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HOUSE OF LORDS
Lord Browne-Wilkinson
Lord Jauncey of Tullichettle
Lord Mustill
Lord Hoffmann
Lord Clyde
OPINIONS OF THE LORDS OF APPEAL FOR JUDGEMENT IN THE CAUSE
THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HARROW
(APPELLANTS)
v.
JOHNSTONE
(RESPONDENT)
ON 13 MARCH 1997
LORD BROWNE-WILKINSON
My Lords,
I have had the opportunity of reading in draft the speech of my noble and learned friend Lord Mustill and, for the reasons he gives, I would allow this appeal.
I have also had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. I prefer to express no view on the two points to which he refers, which do not arise for decision in the present case.
LORD JAUNCEY OF TULLICHETTLE
My Lords,
I have had the opportunity of reading in draft the speech of my noble and learned friend Lord Mustill and, for the reasons he gives, I would allow this appeal.
LORD MUSTILL
My Lords,
On 14 June 1989 the appellant Maurice Johnstone and his wife Laura entered into a joint tenancy agreement with the respondent Council, the London Borough of Harrow, relating to 5 Waghorn Road, Kenton, Middlesex. The agreement provided, by Clause 19, that the tenants might terminate the tenancy by giving four weeks', written notice to the Council, expiring on a Monday. This was a secure tenancy under the Housing Act 1985.
The couple moved into the house and lived there, latterly with their two young children, until February 1994. The marriage ran into difficulties, and it appears that during 1992 the wife commenced divorce proceedings. These were not immediately pursued, and did not reach the stage of a decree until 1995. Meanwhile, matters had come to a head at the beginning of February 1994. Precisely what happened is not in evidence, but it is clear that (a) the wife left the house, taking the children with her, and (b) the husband made applications to Willesden County Court, based on allegations that his wife had assaulted him and had attempted to eject him from the house. These applications were, first, for an injunction under the Domestic Violence and Matrimonial Proceedings Act 1976; and, secondly, for a prohibited steps order under section 10 of the Children Act 1989. On 3 February 1994 the matter came before Judge Krikler who made two orders, evidently ex parte. One was a "prohibited steps order," requiring that the elder boy should not be removed from the jurisdiction. The second must be quoted in full:
"Laura Johnstone is forbidden (whether by himself [sic] or by instructing or encouraging any other person)
(1) to use or threaten violence against the applicant or in any way to harass or otherwise interfere with her [sic]
(2) to exclude or attempt to exclude the applicant from 5 Waghorn Road, Kenton, Harrow, Middlesex.
This order shall remain in force until further order of the court."
No return date was given for a further hearing. It is not known whether the order was served on the wife, or when she first got to hear of it. No application has been made to discharge the order.
Since the husband remained in possession of the house and the wife was unwilling to return she needed somewhere else to live and applied to the Council, which was willing to re-house her. It was, however, contrary to Council policy to provide accommodation to someone who already had a Council tenancy. Accordingly, the Council set about regaining possession of 5 Waghorn Road, and for this purpose they suggested to the wife that she should serve on them a notice, in the event dated 22 March 1994, that she would:
"Quit and deliver up possession of 5 Waghorn Road, Kenton jointly held by me as your tenant on the 25 of April 1994 or at the end of the period of my tenancy which will expire next after the expiry of four weeks after the service of this notice on you."
By a letter dated 30 March 1994, which did not arrive until 15 April, the Council's Housing Services forwarded to the husband a copy of the notice and told him that his tenancy would come to an end on 25 April. As soon as the husband received the letter he went to the Housing Services' office and told the relevant official about the injunction.
The husband remained in the house, and on 17 June 1994 the Council commenced proceedings for possession in Willesden County Court. Not having received legal aid until the day before the hearing the husband did not file a defence, but he did so when the matter came before Judge Hunter on 9 August 1994. Its substance was that by giving the notice the wife was acting in breach of the injunction and was in contempt of court. By bringing the proceedings when it was aware of the injunction the Council had aided and abetted the wife in that breach and was itself in contempt of court, and the proceedings were an abuse of the process of the court. The learned judge accepted this submission and dismissed the claim. His reasoning was as follows:
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 A.C. 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."
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