Furthermore, I am told that when this matter was before the district judge...that the entitlement to a striking out, technically speaking, was conceded. But it was there argued that the interests of justice should require that, in effect, an amendment be permitted to turn the action into a claim to reinstate the tenancy. That is supported by the draft order that was submitted with the notice of appeal as the proposed outcome, which indeed did not envisage a substantive hearing of the appeal today, on the face of it."
There is, however, no indication that the judge thought that an application to reinstate the secure tenancy was being pursued in the proceedings that were before him; nor is it easy to see how such a claim could properly have been pursued in proceedings to which Mr John Marshall was not a party.[22]On 4 November 1999 further proceedings were commenced by Mrs Marshall against the District Council in which she claimed damages for breach of the repairing covenants. Those proceedings are not before us; and we have been told little about them, save that they have been stayed pending the outcome of this appeal. For my part, I find it difficult to see how - in the circumstances that the first disrepair proceedings had just been struck out and there had still been no application to discharge or rescind the possession order - the commencement of the second disrepair proceedings could have been other than an abuse of the process of the court. But the District Council does not appear to have taken objection to those proceedings on that ground.[23]The claim to reinstate the secure tenancy was made some months later by an application, dated 5 January 2000, in the original possession proceedings (88 13594). Curiously, the application is made by Mrs Marshall's solicitors "on behalf of the Claimant". It seems to have been overlooked that the claimant in the possession proceedings was, of course, the District Council. But the draft order annexed to the application was in a more appropriate form. It sought a declaration that "the Possession Order made in favour of the Claimant dated 27th January 1989 be set aside". On 2 July 2000 the Bradford County Court made an order that "the possession order of 27th January 1989 be discharged". It is, perhaps, characteristic of the lack of care which seems to have pervaded this litigation that that order is expressed to be made in the first disrepair proceedings - that is to say, in the present proceedings (90 3067) notwithstanding that those proceedings had been struck out by the same court some twelve months earlier. Further, it does not seem to have occurred to the parties, or to the court, that Mr John Marshall was not a party to the application of 5 January 2000; nor that the effect of an order discharging the possession order of 27 January 1989 would be to revive a tenancy under which he would continue to be a joint tenant and so, prima facie , liable for rent and for the performance of the tenant's covenants. The issues on this appeal[24]Mr Justice Forbes, when giving permission to appeal to this Court on 19 July 2000, identified the two issues to which I have already referred:(i) whether it was a proper exercise of discretion to strike out the first disrepair proceedings in circumstances in which it could be seen that an application to discharge or rescind the suspended possession order, under section 85(4) of that Act, would be likely to succeed; and(ii) whether the secure tenancy revived automatically once it could be seen that the suspended possession order was, under its own terms, no longer enforceable. At the hearing of the appeal counsel instructed on behalf of the appellant advanced arguments on both those issues; and, in addition, contended that the District Council had waived any right to rely upon the tenants' failure to comply with the conditions in the possession order. It was not submitted that a new tenancy had arisen from the payment and acceptance of rent.[25]It is, I think, logical and convenient to consider the three issues in the reverse order. The first question is whether the District Council waived its right to treat the secure tenancy as determined by the breaches of the suspended possession order. If not, did the secure tenancy revive automatically once the whole of the arrears of rent had been paid off. If not, was it a proper exercise of discretion to strike out the first disrepair proceedings in the circumstances in which the matter came before the courts below. Waiver[26]In my view the appellant gains no assistance, in the present case, from an argument based on waiver. The most that could be said is that there came a time, at some date after 29 March 1996, when the District Council must be taken to have accepted that Mrs Marshall could remain in occupation of the premises for so long as the arrangements for regular payments of housing benefit (equal to the weekly rent) and for regular payments out of income support (to reduce the arrears) - which had, by then, been put in place -continued in force. That is to say, that the District Council must be taken to have accepted that the possession order would not be enforced for so long as those arrangements continued. In that respect, the position would be the same as if there had been an express agreement between the District Council and Mrs Marshall that she could remain in occupation on those terms. Agreements to the like effect were considered in the three appeals to which I have already referred - Greenwich London Borough Council v Regan (1996) 28 HLR 469, Burrows v Brent London Borough Council [1996] 1 WLR 1448 and Lambeth London Borough Council v Rogers (1999) 32 HLR 361. In the light of the judgments in Burrows and Rogers , it is now clear that an agreement, made between a landlord and a former tenant after the secured tenancy has terminated as the result of a possession order, to the effect that the former tenant may remain in occupation on terms, will not (of itself) have the effect of reviving the secure tenancy.[27]The appellant relies on a passage in the judgment of

Lord Justice Millett in the Regan case, at page 477:

"If the Local Authority agrees in advance to a variation in the conditions on which the order for possession is suspended, there will be no breach of the conditions and no termination of the tenancy. This is because it is implicit in the order that the tenant is not obliged to make payments if the Local Authority agrees that he need not do so, or if the Local Authority waives payment. If, after a breach occurs and the tenancy is determined, and the Local Authority subsequently reaches agreement with the tenant the effect of which is to waive the breaches, then in my opinion in accordance with ordinary principle such breaches must be treated as if they had not occurred. It would follow from this that the tenancy must thereafter be treated as not having been determined. This appears to me to be the effect of an order which leaves the determination of the tenancy to the occurrence of a breach of the conditions of the order, and which leaves the occurrence of a breach to be dependent upon whether the landlord treats it as such or agrees to waive the breach."
[28]Lord Browne-Wilkinson identified the point in his speech in the Burrows case, at page 1453H:
"The Court of Appeal [in Regan] held (in my view rightly) that the parties could not vary the terms of the court order. But they held that by agreeing the new conditions, the landlord waived the right to complain that failure to comply with the conditions specified in the order constituted a breach of those latter conditions. Consequently, there being no breach of the conditions imposed by the order upon which the landlord could rely, the order remained in force, the date for giving possession had not passed and therefore the old tenancy had not been terminated."
But it cannot be said that he endorsed that view.[29]Burrows was not a case in which the order for possession had been suspended; in that case there was an immediate, unconditional, order for possession - see [1996] 1 WLR 1448 , 1454A. After referring to the period between the date specified by the order for the giving of possession and the date on which the order is executed as "a period of limbo", Lord Browne-Wilkinson posed the question, at page 1455A:
"If the parties reach an agreement as to the continued occupation of the premises by the tenant during that limbo period, what intention is to be imputed to them?"
He answered that question in the next paragraph of his speech, at page 1455B-C:
"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."
[emphasis added] The passages which I have emphasised are inconsistent with the view, expressed by Lord Justice Millett in the Regan case, that the agreement not to execute the order for possession, made during the period of limbo, has (of itself and without an order of the court) the effect of reviving the original secure tenancy. The effect of the agreement not to enforce the possession order - or to waive reliance on the breach of condition which has given rise to the right to enforce the order - is to prevent the landlord from taking the step which will finally put an end to the tenant's right to apply to the court for an order reviving the tenancy. The agreement does not, itself, revive the original tenancy.[30]That analysis, as it seems to me, was accepted by this Court in the Rogers case. Lord Justice Mummery referred to the position in the "period of limbo" in these terms, at (1999) 32 HLR 361, 367:
"Pending the possible revival of the old secure tenancy and while the agreed conditions are being complied with, the presence of the former tenant in the premises is tolerated by the landlord Council. "
At page 369 Lord Justice Mummery set out the argument that was being advanced by Mr Lewison QC on behalf of the tenant in that case in reliance on the observations of Lord Justice Millett in the Regan case (to which I have referred); that is to say, that the effect of a post-breach agreement could be to revive the original secure tenancy. But he rejected that argument. He said this:
"The important point is that the court ultimately retains an overriding discretion under section 85 (of the 1985 Act] to make what order it considers fit. Mr Lewison's contention that the agreement of the parties, if analysed in the sense explained by Millett LJ, is necessarily determinative of the result should be rejected. Such an agreement would no doubt provide the court with cogent material for the discretion under section 85, but it would not be effective to oust the statutory regime of an overriding discretion relating to the protection of secure tenancies."
[31]The position of the former tenant cannot be better in a case where there is no express agreement that he remains in occupation on terms; but where the landlord's agreement or waiver of the right to enforce the possession order has to be implied from inaction. But, in the present case, there is a further reason why waiver cannot lead to the result for which the appellant contends. Mrs Marshall was not the sole tenant under the original secure tenancy. She and her husband, Mr John Marshall, were joint tenants. On breach of the conditions imposed under the suspended possession order, the tenancy terminated. That is the result for which section 82(2) of the 1985 Act provides. On termination of the tenancy, Mr and Mrs Marshall each ceased to be liable under the tenant's covenants. That remained the position, on any basis, until the new arrangements for the payment of rent and arrears, which are said to have given rise to a waiver by the District Council, came into force in 1996. But, by that time, Mr Marshall had ceased to occupy the premises. There is nothing to suggest that he was party to the arrangements upon which Mrs Marshall relies to support an inference of waiver. Yet the effect of the waiver, if Mrs Marshall's contention were to succeed, would be that Mr Marshall would, once again, become liable under the tenants' covenants. If the secure tenancy revived, then it must have revived as a joint tenancy. There is no analysis, as it seems to me - and none has been suggested in argument - which could lead to the conclusion that a secure tenancy under which, at the date of termination, there were two joint tenants (each of whom remained alive throughout the relevant period) could revive as a tenancy under which one of them was the sole tenant. And no basis, as it seems to me, under which some arrangement between the District Council and Mrs Marshall (acting independently of her husband) could have the effect that Mr Marshall became subject to a liability as tenant which there is no reason to think he wished to accept and of which he had been relieved by statute some seven or eight years earlier. Automatic revival under the terms of the original order[32]I would reject, also, the contention that the secure tenancy revived automatically (without the need for any further order) once the whole of the arrears of rent had been paid off, on 15 June 1999. The point turns on the effect of the order of January 1989 - which, as I have already indicated, was in a prescribed form - when construed in the context of the relevant statutory provisions.[33]The order of 27 January 1989 contains five operative paragraphs:(i) an order for possession of the premises demised by the secure tenancy;(ii) an order for payment of the arrears of rent and costs (together £574.60);(iii) an order that the judgment for possession shall not be enforced for 28 days in any event, and for so long thereafter as the defendants comply with conditions as to the payment of current rent and weekly instalments of £1.70 in respect of the arrears;(iv) an order that the judgment for £574.60 shall not be enforced for so long as the defendants comply with the condition as to the payment of the weekly instalments of £1.70; and(v) a direction that "the judgment[s] shall cease to be enforceable when the [arrears of rent, mesne profits and] costs referred to above are satisfied." The appellant relies on that final paragraph. It is said that the effect of that paragraph is that the order for possession can no longer be enforced once the whole of the £574.60 - being the arrears of rent, mesne profits and costs referred to above - has been paid; with the result that, thereafter, there is no longer a date on which the defendants can be required to give up possession in pursuance of the order. Accordingly, it is said, the secure tenancy revives automatically.[34]For my part, I find it impossible to reconcile that submission with the relevant statutory provisions and the decisions in Burrows and Regan . Section 82(1) of the Act provides that a secure tenancy cannot be brought to an end by the landlord unless the court makes an order for possession. Section 85(2) empowers the court, on making an order for possession, to suspend the execution of the order. Section 85(3)(a) requires the court, when exercising the power conferred by section 85(2), to impose conditions with respect to the payment of arrears and of current rent. Section 82(2) - as applied in Thompson v Elmbridge Borough Council [1987] 1 WLR 1425 and subsequent cases - has the effect that the tenancy ends on the date on which there is a breach of a condition imposed under section 85(3)(a). In a case where the tenancy has been brought to an end under the provisions of section 82(2), the decisions in Burrows and Rogers establish that a former tenant who remains in occupation thereafter does so as a trespasser, unless and until the court makes some further order .[35]The secure tenancy does not revive on the making of an agreement to the effect that the landlord will not enforce the existing order. What is needed, in a case where the tenancy has been brought to an end under the provisions of section 82(2) of the 1985 Act, is a further order under section 85(2), varying the conditions in the original order or postponing the date of possession - see Burrows (at pages 1453C-D, 1455E and G) and Rogers (at pages 368 and 370). The secure tenancy revives because the effect of a further order under section 85(2) is that the possession order is treated as having been varied ab initio, so that, thereafter, it has effect as if the new date were the date on which the tenant was required to give up possession in pursuance of the order. There is then no date on which the tenancy has been brought to an end under section 82(2) of the Act.[36]The direction in the final paragaph of the order of 27 January 1989 does not require that order to be treated as if there has never been a date on which the tenant was required to give up possession. The operative words are "shall cease to be enforceable"; the words are not "shall never have been enforceable". In a case where the tenancy has been brought to an end under the provisions of section 82(2) on a date ("the termination date") which is before the date on which the order for possession is to "cease to be enforceable", the words used cannot be construed so as to have the effect that the order was not enforceable on the termination date. So the words used in the final paragraph of the order cannot have the effect of reviving the tenancy which has been brought to an end during the period that the order for possession was enforceable.[37]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 where 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 to the exercise of the power will be satisfied.[38]The real purpose of the final paragraph of the order of 27 January 1989, as it seems to me, is to define the period during which the secure tenancy is to remain subject to a suspended possession order. Section 85(2) of the Act enables the court to suspend execution of the possession order for such period as it thinks fit. Without the final paragraph of the order, the suspended possession order would remain in force indefinitely. The tenant would be subject, indefinitely, to the threat that, on failing to make punctual payment of rent, the landlord could execute the possession order. Without the final paragraph, it would be no answer to say that the arrears had been paid off. The possession order would remain in force, subject to the condition under the third paragraph - punctual payment of the current rent - notwithstanding that the arrears had been paid off. The discretion to strike out the first disrepair proceedings[39]The conclusions which I have reached on the first two issues make it necessary to address the third issue: was it a proper exercise of discretion to strike out the first disrepair proceedings in the circumstances in which the matter came before the courts below? It is important, of course, to keep in mind that the question for this Court - a fortiori , on a second appeal - is not whether we would have struck out the proceedings in those circumstances; the question is whether, in making and affirming the order to strike out, the courts below went wrong in principle.[40]The starting point, as it seems to me, is that on the facts as they were when the application to strike out came before the District Judge - and as they remained when the appeal from his decision came before His Honour Judge Altman - the first disrepair proceedings were bound to fail. The proceedings were bound to fail because the secure tenancy granted in 1984 had come to an end long before 9 April 1993; so that, at the date when the proceedings were commenced (9 April 1999), the claimant was not, and had not been for a period exceeding six years, entitled to enforce the landlord's repairing covenants under that tenancy. That was conceded before the District Judge, as his note records. Prima facie , therefore, the District Judge was entitled to strike out the proceedings on that ground; and Judge Altman was entitled to uphold that order .[41]Against that, it is said that the claimant was in a position, at least after she had paid off the small remaining balance of the arrears on 15 June 1999, to make an application under section 85(2)(b) of the 1985 Act for an order postponing the date of possession; that, if such an application had been made, it would have been successful - see the observations of Lord Browne-Wilkinson in the Burrows case at [1996] 1 WLR 1448 , 1455E; that an order under section 85(2)(b) would have had the effect of reviving the secure tenancy with retrospective effect; and that, once the tenancy had revived, no objection could have been taken to the claimant's right to bring the proceedings. It is accepted that, in general, where a landlord applies to strike out disrepair proceedings on the basis that the former secure tenancy has been brought to an end under section 82(2) of the Housing Act 1985, the proper course is for the claimant's solicitors to make a cross application for re-instatement of the tenancy - that is to say, to seek an order under section 85(2)(b) of the Act; but it is said that, if the solicitors do not take that course, the court should exercise its case management powers under CPR 1.4, in accordance with the overriding objective, to ensure that that happens. That, it is submitted, is the course that should have been taken in the present case.[42]For my part, I would accept - without intending thereby to lay down any general rule for the exercise of what is, plainly, a discretionary power - that there may well be circumstances in which the sensible and appropriate course for a court to take on a landlord' s application to strike out disrepair proceedings brought by a claimant whose former secure tenancy has come to an end under section 82(2) of the 1985 Act would be to adjourn the application to strike out so as to enable the claimant to make a cross-application under section 85(2)(b) in the possession proceedings; and then to deal with the application and cross-application together. That would reflect the course adopted in the Rogers case which was approved by this Court. But, in deciding whether to take that course there are, as it seems to me, at least three factors which the court will need to take into account. The first and, perhaps most obvious, consideration is whether the claimant's payment record is such that there is a real chance that an order under section 85(2)(b ) of the Act would be made. The second is to ask why a cross-application in the possession proceedings has not been made already. The third is to consider the effect that a refusal to make the order to strike out - to which, on the facts as they stand the landlord is, ex hypothesi , entitled - will have on the position of the landlord.[43]The second factor is of some relevance in the present case. Although it does not appear to have been appreciated by the parties or by the courts below, there is, as it seems to me, a real difficulty in seeing how it could have been right to make an order under section 85(2)(b) of the 1985 Act - which, prima facie , would have the effect of reviving the 1984 secure tenancy and, with it, the obligations of Mr John Marshall as a joint tenant under that tenancy - on an application to which he was not party. So far as I am aware, there was, no evidence whether or not he was content to accept the revival of his obligations as a joint tenant. The problem could not be overcome by ignoring the fact that the application was made in the possession proceedings (to which proceedings Mr Marshall was party) and making the order in the disrepair proceedings (to which he was not party) - as was done in the present case. So the question "why has no cross-application been made" cannot be treated as a mere formality. There may well be a reason why no application has been made to revive the tenancy.[44]It is a surprising feature of this case that, after her claim in the first disrepair proceedings had been struck out by the District Judge, the claimant made no application in the possession proceedings for an order under section 85(2)(b) of the Act in advance of her appeal. There is no explanation why she did not do so. The failure to do so may have been the result of incompetent advice; or it may have been the result of some reluctance on the part of Mr Marshall to join in the application. The court should not be required to speculate; or to make assumptions one way or the other. It is entitled to expect the party who is seeking to resist an order for the striking out of a claim which - on the facts as they stand when the application to strike out is heard - must fail to explain why a step which that party might be expected to have taken in his or her own interest has not been taken. A party who has chosen not to take a step in litigation which he could have taken has no right to be treated as if he had taken that step; a fortiori , where the party has not taken that step because he could not do so.[45]The third factor is of potential importance in a case, such as the present, where the claimant seeks not only an order that the landlord do the works of repair which, it is said, it can be required to do under the covenants in the tenancy agreement but seeks, also, damages in respect of past disrepair. If the period over which damages are said to have accrued extends back to a commencement date which is more than six years before the disrepair proceedings were actually commenced, then the effective date of the commencement of the disrepair proceedings may well be of some importance to the landlord. To revive the secure tenancy in circumstances in which that revival will have the effect of validating retrospectively proceedings which had been commenced when there was no tenancy may deprive the landlord of a limitation defence to the whole or a part of the damages claim. The position can be illustrated by the facts in the present case. If the first disrepair proceedings are not struck out, the effect of the order for reinstatement of the secure tenancy which was, eventually, made on 2 July 2000 (at least, as between the claimant and the District Council) is to expose the landlord to a claim for damages suffered from and after 9 April 1993. If the first disrepair proceedings remain struck out, the effect of the order of 2 July 2000 is to expose the landlord to a claim for damages suffered from and after 4 November 1993 (being the date six years before the second disrepair proceedings were commenced). If the second disrepair proceedings had been struck out also - as, in my view, would have been the natural and logical consequence of the decision to strike out the first disrepair proceedings - the starting date for the claim for damages would have been postponed to 2 July 1994. The amount of the claim for damages may or may not be affected, to any substantial degree, by the starting date; but, in principle, I can see no reason why the landlord should not be entitled to have the point considered. In an appropriate case, the court might well take the view that, in exercising its power under section 85(2)(b ) of the 1985 Act, it was right to impose a condition that a damages claim in any existing disrepair proceedings - which would be saved by the exercise of that power - should not extend back beyond the period of six years ending with the date of the order under which the tenancy was reinstated.[46]I reject the submission that, where the claimant who is faced with an application to strike out a disrepair claim on the grounds that the former secure tenancy has come to an end under section 82(2) of the 1985 Act makes no cross-application for an order under section 85(2)(b) of that Act, the court must exercise case management powers under CPR 1.4 so as to ensure that that cross-application is made and is heard with the application to strike out. That may be a proper course for the court to take in many - indeed, in most - cases where it can see that a cross-application would be likely to succeed. But there is no rule that it must do so. The court is required to exercise its discretion in each case. I find it impossible to hold that it was not open to the District Judge, in the present case, to decide that the appropriate course of action was to strike out the first disrepair proceedings, rather than to adjourn the application; or to hold that His Honour Judge Altman was wrong to uphold the District Judge's order. Conclusion[47]For those reasons I would dismiss this appeal. SIR CHRISTOPHER STAUGHTON:[48]I agree.

LORD JUSTICE SCHIEMANN:

[49]I also agree.

ORDER

Appeal dismissed; Section II order against the Legal Services Commission; Community Legal Services Regulation assessment; permission to appeal to the House of Lords refused. (Order does not form part of approved Judgment)

Cited in 8 later judgments