London Borough of Harrow v. Johnstone [1997] UKHL 9

House of Lords
Between
London Borough of HarrowAppellantJohnstoneRespondent
Before
Lord Browne-WilkinsonLord Jauncey of TullichettleLord MustillLord HoffmannLord ClydeDate 13 March 1997
[1]The letter was not a genuine notice to quit because it formed part of the Council's plan to re-house the wife.[2]The wife should probably have tried to get the injunction varied. When the Council learned of the position on 15 April the position could have been rectified. Instead the proceedings were instituted.[3]By giving the notice the wife was in breach of the injunction. The Council had aided and abetted the breach and "in a sense" were in contempt of court.[4]The judge had grave doubts about the validity of the notice which was procured by the council for its own convenience.[5]In any event even if the notice were valid the judge would not grant possession as this would be perpetuating the breach. 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.(i) The wife might well have been in contempt of court by serving the notice to quit.(ii) More importantly, the local authority should be so regarded because with knowledge of the injunction they sought possession although her husband was protected from eviction at her suit. The fact that the Council was not a party to the injunction was not to the point.(iii) The institution of the proceedings was an interference with the administration of justice because it sought to achieve a result which, whilst the injunction was still in progress, was not open to the wife whose act was an essential link in the obtaining of possession by the Council. See Attorney-General v. Newspaper Publishing Plc [1988] Ch. 333.[2]Sir Roger Parker agreed with Russell L.J. in the result, but reached it by a different route, as follows.(i) There was no doubt that the intention of the county court when granting the injunction was that the husband should remain in possession of the premises until further order and that the wife should not take any action to exclude him from such occupation.(ii) Hammersmith and Fulham London Borough Council v. Monk , supra, did not avail the wife. There was no difference between a mandatory order to assent by silence and an order not to give a notice. The act enjoined was the giving of notice.(iii) Even if the court had not contemplated the possibility of an interference with property rights, it was concerned to prevent a result, namely, the exclusion of the husband from occupation, or an attempt to procure that result, by whatever means.(iv) Since the wife was clearly in breach, it followed that in instituting and pursuing the proceedings after it learned of the injunction, the Council was in abuse of the process of the court.(v) Quite apart from this it was aware that the marriage was in difficulties and must be taken to have been aware that the fate of the joint tenancy might be a matter to be dealt with in divorce proceedings. It should not have proceeded in such circumstances without any enquiry.(vi) The question whether the notice was invalid had not been pursued, but in any future proceedings it might be for consideration whether Clause 19 of the tenancy, read with the Housing Act 1985 and the Matrimonial Homes Act 1983 would take the case out of the decision in Hammersmith and Fulham London Borough Council v. Monk .[3]Hobhouse L.J. disagreed with the conclusion and the reasoning of the other members.(i) In the light of the Monk case he distinguished the wife's letter from an ordinary notice to quit. It merely signified her unwillingness to continue as a joint tenant for the succeeding period.(ii) The letter related solely to her unwillingness to extend further the period of the joint tenancy. It was not a positive act.(iii) To require her to give her consent would have required a different kind of order from the one actually made; and there was no suggestion that the application for the order was made on any such basis.(iv) The Council's possession action derived from the fact that the husband no longer had any right to remain in the house. Neither she nor the council excluded him from the house in breach of the order; he no longer had any right to be there.(v) As to the alternative argument that the Council's conduct was abusive because of the possibility of a further order in the divorce proceedings, there was no factual basis for saying that in such proceedings the husband would be assigned any rights in respect of the house. 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:
"For a large part of this century there have been many categories of tenancy of property occupied for agricultural, residential and commercial purposes where the legislature has intervened to confer upon tenants extra-contractual rights entitling them to continue in occupation without the consent of the landlord, either after the expiry of a contractual lease for a fixed term or after notice to quit given by the landlord to determine a contractual periodic tenancy. It is primarily in relation to joint tenancies in these categories that the question whether or not notice to quit given by one of the joint tenants can determine the tenancy is of practical importance, particularly where, as in the instant case, the effect of the determination will be to deprive the other joint tenant of statutory protection. This may appear an untoward result and may consequently provoke a certain reluctance to hold that the law can permit one of two joint tenants unilaterally to deprive his co-tenant of 'rights' which both are equally entitled to enjoy. But the statutory consequences are in truth of no relevance to the question which your Lordships have to decide. That question is whether, at common law, a contractual periodic tenancy granted to two or more joint tenants is incapable of termination by a tenant's notice to quit unless it is served with the concurrence of all the joint tenants. That is the proposition which the appellant must establish in order to succeed. "
As a matter of principle I see no reason why this question should receive any different answer in the context of the contractual relationship of landlord and tenant than that which it would receive in any other contractual context. If A and B contract with C on terms which are to continue in operation for one year in the first place and thereafter from year to year unless determined by notice at the end of the first or any subsequent year, neither A nor B has bound himself contractually for longer than one year. To hold that A could not determine the contract at the end of any year without the concurrence of B and vice versa would presuppose that each had assumed a potentially irrevocable contractual obligation for the duration of their joint lives, which, whatever the nature of the contractual obligations undertaken, would be such an improbable intention to impute to the parties that nothing less than the clearest express contractual language would suffice to manifest it. Hence, in any ordinary agreement for an initial term which is to continue for successive terms unless determined by notice, the obvious inference is that the agreement is intended to continue beyond the initial term only if and so long as all parties to the agreement are willing that it should do so. In a common law situation, where parties are free to contract as they wish and are bound only so far as they have agreed to be bound, this leads to the only sensible result. "Thus the application of ordinary contractual principles leads me to expect that a periodic tenancy granted to two or more joint tenants must be terminable at common law by an appropriate notice to quit given by any one of them whether or not the others are prepared to concur . . . ." His Lordship then examined the reported decisions to see whether they displaced his reasoning, and continued, at p. 484:
"Hence, from the earliest times a yearly tenancy has been an estate which continued only so long as it was the will of both parties that it should continue, albeit that either party could only signify his unwillingness that the tenancy should continue beyond the end of any year by giving the appropriate advance notice to that effect. Applying this principle to the case of a yearly tenancy where either the lessor's or the lessee's interest is held jointly by two or more parties, logic seems to me to dictate the conclusion that the will of all the joint parties is necessary to the continuance of the interest."
Lord Bridge concluded his analysis, at pp. 490-491:
"Finally, it is said that all positive dealing with a joint tenancy require the concurrence of all joint tenants if they are to be effective. Thus, a single joint tenant cannot exercise a break clause in a lease, surrender the term, make a disclaimer, exercise an option to renew the term or apply for relief from forfeiture. All these positive acts which joint tenants must concur in performing are said to afford analogies with the service of notice to determine a periodic tenancy which is likewise a positive act. But this is to confuse the form with the substance. The action of giving notice to determine a periodic tenancy is in form positive; but both on authority and on the principle so aptly summed up in the pithy Scottish phrase 'tacit relocation' the substance of the matter is that it is by his omission to give notice of termination that each party signifies the necessary positive assent to the extension of the term for a further period."
My Lords, in the light of these principles it seems to me quite beyond doubt that, absent the special procedural background, the wife's notice to the Council of 22 March 1994 was effective to allow the joint tenancy to terminate on the expiry of the notice. I am unable to see how clause 19 of the tenancy agreement could lead to any other result, nor has anything in the Housing Act 1985 been identified which could alter the position. The husband's right to remain in occupation, and the security of tenure which he had hitherto enjoyed, came to an end on the due date for renewal. Other things being equal, the husband remained in the house without legal warrant, and the Council was entitled to take steps to remove him. The question is whether, in the particular circumstances, other things were indeed equal. The husband maintains that they were not, for two quite distinct reasons. The first depends on the injunction of 3 February 1994. It is said that, by giving the notice of 22 March 1994, the wife was in breach of the injunction and that all the subsequent acts of the wife and the Council are either inherently flawed or were abusive and hence unenforceable. An examination of this argument must begin with the terms of the injunction. Did the requirement that the wife should not "exclude or attempt to exclude" the husband from the house prohibit her from notifying the Council that the tenancy would not be renewed? As background, it is useful to consider what powers might have been available to the judge when he ordered the wife not to "exclude" the husband from the house. The following were mentioned in the course of argument. (I set out the legislation as it existed at the relevant time, since this was the context of the injunction.)[1]Under section 24(1) of the Matrimonial Causes Act 1973 the court could make a property adjustment order requiring one spouse to transfer to the other any property to which the former was entitled. This power arose only on the granting of a decree of divorce.[2]Under section 7 of and paragraphs 1 and 2 of Schedule 1 to the Matrimonial Homes Act 1983 where one spouse was entitled jointly with the other spouse to occupy a dwelling house as a secure tenant the court could direct that there should be transferred to and vested in the latter the interest which the former had in the dwelling house by virtue of the lease. This power arose only on the granting of a decree of divorce.[3]Under section 9 of the Matrimonial Homes Act 1983, read with section 1 thereof, in cases where two spouses were each entitled by virtue of (inter alia) contractual or statutory rights to occupy a dwelling house, the court had power to make an order prohibiting, suspending or restricting the right of one spouse to exercise the right of occupation, or requiring that spouse to permit its exercise by the other. The court was required when making use of this power to have regard to the conduct of the spouses, their respective needs and financial resources and the needs of the children.[4]Under section 37 of the Matrimonial Causes Act 1973 the court, if satisfied that one spouse was about to make a disposition or otherwise deal with property with the intention of frustrating or impeding the enforcement of an order for financial relief claimed by the other spouse under (inter alia) section 24 of that Act (see item 1 above), could make an order restraining the former from doing so or otherwise protecting the claim. Such an order could only be made in the proceedings in which the relief under section 24 was claimed.[5]Under section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 the court had the power to make an order(a) restraining one spouse from molesting the other,(b) restraining one spouse from molesting a child living with the other,(c) excluding one spouse from the matrimonial home, and(d) requiring one spouse to enter and remain in the matrimonial home. The power could be exercised whether or not any other relief was claimed in the proceedings. "Molesting" has been interpreted as including such a degree of "harassment" as to call for the intervention of the court. The order could be made ex parte but should be strictly limited in time; and it should refer specifically to the statute under which the jurisdiction was assumed. (See, generally, the note "Procedure" at p. 1043 of The County Court Practice 1996.)[6]It has been held that the court has jurisdiction under its general statutory powers of granting injunctive relief to make orders protecting financial and proprietary remedies which may be awarded in the future even if section 37 of the Matrimonial Causes Act 1973 is not available because the prescribed conditions are not satisfied: Shipman v. Shipman [1991] 1 F.L.R. 250, and see also Roche v. Roche (1981) Fam. Law 243. Looking though this list it is plain that most of the items on it have no bearing on Judge Krikler's order. Relief under section 24 of the Act of 1973 and Schedule 1 to the Act of 1983 could be granted only on decree and at that time there was none. The order obviously was not made under section 9 of the Act of 1983, as the discretionary balancing exercise required of the court could not have been performed ex parte on the material put before the judge. And the order could not have been made under section 37 of the Act of 1973, since this was available only on an application made in matrimonial proceedings and the husband's application was not so made. There remain the last two grounds on which Judge Krikler might have exercised jurisdiction. The choice between them seems quite clear. Let us look at how the case proceeded. The husband's application was led by an affidavit alleging that the wife had assaulted him and locked him out of the house. The application was typed on a printed form reciting the Domestic Violence and Matrimonial Proceedings Act 1976. It invited the court to make orders:
"That [the wife] be forbidden . . . from: 1. To use or threaten to use violence upon the applicant. 2. To harass threaten pester or otherwise interfere with the Applicant; (3) To leave and not return to the former matrimonial home situate and known as 5 Waghorn Road, Kenton, Harrow, Middlesex; (4) To remove or attempt to remove the children of the family from the day to day care of the applicant or attempt to remove from the jurisdiction," and concluded with the words: "
And that the respondent not prevent the applicant from returning to 5 Waghorn Road . . ." Regrettably, even on this second appeal neither side is able to provide any information about what happened when this application came before the judge. It is not even known whether the ex parte application was followed, as it should have been, by inter partes proceedings; and if so, with what result. What we do know, however, is that an injunction was made in the terms already recited: an injunction which so far as is known the wife has never sought to discharge or vary. My Lords, reading this application together with the statute which it invoked and with the terms of the order as made it is in my view absolutely plain that the prohibition against excluding the husband was not intended to be a mandatory order requiring the wife to co-operate in maintaining in force the rights created by the joint tenancy pending the adjustment of those rights on a future date in proceedings not yet started. The application was made at a time of crisis when the husband had been locked out of the house and wanted to get back in. His concern was that his wife had excluded him from the exercise of the rights of occupation which he undoubtedly possessed under the joint tenancy. There is no sign in the documents of an apprehension on his part that the rights themselves were under threat and would require protection by an order requiring the wife to keep the tenancy in being. If the court was to grant something on the lines of a mandatory Mareva -like injunction the first step was to ask for one. This the husband did not do. Instead he invited the court to make an order designed to ensure that the molestation of which she was accused did not happen again. The Domestic Violence and Matrimonial Proceedings Act 1976 was the right vehicle for such an order, and although the injunction actually issued did not follow precisely the wording of the Act I have no doubt that this was the foundation of the order which Judge Krikler intended to make and did make. As such it was concerned with the exercise of rights under the tenancy and not with the continued existence of the rights themselves. On this view the husband's first line of argument fails at the outset. There remains the husband's second line of argument, based not on the husband's rights but on the general interest of preserving the integrity of the judicial process. It was based primarily on Attorney-General v. Times Newspapers Ltd. [1992] 1 A.C. 191, reinforced by Attorney-General v. Leveller Magazine Ltd. [1979] A.C. 440. The former case arose from successive attempts by newspapers to publish materials drawn from a work named Spycatcher , said to infringe the confidentiality of information about the activities of the British security services. In one set of proceedings the Attorney-General was seeking a final injunction against certain newspapers to restrain the publication of such materials and had obtained an interlocutory injunction pending trial. This injunction attracted widespread publicity. Later, "The Sunday Times" began to serialise extracts from Spycatcher , which by now was on the verge of sale in the United States. The Attorney-General instituted further proceedings against the proprietors of that newspaper and its editor, alleging that although they were not parties to the injunction they had knowingly impeded the proper conduct of the confidentiality action in which it had been granted, since once material was made public the purpose of that action was gone. This submission prevailed in your Lordships' House. My Lords, the decision in the Spycatcher case could not by any stretch be applied directly to the present appeal. It depended on four circumstances. There were proceedings in existence between the Attorney-General and the first group of defendant newspapers which would be fruitless if anyone made public the information whose confidentiality the proceedings were brought to assert. There was in force an injunction, admittedly not directed to anyone except the first group of newspapers, but obviously intended to stop the publication by any medium of materials which would compromise the pending proceedings. The editor and publishers of "The Sunday Times" knew of the injunction and understood its purpose. Accordingly they knew that if they published extracts from the book they would frustrate both the purpose of the injunction and the purpose of the action itself. Their choice to publish was treated by the courts below (and this was no longer challenged before the House) as justifying the inference of an intention to interfere with the course of justice. None of these features is present here. It could not I think seriously be maintained that the Spycatcher case binds the House to decide in favour of the husband. The argument on his behalf is more oblique. Before addressing it I must point out one feature which does not stand in its way. At first sight the most conspicuous difference between the Spycatcher case and the present lies in the existence of an injunction which although not directed to other newspapers had the obvious purpose of preventing just the kind of act which "The Sunday Times" deliberately carried out. References to this injunction recur throughout the arguments and judgments, and its presence overshadows the entire case. Nevertheless it was not the mainspring of the decision, for every member of the House was at pains to emphasise that the submission for the Attorney- General did not depend on giving the injunction any binding effect on The Sunday Times. It is not perhaps entirely clear what the reasoning of the House would have been if the injunction had not existed at all. A lead towards the answer is, I believe, given by Lord Oliver of Aylmerton, at p. 224, in the following passage:
"If the court has taken into its hands the conduct of the matter to the extent of ordering the interim preservation in the interest of the plaintiff so that the issue between him and the defendant can be properly and fairly tried, it has to be accepted that that is what the court had determined that the interests of justice required. The gratuitous intervention of a third party intended to result in that purpose being frustrated and the outcome of the trial prejudiced, must manifestly interfere with and obstruct what the court has determined to be the interests of justice. Those interests are not dependent upon the scope of the order."
This reasoning shows, I believe, that even where there is no injunction to make explicit the importance of preserving the subject matter of an action until trial a wanton destruction of that subject matter, with the intention of impeding a fair and fruitful trial, is capable of being a contempt of court; and indeed I would myself have been willing to recognise this possibility even without the guidance of the House. It does, however, appear to me that even on this footing the differences from the Spycatcher case are fatal to this branch of the husband's case. No proceedings designed to yield proprietary relief were in existence at the relevant time. There was no reason for the Council to be aware of any aspect of the matrimonial relationship except that the wife had moved out and was serious enough about wanting to live separately to apply for rehousing. No inference of an intention to frustrate the aim of the proceedings could be drawn from the Council's dealings with the wife (whatever exactly they were) since there were no proceedings to frustrate. Without such an intention an allegation of contempt would be quite unsustainable, even if the activities of the wife and the council did stand in the way of whatever remedies in relation to the tenancy the husband might subsequently have tried to obtain. Counsel for the husband were thus compelled to advance an argument much more extreme than any relied upon in the Spycatcher case, to this effect. Faced with a spouse who showed real signs of desiring a permanent end to the marriage the Council should have foreseen that there already were, or in the future might be, proceedings in which the court would be called on to address the proprietary rights of the spouses, including the valuable (if vulnerable) security of tenure of the house; it should also have foreseen that the destruction of the tenure would cause irreparable damage to the husband, since the loss of his tenancy coupled with the rehousing of the wife might critically determine the question of where the young children lived; even if it was not at first in possession of enough information to form a judgment the Council should have informed itself by making enquiries; and having done so should have abstained from joining with the wife in any course of action which might put out of the husband's reach the possibility of obtaining some kind of relief in any proceedings which he or the wife might, in the parlous state of the marriage, ultimately come to begin. My Lords, I acknowledge the appeal of this argument in human terms. We know insufficient of the marital discord to say that the wife was in the wrong, but at least there was sufficient merit on the husband's side for him (rather unusually, given the reversal of gender) to obtain an anti-molestation order which the wife has never tried to displace. Nevertheless, I see no ground to treat the notice by the wife as ineffectual, and still less to convict the Council of a wrongful intention to frustrate the ends of justice. Exactly what passed between the council and the wife has never been investigated, as it should have been if they were to be held in contempt. One may, however, test the matter by envisaging a situation where the wife came to the council and simply asked to be rehoused; where the official explained that this could not be done because she was already a tenant; where she told the official that she no longer wanted to keep the joint tenancy in being and asked what to do; where the official recommended that she should take legal advice; and where her lawyer, familiar with the principle of Monk , prepared the notice which was in fact served. Would it be possible to say that anyone involved had acted in contempt of court? Surely not. All one needs, then, to reach the present case is to telescope the course of events. The contrast between this case and the Spycatcher case is obvious. There, the newspaper defiantly acted in detriment to the obvious interests of justice. Here, the Council simply carried through the logic of its housing policy, that one person could not have two council tenancies at the same time. I find it impossible to hold that by putting its statutory duty as housing authority before the interests of a matrimonial relationship of which it was not the guardian the Council contemptuously subverted the authority of the court or intentionally nullified the aims of any legal proceedings. This being so I can see no ground upon which it could be held that the dealings of the Council with the wife and the husband were completely ineffectual, leaving the parties in the same position as if the notice had never been given. The conclusion is to my mind inescapable that by the time the matter reached Judge Hutton the interest of the husband under the tenancy had come to an end by effluxion of time, so that there was no longer any ground on which he could deny the Council the right to resume possession of the house. These conclusions are sufficient to dispose of the appeal, and I therefore abstain from expressing a decided opinion on the matters discussed in the speech of my noble and learned friend Lord Hoffmann. As at present advised, however, I would respectfully agree with the first of the points which he makes, and as to the second it is important to note the concession made by counsel in Newlon Housing Trust v. Al- Sulaimen (The Times, 24 January 1997). The correctness of this concession may, I believe, have to be examined if the point comes before the courts again. However this may be, in my opinion the judgment of Hobhouse L.J. was right, and I would allow this appeal. Much may have happened in the years since the question was before Judge Hunter, and the whole merits of the matrimonial situation may by now be seen in a different light. Nevertheless, I consider that the Council was entitled to an order for possession in August 1994, I would propose to your Lordships that such an order should now be made. LORD HOFFMANN My Lords, I have had the opportunity of reading in draft the speech of my noble and learned friend Lord Mustill and I agree that, for the reasons which he gives, this appeal should be allowed. The order made by Judge Krikler did not restrain the wife from serving a notice to quit upon the Council. But since there is likely sooner or later (probably sooner) to be a case in which, at the time when the notice was served, an order to this effect had been or could have been made under one or other of the jurisdictions enumerated by my noble and learned friend, I would offer some observations on what the consequences would be. In my view, the existence of an injunction could not in itself vitiate the notice given by the wife. The principle laid down by this House in Monk is that the term created by the grant of a periodic joint tenancy is defined by reference to the absence of a notice by the landlord or one or other of the joint tenants signifying that he is not willing that it should continue. If this negative condition is not satisfied, the term comes to an end. For my part, I do not see how the existence of an injunction against the wife in proceedings to which the landlord was not a party and of which it had no knowledge could enable a court to deem the negative condition to be satisfied. The case against doing so would be much stronger than in Chapman v. Honig [1963] 2 Q.B. 502 in which a notice to quit was held valid notwithstanding that the landlord seeking to uphold its validity had himself given it in contempt of court. In this case the landlord would not have given the notice or been party to any contempt. If no injunction had been granted before service of the notice, there may be a question as to whether the joint tenant remaining in occupation can resist an order for possession by invoking the jurisdiction under section 37(2)( b ) of the Matrimonial Causes Act 1973 to set aside the notice as a "reviewable disposition." In the recent case of Newlon Housing Trust v. Al-Sulaimen (The Times, 24 January 1997) it was conceded by counsel that the notice, or the termination of the tenancy pursuant to the notice, was a "disposition" within the meaning of the section. But, as at present advised, I feel bound to express my doubt as to whether this concession was rightly made. A notice to determine a periodic tenancy is not in my view equivalent to the assignment or surrender of that tenancy. There is no interest which passes to the landlord, whether intact or so as to merge in his reversion. At the time when the notice takes effect, there is nothing to assign or surrender. What happens is simply that the interest comes to an end in accordance with the conditions by which it is defined, just as a life interest comes to an end upon the death of the tenant for life. In neither case is there in my view a disposition. The definition of "disposition" in section 37(6) is non-exhaustive and therefore perhaps inconclusive, but it should be noted that the jurisdiction to grant injunctions under 37(2)( a ) is much wider than the jurisdiction to set aside dispositions under section 37(2)( b ). The former exists not merely when the respondent is about to make a disposition but also when he is about to "deal with" any property. I express no view upon whether giving notice would be a "dealing" with the joint tenancy, but the expression is plainly wider than "disposition" and this in my view makes it unlikely that Parliament intended "disposition" to be given in this context an unnaturally wide meaning. LORD CLYDE My Lords, I have had the advantage of reading a draft of the speech of my learned and noble friend Lord Mustill and for the reasons he gives I too would allow this appeal.

Cited in 8 later judgments