WOODSPRING DISTRICT COUNCIL Appellants v DONALD OLIVER TAYLOR JUNE MAVIS TAYLOR Respondents

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM WESTON SUPER MARE COUNTY COURT
HIS HONOUR DEPUTY JUDGE MERRETT

Royal Courts of Justice
Monday, 10th May, 1982

Before:
LORD JUSTICE WALLER
LORD JUSTICE O'CONNOR
SIR GEORGE BAKER

WOODSPRING DISTRICT COUNCIL Appellants
v
DONALD OLIVER TAYLOR
JUNE MAVIS TAYLOR Respondents

(Transcript of the Shorthand Notes of The Association of Official Shorthand­ writers Limited, Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London, W.C.2.)

MISS S. HAMILTON (instructed by Messrs. Sharpe Pritchard & Co., London Agents for J. H. Bailey, Esq., Weston Super Mare) appeared on behalf of the Appellants.

MR. P. E. FORREST (instructed by Messrs. Barry Walker & Co., Weston super Mare) appeared on behalf of the Respondents.

JUDGMENT
(Revised)

LORD JUSTICE WALLER: This is an appeal from a decision of Mr. Merrett, sitting as an Assistant Recorder, when he ordered a new trial of a decision which had been made by the registrar.

The situation was this. The plaintiff council were claiming possession of a house occupied by the two defendants. The house was no. 10 Winscombe Road, Weston super Mare. The defendants had been tenants of that house for 24 years but, at the date of the hearing, they were in considerable arrear with their rent. When the particulars of claim were issued the amount owing was some £557 odd and, by the time of the hearing, was even more than that. The council had decided to take proceedings in July of last year and, in due course, the proceedings came on before the registrar on 8th October 1981. The applicants appealed to Mr. Merrett and, he having ordered a new trial, His Honour Judge Sir Ian Lewis granted an extension of time and granted leave to appeal to this court.

The case for the appellants, the Woodspring District Council, is this. The case was heard before the registrar with the consent of the tenants, and the registrar heard all the evidence and decided that it was proper to grant an order for possession. He was applying section 34 of the Housing Act 1980 which had the effect of giving judicial control of tenancies of local authorities. By section 34 it was provided that:

"The court shall not make an order for the possession of a dwelling-house let under a secure tenancy except on one or more of the grounds set out in Part I of Schedule 4 to this Act and shall not make such an order on any of those grounds unless the ground is specified ..."

and the ground on which this application was made was that the tenant was in arrear. That was Ground 1 in the schedule in Part I of Schedule 4:

"Any rent lawfully due from the tenant has not been paid or any obligation of the tenancy has been broken or not performed"

Sub-section (2) of section 34 provides:

"The court shall not make the order - (a) on any of grounds 1 to 6, unless the condition in sub-section (3)(a) below is satisfied;"

and (3)(a) provides:

"that the court considers it reasonable to make the order;"

So the situation was that the registrar, in dealing with the case, could only make an order for possession, firstly, if rent was owed - that was clearly proved - and, secondly, if he considered it reasonable to make the order.

The appeal to the Assistant Recorder sitting as the judge at Weston super Mare was conducted by Mr. Forrest. It had been conducted by the tenants in person before the registrar. The situation outlined to the Assistant Recorder was this. The defendants are man and wife; they have lived in the property since 1957; they are both aged in their middle fifties. There were no problems vis a vis the landlords, the district council, until late 1979 when Mr. Taylor, the male defendant, became unemployed. He had a very large tax demand of £500 which he could not meet. His wife was a diabetic and became ill and there was also, we are told, a question of asthma. The notice of appeal which the defendants had put in was this:

"We wish to appeal against eviction from our home. Judgment was passed that, if my husband didn't get employment within 28 days, we were to be evicted from our home even though the rent is being paid by the D.H.S.S. plus £1.20 off the arrears a week. Woodspring Council has sent rent card and we are paying a further £1 per week off the arrears. My husband is 55 years old and his chances of getting employment are very slim. He has written off for several jobs but to no avail. I am a diabetic and am also under a blood specialist. We have nowhere to go. This has been our home for 24 years. We havebrought up our family here and are respected by our neighbours and cause no harrassment to anyone."

The Assistant Recorder, in considering those facts and the fact that the council were having the rent paid plus £1 off the arrears by the Department of Health and Social Security, must have come to the conclusion that no reasonable registrar could properly take the view that it was reasonable to make the order for possession.

That is the sole question with which this court is concerned: could the Assistant Recorder properly come to that conclusion? Speaking for myself, I am bound to say that I find no difficulty in saying that he could properly have come to that conclusion. When one considers that there are two people who have been, so far as we know, good tenants for over 20 years and have only recently fallen into arrears - albeit serious arrears because they were £700 by the time the hearing came before the court - and when one of them has become unemployed

and in tax difficulties and that is the reason why they are in arrear, and the other is an invalid suffering from diabetes and having problems requiring the services of a blood specialist, I find no difficulty in saying that it is hard to understand a conclusion that it was reasonable to make an order turning them out of their house.

Before us Miss Hamilton has sought to say that really there are no grounds for saying that that original order could be unreasonable. She has mentioned one possibility which was not before the Assistant Recorder, namely that the defendant had received money from the Ministry which had not been used for the payment of rent. There are two difficulties about that. There is no evidence of that anywhere in the papers and in the agreed note of what went on before the Assistant Recorder there is no mention of anything of that kind. He says positively:

"(c) the Department of Health and Social Security eventually stepped in in July 1981 and have since paid the rent direct at the same time deducting a weekly sum of £1.23 for arrears;".

In my judgment it is quite impossible to interfere with the decision of the Assistant Recorder. He is perfectly entitled to come to the conclusion that he did come to and I would dismiss this appeal.

LORD JUSTICE O'CONNOR: I agree the appeal should be dismissed for the reasons given by my Lord. I would only add, in deference to the submissions made by Miss Hamilton on behalf of the local authority, that, in so deciding it, it is not meant and cannot be taken to mean that I think that Order 37 Rule 5 gives an unfettered right of appeal from the registrar to the judge in the county court. Quite plainly, on the authority of Brown v. Dean & anr. (1910) AC 373 as applied by this court in Devenish V. P.D.I. Homes (Hythe) Ltd. (1959) 1 WIR 1188, Order 37 Rule 5 does not give the right to any dissatisfied litigant to appeal to the judge as is given by Order 13 Rule 1(h) of the County Court Rules.

But what it does mean is that, where an application is made to the judge either to set aside the registrar's order or for a re-hearing, good grounds must be put before the judge to whom the application is made; and, quite obviously, a

good ground is that, where the question at issue is the exercise of discretion by the registrar, the Order or Rules for interfering with discretion apply and, as my Lord has said, I cannot think that, in the present case, it was wrong for the Assistant Recorder to conclude that no reasonable registrar could have exercised his discretion as this registrar had done and so order a re-hearing.

For those reasons I, too, would dismiss this appeal.
SIR GEORGE BAKER: I agree with all that my Lords have said.

Order: Appeal dismissed with costs. Legal aid taxation of Respondents' costs.