Tilling v Whiteman [1979] UKHL 10

House of Lords

Between

TillingAppellant

WhitemanRespondent

Before

Lord Wilberforce

Lord Diplock

Lord Salmon

Lord Fraser of Tullybelton

Lord Scarman

LORD DIPLOCK

My Lords,

Lord Wilberforce This appeal arises under Case 10 of Part II of Schedule 3 to the Rent Act 1968, which reads as follows:

"Where a person who occupied the dwelling-house as his residence (in this Case referred to as 'the owner-occupier') let it on a regulated tenancy and—(a) not later than the relevant date the landlord gave notice in writing to the tenant that possession might be recovered under this Case, and (b) the dwelling house has not, since 8th December 1965, been let by the owner-occupier on a protected tenancy with respect to which the condition mentioned in paragraph (a) above was not satisfied, and (c) the court is satisfied that the dwelling-house is required as a residence for the owner-occupier or any member of his family who resided with the owner-occupier when he last occupied the dwelling- house as a residence."

If these conditions are satisfied, Section 10 of the Act requires an order for possession to be made. The appellant, Mrs. Tilling, owns a small house in Canterbury jointly with Miss G. L. M. Dossett. She claims to have been in occupation of it immediately before 19 February 1975. On that date the joint owners let it to the respondent, Miss Whiteman, for two years. The tenancy agreement contained a clause whereby Miss Whiteman agreed to yield up the premises at the end of the tenancy. There was a statement, signed by the joint owners, addressed to Miss Whiteman that under the Rent Acts 1968 and 1974 the landlord (sic) may recover possession of the premises under the provisions of Case 10 (supra).

Miss Whiteman did not yield up possession as she had agreed, so the owners brought proceedings in the Canterbury County Court for possession and other relief. Pleadings were exchanged, and the case came on for trial in May 1977 with both sides legally represented. The learned judge took what has turned out to be an unfortunate course. Instead of finding the facts, which should have presented no difficulty and taken little time, he allowed a preliminary point of law to be taken, whether Case 10 applies to a case where there are joint owners one only of which requires the house as a residence. So the case has reached this House on hypothetical facts, the correctness of which remain to be tried. I, with others of your Lordships, have often protested against the practice of allowing preliminary points to be taken, since this course frequently adds to the difficulties of courts of appeal and tends to increase the cost and time of legal proceedings. If this practice cannot be confined to cases where the facts are complicated and the legal issue short and easily decided, cases outside this guiding principle should at least be exceptional

My Lords,

the legal issue in the present case is not an easy one. Case 10, and section 10 of the 1968 Act upon which it is based, say nothing about joint owners, or joint occupiers. To read, or not to read, the singular expressions ("person", "landlord") as including the plural, gives rise to difficulties, as the judgments below well demonstrate. In my opinion our task must be to attribute that reasonably admissible meaning to the language which will best carry out what appears to be the legislative intention.

The two alternative views are clearly and forcefully set out in the judgments of the Court of Appeal.

The first is that, for an order for possession to be made, the house must be required for the residence of both co-owners. This commended itself to Stephenson L.J. and Shaw L.J. There is no doubt that a powerful case can be made for it on the language used, and some further support may be derived from the Court of Appeal decision in McIntyre v. Hardcastle [1948] 2 Q.B. 82, decided on what became Case 8 in the same Schedule.

The second alternative is that there is no such requirement, and that each of the three conditions stated in Case 10 are on the agreed or assumed facts satisfied in the present case. First, Mrs. Tilling occupied the dwelling house as her residence. Secondly, she let it on a regulated tenancy. Third, she requires it as a residence for herself. On these facts, the court must make an order for possession. This was the opinion of Eveleigh L.J.

My Lords,

I propose to do little more than to say that, having to the best of my ability compared the weight of these rival arguments, and having carefully considered Miss Whiteman's printed case, I have come to the conclusion that on balance, the judgment of Eveleigh L.J. is to be preferred. The arguments in its favour are so clearly stated in the Lord Justice's judgment that nothing would be gained, and something might be lost, by my restating them in my own language. I will only add two observations.

First, the purpose of this piece of legislation, added to the bulky corpus of rent legislation in 1965, was to induce occupiers of dwelling-houses, who for some temporary reason desired, or had, to reside elsewhere for a time, to make their premises available for letting to others, on the basis that on their return they would be able, without dispute, to regain possession. (In cases within Case 10 an order for possession is mandatory.) The emphasis is upon occupation: the person concerned must have occupied the dwelling-house as his residence, and must require it as his residence, or that of a member of his family who resided with him when he last resided there. As compared with this emphasis on occupation and residence, ownership plays a subsidiary part. It enters into the matter only because of the inherent fact that the dwelling-house is let, and letting is effected by a landlord. But Case 10, and the policy behind it, is not, if I may personalise, interested in the landlord: he is not, as such, the key figure: that is the "owner-occupier". This consideration, to my mind, provides justification for avoiding a strict interpretation of the words "let it on a regulated tenancy"—the words which mainly, if not wholly, support the argument that one of two or more joint owners cannot satisfy the Case unless they both also require to reside in the house. I find it therefore possible to say that Mrs. Tilling, being at the time the occupier, when she decided to go to live elsewhere for a time, let her house on a regulated tenancy, even though, for the letting to be effective, Miss Dossett had to join in. This interpretation might, to a conveyancer, appear loose, but is one which might easily appear in common parlance. For the reasons I have given I do not think that the strict conveyancing meaning is intended to be imposed.

Secondly, as regards McIntyre v. Hardcastle the wording in Case 8 (which has a separate and much longer history, being derived through the Act of 1933 from that of 1920) is (relevantly) "where the dwelling-house is reasonably" required by the landlord for occupation as a residence for (a) himself ..." Here there is an identity between the person who has let the house and the person who requires it. There must then be great strength in the argument that if for one purpose the plural is deemed to be included in the singular, so it must for the other—plural landlords must require the house for themselves, not for one of them. This was the argument accepted by the Court of Appeal in McIntyre's case. But assuming the correctness of this (and I agree that the question remains open in this House), the argument under Case 10 is different. There is no imposed identity between occupier and landlord: there may be a plurality of landlords, but only one occupier, and it may be possible to say that one of these landlords has let. I find therefore no necessity, or indeed attraction, in following the earlier case.

I would allow the appeal and remit the case to Canterbury County Court to decide the case on the basis that Case 10 applies to the agreed or assumed facts.

As to the costs, while I have sympathy with Miss Whiteman as regards the burden which our expensive legal system places on litigants with small resources, I have to bear in mind that, for whatever reason, she did not pursue an application for legal aid in the Court of Appeal, or make an application in this House. Apart from the Legal Aid Fund there is no other fund of public money out of which the costs she is liable to pay can be provided. I can see no alternative to an order that she must pay the appellant's costs in this House and in the Court of Appeal.

Lord Diplock

My Lords,

I have had the advantage of reading in draft form the speech prepared by my noble and learned friend, Lord Wilberforce. For the reasons that he gives I agree that the appeal should be allowed.

Lord Salmon

My Lords,

Two elderly ladies, Mrs. Tilling and Miss Dossett, who are not related to each other, jointly own a cottage in the village of Staple, near Canterbury. Miss Dossett had once resided in the cottage with her friend Mrs. Tilling, but some time prior to the tenancy to which I shall presently refer, she went to live in Oxfordshire where she has ever since continued to reside. Mrs. Tilling was still living in the cottage immediately prior to 19th February 1975. The learned county court judge found it to be an agreed fact that both these ladies had occupied the cottage as their residence "Mrs. Tilling immediately before the tenancy, Miss Dossett some time earlier."

By an agreement in writing dated 19th February 1975, Mrs. Tilling and Miss Dossett, as joint owners of the cottage, let it furnished on a regulated tenancy to Miss Whiteman for a period of two years from 21st February 1975 at a weekly rent of £12.50. At the foot of this agreement the following notice appears:

" To the tenant . . . J. Whiteman. Take notice under the Rent Acts 1968 and 1974 that the landlord may recover possession of the premises under the provisions of Case 10 of Part II of Schedule 3 to the Rent Act 1968.

DATED 19th February 1975."

This notice was signed by both the landlords and beneath it there was an acknowledgment of its receipt signed by Miss Whiteman. Miss Whiteman however failed to deliver up possession of the cottage at the expiration of the two year term and still continues to reside there. On 4th March 1977 Mrs. Tilling and Miss Dossett began proceedings in the Canterbury county court against Miss Whiteman for possession of the cottage and mesne profits. Paragraph 4 of Particulars of Claim stated that the cottage which was jointly owned by the plaintiffs had formerly been occupied by the plaintiffs as their residence and is now required as a residence for the first plaintiff.

The case for the defendant was that the cottage being required as a residence for only one but not for both of the plaintiffs, their claim for possession must fail. This defence succeeded in the county court. The first plaintiff, who is legally aided, appealed from that decision but her appeal was dismissed by a majority in the Court of Appeal. The first plaintiff now appeals to your Lordships' House against the decision of the Court of Appeal.

The result of this appeal turns entirely upon the true construction to be placed upon Case 10 in Part II of the 3rd Schedule to the Rent Act of 1968. Part II is headed:

"Cases in which Court must Order Possession where Dwelling-House subject to Regulated Tenancy."

This heading derives from section 10(2) of the Act of 1968 which, so far as relevant, reads as follows:

"If ... the landlord would be entitled to recover possession of a dwelling-house which is for the time being let on or subject to a regulated tenancy, the court shall make an order for possession if the circumstances of the case are as specified in any of the Cases in Part II of Schedule 3 to this Act."

Case 10 reads as follows:

"Where a person who occupied the dwelling-house as his residence (in this Case referred to as 'the owner-occupier') let it on a regulated tenancy and— (a) not later than the relevant date the landlord gave notice in writing to the tenant that possession might be recovered under this Case, and (b) the dwelling-house has not, since 8th December 1965, been let by the owner-occupier on a protected tenancy with respect to which the condition mentioned in paragraph (a) above was not satisfied, and (c) the court is satisfied that the dwelling-house is required as a residence for the owner-occupier or any member of his family who resided with the owner-occupier when he last occupied the dwelling-house as a residence. "

In my opinion, it is plain from the opening words of Case 10 that the words "the owner-occupier" are only a kind of shorthand for the words "a person who occupied the dwelling-house as his residence [and] let it on a regulated tenancy." Accordingly, the latter words can properly be substituted for the former words where they appear in paragraph (c) of Case 10. This would, no doubt, make the language of paragraph (c) rather clumsy and may well explain why the shorthand version was introduced

Mrs. Tilling is, in my view, indubitably a person who occupied the dwelling-house as her residence and let it on a regulated tenancy. I entirely agree with Eveleigh L.J. when he says:

"The fact that two people do a thing together does not, in my understanding of the English language, prevent either one claiming that he himself did it. The argument to the contrary entails reading into the Act words something like "on his own"."

The majority of the Court of Appeal placed some reliance on the use of the words "the landlord" in paragraph (a) of Case 10. I will assume that these words may be read as "the landlords" when, as in the present case, there is more than one landlord. This, however, does not, in my view, assist Miss Whiteman. Paragraph (a) was complied with since the notice to the tenant was, in fact, signed by both the landlords. It follows, therefore, that

(1) Mrs. Tilling is a person who occupied the dwelling-house as her residence and let it on a regulated tenancy.

(2) The necessary notice referred to in paragraph (a) was duly served.

(3) The regulated tenancy expired on 21st February 1977.

and

(4) Mrs. Tilling may well satisfy the county court that she requires the dwelling-house as a residence for herself.

Accordingly, on what I regard as the true interpretation of Case 10, all its conditions may have been complied with.

The majority of the Court of Appeal in rejecting the above interpretation of Case 10 placed great reliance on McIntyre v. Hardcastle [1948] 2 K.B. (C.A.) 82. In that case, two sisters sought possession under Schedule I to the Rent Act of 1933 of a house they owned jointly on the ground that the house was required as a residence for one of them only. The court held that that Schedule did not entitle them to recover possession because the house was not required as a residence for both of them.

Case 8 in Part I of Schedule 3 to the Act of 1968 strongly resembles Schedule I to the Act of 1933. I shall not recite it as it is fully set out in the judgment of Stephenson L.J. I am afraid that I cannot agree that there is any similarity between the language of Case 8 and that of Case 10. Indeed not only the language but also the object of these two Cases are, in my view, strikingly dissimilar. Accordingly it seems to me that the decision in McIntyre v. Hardcastle as to the true interpretation of Schedule I to the Act of 1933 (substantially reproduced in Case 8) is of no assistance in interpreting the language of Case 10. It is not necessary for me to say any more about that decision; and I shall refrain from doing so. Although Case 10 cannot be described as a model of clarity, I am satisfied that the true interpretation of its language is that which I have stated.

Whilst I agree with Stephenson L.J. that Case 10 is capable of more than one interpretation I cannot, however, agree that the interpretation which I favour is likely to lead to any serious difficulty on the ground that the joint owners are likely to disagree on whether the dwelling-house should be occupied by the tenant or one of the owners. In the present case, for example, if Miss Dossett had considered that the dwelling-house should be occupied by Miss Whiteman rather than by Mrs. Tilling after the tenancy expired, it is unlikely that she would have signed the notice under paragraph (a) which she and Mrs. Tilling served upon Miss Whiteman, I recognise that it is possible that Miss Dossett might later have changed her mind and become hostile to Mrs. Tilling. But I do not understand how this possibility can affect what I regard as the true interpretation of Case 10 or even suggest that this construction can be contrary to the policy of the Act.

On the contrary, if the construction of Case 10 is to be affected by the policy which caused its introduction, that policy, in my view, strongly supports the construction of Case 10 which I favour. At the time when the Act of 1968 was passed, there existed and had for many years existed, a serious shortage of residential accommodation. There were many cases of persons in occupation of homes which they owned jointly who, for one reason or another, had to leave them temporarily, sometimes for considerable periods; they would have liked to let them during their absence, but refrained from doing so for fear of losing them for ever to their tenants. Accordingly, many homes remained unoccupied, which would otherwise have been let to persons urgently in need of them. Case 10 was in my view designed to safeguard persons who occupied their homes against the danger of losing them should they let them during their absence; and accordingly enabled more living accommodation to become available to the public than would otherwise have been the case.

I think, therefore, the construction of Case 10 which I favour is in accordance with the policy of the Act and with the public good. I am afraid that I cannot accept the other construction which could lead to absurd and unjust results. Suppose, for example, a husband and wife who are co-owners of their home have to live abroad for say two years on account of the husband's business activities. They then let their home for those two years and comply with all the provisions of Case 10. Unfortunately, the husband falls in love with another woman and his wife divorces him. They, however, remain comparatively friendly, and the husband is willing for his wife to live in their former matrimonial home. The tenancy has expired but the tenant refuses to leave. An action is brought by both the co-owners for possession. The defence is that the action cannot succeed because the house is required as a residence for one only of the co-owners. If the majority decision of the Court of Appeal is correct, the action would fail.

Take another example. Three sisters are living in a house. Two of them are co-owners of the house. The third has no legal or equitable title to it. The two co-owners and their sister leave the house to live abroad temporarily: the house is let for say two years and all the provisions of Case 10 are complied with. Both the co-owners then get married and decide to live abroad. The third sister returns to England. She is a member of the family of both the co-owners and resided with them when last they occupied the house as a residence. The tenant is sued for possession by the two co-owners on the ground that the house is required as a residence for their sister. There could be no defence to the action and the co-owners' sister would be enabled to reside in the house. Suppose, however, that the first co-owner's sister and the third sister had married and decided to live abroad whilst the second sister who was a co-owner returned to England and an action for possession was brought on the ground that the house was required as a residence for her. The action would fail because it could not succeed unless the house was required as a residence for both the co-owners. Yet an action to enable the house to be occupied by the sister who had no legal or equitable title to it would have succeeded. This does not seem to me to make any sense at all. But it is the inevitable result of what might happen unless the construction of Case 10 which I favour is correct.

For the reasons I have stated, I would allow the appeal and remit the case to the county court for the learned judge to decide the few issues of simple fact which, most unfortunately, he did not dispose of before making his findings on the points of law. I would order with reluctance that the costs in this House and in the Court of Appeal be paid by Miss Whiteman. There is, I think, no other course which your Lordships can take. I am extremely disturbed that such a heavy financial burden should fall upon Miss Whiteman's shoulders, particularly as it would have been avoided had she obtained legal aid: it may be that the Law Society will wish to consider whether there are any circumstances which might justify the order as to costs not being enforced.

Lord Fraser of Tullybelton

My Lords,

I regret that I am unable to agree with the view of my noble and learned friends with whom I heard the argument in this appeal. I can, therefore, have little confidence in my own view, but I shall express it as briefly as possible.

The appeal raises a question of construing words in Case 10, which is in Part II of Schedule 3 to the Rent Act 1968. Part II is headed " Cases in which Court must Order Possession where Dwelling-House Subject to Regulated Tenancy". Case 10 begins by describing the class of person for the benefit of whom, or whose family, it will operate if the other conditions are satisfied. The person has to be qualified in two ways.(1) He must have "occupied the dwelling-house as his residence" and

(2) he must have "let it on a regulated tenancy". The same person is referred to throughout, and he must have both occupied and let the house. His dual character is appropriately recognised in the statutory description of him as "the owner-occupier". The present case proceeds upon an agreed statement of facts, which shows that (and I paraphrase):

(1) The house is jointly owned by two ladies, Mrs. Tilling, the appellant, and Miss Dossett, who are not related.

(2) It was occupied by both of them, though only the appellant was occupying it immediately before it was let to the respondent.

(3) It was let to the respondent under a lease to which the joint owners were one party, described in the lease as "the landlord".

(4) It is now required as a resident for only one of the joint owners, the appellant.

In these circumstances it seems to me that the "person" who let the house was the composite person consisting of both joint owners. Neither owner separately let the house. It may be that one of them could have let the house without the concurrence of the other, so far as the rest of the world is concerned, but that is not what happened. It follows that the only person who falls within the statutory description of "the owner-occupier" is the composite person and as the house is not required as a residence for that person, the claim for the appellant alone must fail.: Like Stephenson and Shaw L.JJ. I can seen no acceptable answer to that simple argument. With all respect to those who think otherwise, I do not regard it as right or possible to read the word "let" in the first clause of Case 10 as if it meant "concurred in letting". Even if one joint owner could truthfully say in casual conversation that she had let the house, a matter on which I feel serious doubt, it does not follow that the statute, which is expressed in precise language, can be read in the same way. The singular "person" can, of course, be read as including the plural, see Interpretation Act 1889. If it is read as meaning the plural here, then so also must "the owner- occupier" be read in the plural, with the result that paragraph (c) of Case 10 will only apply where the house is required by both owner-occupiers or a member of their joint family as a residence.

Some support for my view is found in McIntyre v. Hardcastle [1948] 2 K.B.82, though that is not directly in point as it was dealing with what later became Case 8 of Schedule 3 to the 1968 Act, where the wording differs materially from the wording of Case 10. Nevertheless, I would adopt the words of Tucker L.J. at page 90, where he said

"I do not think that the legislature really contemplated this situation when this paragraph was framed. Therefore, I feel driven to interpret it merely in the light of the actual language used."

That is what I have tried to do.

I do not find any assistance in the policy of section 10 of the Act, which is the section authorising Schedule 3. No doubt section 10 is intended to benefit owners, and to increase the supply of houses for letting, but it is an exception to the main policy of Part II of the Act, which evidently is to give security of tenure to tenants. The question is what are the limits of the exception, and the answer must, I think, be found simply in the words used by Parliament. I would only add that, on the facts as known to me, it appears that the merits of the present dispute are on the side of the appellant rather than of the respondent, but that cannot justify straining the words of the Act in her favour.

I would refuse the appeal.

Lord Scarman

My Lords,

I have had the advantage of reading in draft the speech delivered by my noble and learned friend, Lord Wilberforce. I agree with it. I would allow this appeal for the reasons given by Eveleigh L.J. in his dissenting judgment. I also agree that the appellant should have her costs before this House and in the Court of Appeal.

The case presents two disturbing features. First, the decision in the county court was upon a preliminary point of law. Had an extra half-hour or so been used to hear the evidence, one of two consequences would have ensued. Either Mrs. Tilling would have been believed when she said she required the house as a residence, or she would not. If the latter, that would have been the end of the case. If the former, your Lordships' decision allowing the appeal would now be final. As it is, the case has to go back to the county court to be tried. Preliminary points of law are too often treacherous short cuts. Their price can be, as here, delay, anxiety, and expense. Secondly, it is a tragedy that Miss Whiteman, who has appeared in person in the Court of Appeal and before this House because of the expense of legal representation, was not legally aided. She had an eminently arguable case and, if legally aided, would have been protected against the burden of costs which under our law falls upon the unsuccessful litigant. Perhaps she was above the very modest limits set to eligibility for legal aid. But there are indications that she chose not to apply. I wonder whether she fully understood the protection offered a litigant by legal aid. Surely those who helped her with advice (and she did have advisers, legal and lay, at various times) might have persuaded her. Perhaps they tried and failed. But the result, whatever its cause, is a financial disaster for her.

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