B2/2005/1218
Neutral Citation Number: [2006] EWCA Civ 124
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LAMBETH COUNTY COURT
(HIS HONOUR JUDGE GIBSON)
 
Royal Courts of Justice 
Strand 
London, WC2 

Friday, 27 January, 2006
 
B E F O R E:

LORD JUSTICE CHADWICK

LORD JUSTICE LONGMORE

MR JUSTICE LEWISON
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LONDON BOROUGH OF SOUTHWARK

CLAIMANT/APPELLANT
- v -

ELIZABETH O’SULLIVAN
FLORENCE O’SULLIVAN

DEFENDANT/RESPONDENT
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DANIEL GATTY (instructed by Thomas & Co Solicitors) appeared on behalf of the Appellant.
LISA SINCLAIR (instructed by Legal Services Department, London Borough of SOUTHWARK) appeared on behalf of the Respondent.
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J U D G M E N T 
1.	MR JUSTICE LEWISON:  This is an appeal brought with the permission of the judge from an order made by HHJ Gibson in the Lambeth County Court on 5 May 2005, following the trial of three preliminary issues, which HHJ Cox had ordered to be tried on 22 October 2004.  Although witness statements had been served on each side, Judge Gibson heard no evidence and the issues were argued before him as pure questions of law.  In the result, Judge Gibson made an Order for Possession of 8 Cicely Road, London SE15 against Mr Florence O’Sullivan.  Mr O’Sullivan appeals against that order.  In the following narrative I must make it clear that the facts have not yet been found and I am recording evidence which may turn out to be contentious.

2.	In 1998 the London Borough of Southwark (“the Council”) granted a weekly tenancy of 8 Cicely Road to Mrs Elizabeth O’Sullivan, to begin on Monday 26 October 1998.  The tenancy was on the terms of standard printed conditions of tenancy, which were incorporated into the tenancy. Condition 4(1) said:

“The tenant can terminate the tenancy by giving the Council four weeks’ notice to quit, to expire on a Monday.”

3.	At the time when the tenancy was granted, five of Mrs O’Sullivan’s children were named as authorised occupants of the dwelling.  At that time Mrs O’Sullivan was married to Mr O’Sullivan.  He says that he moved into the dwelling with her and their children in 1998 but for some reason his name does not feature on the tenancy agreement.  He says that it has been his home ever since.  This is disputed by the Council, who say that Mr O’Sullivan was not living at the property before November 2002.   Mr O’Sullivan says that in October 2002 his wife told him that she was seeing another man.  He was upset and moved into bed and breakfast accommodation.  However, in the following month, November 2002, Mrs O’Sullivan had to go into hospital for an operation and asked him to move back in to look after the children, which he did.  When his wife returned from hospital he refused to move out.  His wife said that she did not want to live under the same roof, and in consequence she moved out and set up home with her new partner. 

4.	According to Mrs Kate Lock, one of the Council’s housing officers, she was contacted in April or May 2003 by a Miss Black, a worker at Southwark Women’s Aid, who was helping Mrs O’Sullivan.  She was told that Mrs O’Sullivan had vacated the property at 8 Cicely Road, due to domestic violence. She was told that Mrs O’Sullivan had approached the Council’s homeless persons’ unit for accommodation.  Miss Black said that she had told Mrs O’Sullivan that she should terminate her tenancy with the Council once the Council had accepted her as homeless.  The Council appeared to have accepted Mrs O’Sullivan’s allegations of domestic violence.

5.	On 19 May 2003, Mrs O’Sullivan sent the Council a handwritten notice to quit, giving notice to terminate the tenancy on 15 June 2003.  The Council accepted the notice on the same day but recorded that there were unauthorised occupants in occupation.  This must be a reference to Mr O’Sullivan.   Condition 3 of the tenancy conditions read as follows : 

“(1) Where the tenancy is granted to one or both of the two parties living together as a couple in a stable relationship, then if either party provides conclusive evidence that the relationship has broken down permanently, the Council shall (within six months) provide suitable accommodation for the party who leaves the dwelling house as a result of the breakdown of the relationship and shall grant the tenancy of the dwelling house to the party who remains in it, if they are not already the tenant.

“(2) Where the relationship breakdown is a result in whole or in part of domestic violence, the Council shall not be obligated under Clause 3(1) to re-house or grant the tenancy of the dwelling house to the perpetrator of the domestic violence.”

6.	Mr O’Sullivan said that towards the end of May 2003 he received a letter from the Council with a Notice to Quit.  This was a second notice that the Council themselves had served on or about the 22 May 2003, terminating the tenancy on 19 June.  Mr O’Sullivan says that he went to the housing office and saw the housing officer, Miss Lock.  He asked for a rent card and said that he would pay the rent, but Miss Lock refused to speak to him. He then went to see his MP, Miss Harriet Harman, and told her about the problem.  There followed an exchange of correspondence with the Council, but the Council refused to withdraw the Notice to Quit.

7.	On 18 December 2003 the Council began proceedings for possession, against both Mr and Mrs O’Sullivan.  Mrs O’Sullivan has taken no part in those proceedings. However Mr O’Sullivan has defended the claim against him and he also counterclaimed for an order that the Council grant him a tenancy of 8 Cicely Road, in accordance with Condition 3(1) of the tenancy conditions. The counterclaim was not served until 4 February 2004.

8.	In October 2004, Judge Cox ordered the trial of the following preliminary issues.  One, the validity of the Notice to Quit of 19 May 2003.  Two, whether in law, Clause 3(1) of a claimant’s tenancy is capable of enforcement of the termination of the tenancy.  Three, whether the second defendant is entitled to an order under section 8(1) of the Human Rights Act  1998, subject to but not including any findings as to whether the second defendant is precluded from enforcing Clause 3(1) by reason of Clause 3(2) for non-occupation.

9.	Shortly before the hearing before Judge Gibson, Mr O’Sullivan conceded that the notice to quit served by his wife on 19 May was effected to terminate the tenancy on 15 June 2004, some six months before he served his counterclaim. That disposed of the first of the preliminary issues.  The third preliminary issue does not appear to have been pressed, although Mr O’Sullivan relied on the law of Human Rights in support of his arguments on construction. That left, in effect, the second preliminary issue for Judge Gibson to decide.  Judge Gibson recorded the following common ground between the parties.  

10.	One, the issue he had to determine was whether Mr O’Sullivan was entitled to invoke Condition 3(1) of the tenancy conditions, on the assumption that he first asserted his right in the counterclaim.  Two, Mr O’Sullivan was in principle entitled to rely on Condition 3(1), even though he was not the tenant, because of the effect of section 56 of the Law of Property Act 1925.  This was admitted on the pleadings.  Three, the obligation to grant “the” tenancy to the party who remained in occupation and was not already the tenant was an obligation to grant “a” tenancy to that person because “the” tenancy had already been granted, and could not be re-granted.  Four, the Council’s obligations under Condition 3(1) were triggered by one of the parties to a formerly stable relationship providing conclusive evidence of a permanent breakdown.  Five, when the obligation is triggered, the Council has six months to fulfil the stated duties to each of the parties, respectively.

11.	The Judge also said that he understood it to be agreed that all that is required of the party providing the necessary evidence is that he or she must make it clear to the Council that a claim to rights under Condition 3(1) is being made.  He also said that he understood it to be agreed that once the period of six months had begun to run and stated duties had arisen, they would not be brought to an end by the termination of the tenancy.

12.	The Judge went on to consider the rival arguments and came to the conclusion that the Council’s arguments were to be preferred.  The consequence of this was that a claim to have rights under Condition 3(1) had to be made before the tenancy expired.  However, the Judge did not make a declaration giving effect to the conclusion he had reached.   Instead he made an Order for Possession and it is from that order that Mr O’Sullivan appeals. But in paragraph 19 of his judgment, the judge recorded his understanding that there might be an issue, not to be decided on this occasion, whether Mr O’Sullivan operated the Condition 3(1) trigger before the end of the tenancy by asking for a rent card. But if that issue remains to be decided, and if decided in Mr O’Sullivan’s favour would have entitled him to a tenancy, then in my judgment the Judge ought not to have made the possession order that he did.  By making a possession order, the Judge effectively pre-empted the resolution of that issue. 

13.	In my judgment therefore, the Judge’s order cannot stand and the appeal must be allowed. The question then arises: should this court decide the question of construction that was raised by the preliminary issue. Given that it is in dispute, one, whether Mr and Mrs O’Sullivan were in a stable relationship at the inception of the tenancy, thereby engaging Condition 3(1) at all; two, whether Condition 3(2) absolves the Council from its obligations as a result of domestic violence; and three, whether Mr O’Sullivan made a sufficient claim by asking for a rent card before the tenancy came to an end, the question of construction may turn out, when the facts are found, to be academic. 

14.	As Lord Scarman observed in Tilling and Whiteman [1980] AC 1, preliminary points of law are too often treacherous shortcuts, their price can be, as here, delay, anxiety and expense.  As so often, the decision to try preliminary issues on assumed facts has lead to an over-complication of the case and puts the court into a position of having to decide questions, without a full picture of the factual background on which the case depends.  In this case, as in many others, the decision to have a trial of preliminary issues has turned out to be a false economy.  I have therefore reached the conclusion that this court should not embark upon a consideration of the questions of construction in advance of the fact-finding exercise.  That said, I would not wish to be taken to endorse the Judge’s reasoning.  It must be said that Condition 3(1) is not a piece of drafting in which the draftsman can be proud.  Indeed Miss Lisa Sinclair, who appeared for the Council, went so far as to describe it as a nonsense.  There are difficult questions of interpretation which will have to be considered, if the need arises, once the facts are found.  It appears to have been common ground before the Judge that the trigger event which brought the Council’s obligations into play was not only the provision to the Council of conclusive evidence of relationship breakdown but also some action taken to claim rights under Condition 3(1). However, as my Lord Chadwick LJ pointed out in the course of argument, that is not what Condition 3(1) says. It says that if either party to the former relationship provides the necessary evidence of breakdown, the Council’s duties are triggered, as regard both the parties.

15.	On the Council’s own case, Mrs O’Sullivan presented herself as homeless, and although she alleged that the reason for her homelessness was domestic violence, the allegation of domestic violence is contested.  But the allegation itself, coupled with Mrs O’Sullivan’s presentation of herself as homeless, and her willingness to serve notice to quit while her husband remained in the dwelling with at least some of their children seems to me to be strong evidence of a permanent breakdown in their relationship.  Miss Sinclair, for the Council, submitted that this was not enough.  She may or may not be right but that is a matter for determination when the facts have been found.  If she is wrong, and if the triggering event is no more than the presentation of evidence which satisfies the Council that the breakdown is permanent, then the obligations created by created by Condition 3(1) came into play before the tenancy came to end.

16.	The judge referred to one of the oddities of the condition, namely its reference to “the tenancy”, which had to be interpreted as “a tenancy”.  I suspect that the use of the definite article was meant to prescribe the terms of the tenancy; that is to say, they were to be the same terms as the old tenancy.

17.	But there are other oddities. First, the obligation on its face as regards the remaining partner is an obligation to grant a tenancy. The grant of the tenancy is a bilateral agreement but what if the remaining partner does not want the tenancy on the terms on which the Council is prepared to let?  It cannot have been contemplated that the remaining partner would be bound to take the tenancy.  One possible reading of the condition is, as the Judge held, that the remaining partner must call for the grant of the tenancy.  But another is that the Council must offer to grant a tenancy to the remaining partner.  Second, on one reading of the condition, the obligation to rehouse the departing partner must be fulfilled within six months, whereas the obligation to grant the tenancy to the remaining partner has no express time limit. This is because of the placing of the parenthesis “(within six months)” after the first “shall” in the condition.  If, on the other hand, the six-month time limit can be read as applying to both limbs of the Council’s obligation, as the Council’s own relationship breakdown policy suggests, then this difficulty may disappear.

18.	The judge based his interpretation on an analysis of the concluding phrase of Condition 3(1), that required the Council to grant a tenancy to the person who remains in the dwelling house if they are not already the tenant. The conditional clause was an exception to the Council’s obligation to grant a tenancy to the partner who remained in the dwelling house.  If he or she was already the tenant, then the tenant need not do anything as regards him or her.  The sense of that is obvious.  What would be the point of granting a new tenancy if the remaining partner was already the tenant?  If, on the other hand, the remaining partner is not the tenant, then the conditional clause would have no application, so the Council would not be relieved of this obligation to grant a tenancy. 

19.	 Speaking for myself, I have considerable reservations whether this phrase is enough to lead to the conclusion that a claim to invoke Condition 3(1) must be made before the tenancy comes to an end. It seems to me also that the Council’s interpretation is open to the criticism that it confuses the right with the remedy. The Council appears to accept that a right, correlative to the Council’s obligation, arises when one party to the former relationship convinces the Council that the relationship has permanently broken down.  So far as the partner remaining in the dwelling is concerned, the right is the right to be granted a tenancy of the dwelling. That right is enforceable by an action for specific performance.  Delay in seeking to exercise such a right may in some circumstances disentitle the claimant to a remedy but it does not undo the existence of the right.

20.	The appeal bundle includes the Council’s policy on relationship breakdown.  The Council has a parallel policy on domestic violence, which we have not seen.  An understanding of that policy might well inform the decision of the court on the question of construction, if it arises. Although I have expressed doubts about the Judge’s interpretation of Condition 3(1), I must not be thought to have reached a concluded view.  The questions raised in the course of the argument in this court will be matters for the County Court Judge to decide in the light of the facts when eventually found.  I would allow this appeal.

21.	LORD JUSTICE CHADWICK:  I agree that it would be inappropriate for this court to express a concluded opinion on the preliminary issue.  The judge answered that question without having found or assumed the facts on which his answer was based.  

22.	The issue as framed was “whether in law clause 3(1) of the claimant’s tenancy is capable of enforcement after termination of the tenancy”.  The phrase “capable of enforcement” is not apt to identify the real questions needing decision.  Those are (i) whether there is a triggering event, which depends on the actions of the tenant, which must occur before the landlord’s obligations arise under clause 3(1); if so, (ii) what that event is; and (iii) whether, whatever the event is, it has to occur before the termination of the tenancy.  

23.	I would observe, further, that if the London Borough of Southwark wants the person who remains in the premises to make an application, and to do so within any particular period of time, it would be sensible for the clause to so provide.
24.	
LORD JUSTICE LONGMORE:  I agree, for the reasons which have been given by Lewison J.  The effective issue to be determined as a preliminary issue before the judge was whether in law clause 3(1) of the tenancy agreement was capable of being operated after the termination of the tenancy.  That issue was formulated on the basis that it be assumed that the second defendant was not precluded from enforcing clause 3(1) by reason of clause 3(2) -- that is to say, it is supposed to be assumed that he was not the perpetrator of domestic violence on his wife, the tenant -- and that it was to be assumed that he was not precluded from enforcing the clause by reason of non-occupation, by which it is to be understood that he was to be assumed as having been living in the dwelling with his wife in a stable relationship before break-up.  Those assumptions are made explicit.  

25.	But there is another matter which has to be assumed before the issue as formulated in the order of 22 October 2004 can arise.  That matter is that the event which triggers the Council’s obligation under clause 3(1), namely that either party has provided conclusive evidence that the relationship has broken down permanently, did not in fact occur before the termination of the tenancy.  As the judge himself recognised, that event might have occurred when the second defendant applied for a rent book.  As appears from the documentation and material before us, that event might well have occurred at the time when Mrs O’Sullivan made her application to be re-housed on the grounds that she was homeless, an application which the Council appears to have accepted.  For both those reasons, the issue which the judge decided was decided upon facts which were not ordered to be assumed and which were never decided by him.  In those circumstances his decision cannot stand.  The order for preliminary issues in this case is a further example of the danger to which Lewison J has referred; namely, the danger of thinking that a trial of preliminary issues may avoid both delay and expense.  So it may, if the issues are carefully formulated and properly targeted.  That has not been this case. 
 
26.	For those reasons, the appeal must be allowed and the matter remitted to the County Court.  I would allow the appeal, to extent that we set aside paragraphs 1 and 7 of the order of 5 May 2005 and discharge paragraph 5 of the order of 22 October 2004, which ordered the trial of the preliminary issues.  I would direct that the claim proceed in the County Court on a trial of all issues, including those ordered to be tried as preliminary issues by paragraph 5 of the order of 22 October 2004, insofar as those issues do in fact arise when the facts have been ascertained.

Order:  Application allowed.