Somershield v Robin

 

Somershield v Robin

ADMINISTRATION OF JUSTICE; Courts

COURT OF APPEAL

LORD GREENE MR, DU PARCQ AND TUCKER LJJ

16, 17 JANUARY 1946

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Preamble

County Courts – Jurisdiction – Action for recovery of possession – Limit of jurisdiction – Furnished house – Whether apportionment provisions of Rent

Restrictions Acts apply – County Courts Act, 1934 (c 53), s 48(1) – Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (c 17), s 12(2), proviso (i)

– Rent and Mortgage Interest Restrictions Act, 1923 (c 32), s 10.

Statutes – Construction – With reference to other statutes alio intuitu.

An action was brought by the respondent in the county court for possession of a furnished house let at a rent of £272 a year. The judge, having deducted a

sum of £150 in respect of the use of the furniture and a further sum of £45 in respect of rates which were payable by the landlord, held that the action being

one in which neither the value of the land in question nor the rent payable in respect thereof exceeded £100 a year, was within the jurisdiction of the court

under the County Courts Act, 1934, s 48(1) and made an order for possession. It was contended on behalf of the appellant tenant that the contractual sum of

£272 was rent issuing out of the land demised and, therefore, payable in respect of the land and that there was nothing in the County Courts Act which justified

the process adopted by the judge. On behalf of the respondent it was contended that in construing the County Courts Act, 1934, s 48(1), and determining what

rent was payable in respect of the land in question, the court should, in so far as the use of the furniture was concerned, apply the apportionment provisions of

the Rent Restrictions Act, 1920, s 12(2), proviso (i), as amended by the Rent Restrictions Act, 1923, s 10, and that a similar dissection of the contractual figure

should be made in respect of the rates. Alternatively it was contended that the contractual figure was rent payable in respect of the premises and the furniture

and not in respect of the land, and that, therefore, the only matter to be taken into account was the value of the land which was below £100:—

Held – The County Courts Act, 1934, s 48(1) should be interpreted in its obvious and prima facie meaning and the contractual sum of £272 being rent issuing

out of the land, for non-payment of which there was a right to distrain, was “payable in respect of the land in question.” The county court judge had, therefore,

no jurisdiction to try the action and make an order for possession.

Per cur: An Act of Parliament should not be construed by having regard to the special, obscure and artificial language of an Act directed to a totally

different subject-matter and actuated and governed by a completely different policy.

Notes

This case decides an interesting point in connection with the jurisdiction of the county court. It is argued that in proceedings for possession of a furnished

house the judge, in order to ascertain the “rent payable in respect thereof” is entitled to deduct from the contractual payment a sum attributable to the use of

the furniture, on analogy with the apportionment made in cases under the Rent Restrictions Acts. It is held, however, that “rent” means a sum issuing out of

land for which distraint may be levied. The apportionment which takes place under the Rent Restrictions Acts is necessary to make the Acts work, but there is

no justification 􀂭 218􀀉 for applying the principle to an entirely different statute where it is unnecessary. A contrary conclusion would involve the proposition

that, wherever a tenant obtained additional or collateral benefit, such as the use of furniture, or the giving of a restrictive covenant by the landlord, the

contractual sum could not be regarded as “payable in respect of land.”

As to Limit of Jurisdiction of County Courts in Actions for Recovery of Possession, see Halsbury, Hailsham Edn, Vol 8, p 174, para 271; and for Cases,

see Digest, Vol 13, pp 469, 470, Nos 190–192.

As to Construction of Statutes by Reference to Statutes Alio Intuitu, see Halsbury, Hailsham Edn, Vol 31, p 489, para 618; and for Cases, see Digest, Vol

42, p 662, Nos 708–713.

Case referred to in judgments

Mackworth v Hellard [1921] 2 KB 755, 31 Digest 563, 7111, 90 LJKB 693, 125 LT 451.

Appeal

Appeal by the defendant from an order of His Honour Judge Burgis, made at Altrincham County Court, on 17 October 1945. The facts are fully set out in the

judgment of Lord Greene MR.

G G Honeyman for the appellant.

Redmond Barry KC and J S R Abdela for the respondent.

17 January 1946. The following judgments were delivered.

LORD GREENE MR. This appeal raises a simple point which is not without importance; but I have come to a clear conclusion as to the proper answer to

the question. The action was an action to recover possession of a house which was held on a monthly tenancy. The tenancy having been determined by notice

to quit the tenant failed to deliver possession and this action was commenced in the Altrincham County Court. The only question which arises is whether the

county court judge had jurisdiction to entertain the action. The county court judge held that he had jurisdiction and made an order in favour of the plaintiff.

Against that order the defendant appeals.

The house was what is commonly called a furnished house, and the rent payable was £272 a year. By the County Courts Act, 1934, s 48(1), the

jurisdiction of the county court is defined as follows:

‘A county court shall have jurisdiction to hear and determine any action for the recovery of land where neither the value of the land in question nor

the rent payable in respect thereof exceeds the sum of one hundred pounds by the year.’

The county court judge was apparently satisfied that the value of the land did not exceed the sum of £100 a year, but that was not sufficient to establish his

jurisdiction because it had to be shown that the rent payable in respect of the land did not exceed the sum of £100 a year. The judge was confronted by the

fact that the rent payable was £272 a year and, therefore, in order to obtain jurisdiction he had in some manner to get that figure down to a figure not

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exceeding £100 a year. He did that in this way. He accepted evidence in relation to the furniture which satisfied him that the furniture was worth a sum of

£150 a year; he, therefore, deducted £150. He also inquired into the question of rates and water rate, which under the lease were payable by the landlord and

he ascertained that the rates and the water rate amounted to £31 for rates and £4 odd for water rate; he, therefore, deducted those figures. He also appears to

have made a deduction of about £10 in respect of chief rent; but that is rather obscure, and it does not matter for the purposes of this appeal, whether he was or

was not making that deduction, because the total of the amount he deducted in respect of furniture and the amount deducted in respect of rates and water rate

gave him a figure below £100.

It is argued by the appellant that there is nothing in the County Courts Act which justifies any such process. The words of the subsection which are

crucial in this case are these: “the rent payable in respect thereof”; that is to say, in respect of the land in question. It is pointed out that the sum of £272

which is referred to in the lease is unquestionably rent. It is pointed out that it issues out of the land demised. There can be no question about that; it is a point

which has been settled for very many years. It is truly rent because it can be distrained for, and rent in the definition of Coke Upon Littleton—I read the

citation from Foa on Landlord and Tenant, 6th Edn, at p 123—is:

‘A certain profit reserved or arising out of lands or tenements, whereunto the lessor may have recourse to distrain.’

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The £272 in this case unquestionably satisfied that definition. It is argued by counsel for the respondent that even accepting that definition it cannot be said

that the rent is payable in respect of the land in question and he says that the only way in which you can discover how much rent is payable in respect of the

land in question is by dissecting the figure of £272 and making a notional apportionment of part of it to rent in respect of the land and part of it to payment for

use of the furniture.

It cannot be doubted that in certain Acts of Parliament, in order to make them work and to achieve their obvious purpose, an apportionment of what is one

integral sum is often necessary. It is extremely familiar in the law relating to income tax and an example of it, germane to the present type of question is, of

course, to be found in the Rent Restrictions Acts. Sect 12(2), proviso (i), of the Act of 1920, enacts that the Act is not to apply to:

‘… a dwelling-house bona fide let at a rent which includes payments in respect of board, attendance, or use of furniture.’

What that section, having regard to the manifest purposes of the Act, means is that in order to make it work you must examine an integral rent and attribute

part of it to the furniture. You cannot make sense of it unless that purely artificial process is gone through. It is necessary in order to make the Act work, and

that that is the intention of Parliament is made manifest when the amending sect 10 of the Act of 1923, is looked at, because that uses this expression:

‘… a dwelling-house shall not be deemed to be bona fide let at a rent which includes payments in respect of attendance or the use of furniture

unless the amount of rent which is fairly attributable to the attendance or the use of the furniture, regard being had to the value of the same to the tenant,

forms a substantial portion of the whole rent.’

Even there, it seems to me, an inaccuracy has not been avoided because it would not be true to say that an amount of rent is attributable to the use of the

furniture. What might be true to say would be that it would be right to attribute part of the figure of rent to the fact that the use of the furniture is included in

the contract. It is perfectly true that in the normal case in arriving at the figure of rent of a furnished house the figure is loaded by reason of the fact that under

the contract the tenant is going to have something more than the mere occupation of the house, namely, he is going to have the use of the furniture. That does

not mean that the figure arrived at is any the less rent, nor does it become true to say that part of the rent must be treated as rent for furniture. It is entirely

artificial. In the Rent Restrictions Act that artificiality must be made use of in order to make the provision work at all and it is perfectly clear that that was the

intention of Parliament. But in the County Courts Act we are not assisted by considerations of that kind. There is nothing in the Act to suggest that any

artificial meaning is to be put on the words or that some artificial process is to be gone through for the purpose of arriving at a result which has no reality at all.

When this process of dissection has taken place it is quite untrue to say that that portion of the contractual sum which is attributed by the court to the rent is

the rent payable in respect of the land. It is not. It is an entirely artificial figure which cannot be said to be rent payable in respect of the land. The rent

payable in respect of the land is the contractual figure which issues out of the land and for which distraint may be levied. It seems to me quite untrue to say

that because historically the figure of rent was arrived at by taking into consideration the fact that use of the premises was to include furniture, because

historically that is the way in which the figure was built up by negotiation between the parties, that means that the figure when arrived at and inserted in the

rent is any the less rent in respect of the land. If the legislature had meant that in such cases apportionment was to take place it could quite easily have said so;

it could quite easily have used the appropriate language. In the Rent Restrictions Act, 1923, s 10, it used language which, though, as I have said, not strictly

accurate, at any rate made it quite clear that such an apportionment was to take place and it could quite easily have used language of that kind in this section if

it had so intended.

It is to be observed that this suggestion that the dissection is to take place would apply in every case, it seems to me, if it were well founded, where under

a lease the tenant obtains some additional advantage. I put a case to counsel 􀂭 220􀀉 for the respondent, in argument, which is not uncommon, a case where a

landlord lets a shop to a tenant and undertakes not to carry on a competing business in some neighbouring shop of his own. The rent payable in such a case is

obviously, as a matter of business and figures, arrived at by taking into consideration the fact that the landlord is binding himself by this covenant and the

tenant is getting that additional advantage. It seems to me that in that case it would be perfectly impossible to say that the figure of rent in the lease must, in

order to determine the question of county court jurisdiction, be dissected and some part of it attributed to the value of the covenant and the residue only to the

value of the right of occupation under the lease. After all, cases where the tenant gets something over and above the mere tenancy of the land are legion and of

infinite variety and, in every case, according to this argument, you would have to split up the amount, and take an artificial figure as being the rent in respect

of the land and treat the balance as a payment in respect of the collateral or additional advantage. I can find nothing in the subsection to justify and such

process.

Counsel for the respondent placed reliance on the provisions of the Rent Restrictions Act, which I have quoted, and he said that this can be and should be

looked at for the purpose of assisting the court in construing the County Courts Act, s 48(1). I cannot accept that proposition. I cannot imagine anything more

dangerous than to attempt to construe an Act of Parliament directed to a totally different subject-matter by having regard to the very special, very obscure an

artificial language of such an Act as the Rent Act, which is directed to a totally different subject-matter and actuated and governed by a completely different

policy. I can find no assistance whatever in referring to the provisions of the Rent Act. Counsel submits that, if, for the purposes of the Rent Act, a rent

includes payment in respect of furniture, it is possible to say, for the purposes of the County Courts Act, what rent is payable in respect of the house. That is, I

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think, quite illegitimate and I must decline to accept that argument.

So far, therefore, as furniture is concerned, I think that the section must be interpreted in accordance with its obvious and prima facie meaning and that

the rent payable is rent payable in respect of the land in question and that it is impossible to dissect the rent and say that part is payable in respect of the land

and part in respect of the furniture.

That is sufficient to dispose of this case because unless the £150 is deducted the necessary figure of £100 is not reached. But the county court judge

deducted the figures for rates and water rate and it would be right for me to say something about that. It seems to me that it was just as illegitimate to dissect

the contractual figure by deducting those sums as it was in the case of furniture; but the answer is perhaps even simpler because I can see no justification

whatever for suggesting that when, under the tenancy agreement or the lease, the landlord takes the burden of the rates the figure of rent which the tenant

covenants to pay is anything at all except rent in respect of the premises. What else is it? You cannot dissect that figure and say that part of it is paid in

respect of the premises and part of it is in the nature of an indemnity to the landlord for the obligation which he is taking off the tenant’s shoulders.

Historically no doubt that is how the figure of rent is built up, for rates are a thing which any intending landlord or tenant and any house agent will take into

consideration when discussing and arriving at an agreed figure for the rent. But that is all history. When the rent is agreed it is rent and nothing else, and the

fact that the landlord has insisted on that particular figure because he is taking on the duty of paying the rates seems to me to have nothing whatever to do with

the case.

I am averse to referring to authorities on one Act of Parliament for the purpose of construing another and quite different Act, but, as it was referred to, I

will say that the reasoning in the case of Mackworth v Hellard is entirely consistent with the view that I have just expressed. I have reached that view not

because I rely on that authority or regard it as in any way governing the decision in this case: I merely mention it by way of showing that I have not forgotten

it and to give myself such satisfaction as may be gained from the fact that it seems to me to be quite consistent with the view that I take myself; but I take that

view quite independently of that case.

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Counsel for the respondent tries to meet these arguments in an ingenious way. He says, on the assumption that he is right on the question of the furniture,

which I have held he is not: “Once you deduct for the furniture then there is no figure which you can describe as rent payable in respect of the land.” That

seems to me to be getting the best of both worlds. He takes what is the rent and says: “Part of this is payable in respect of the furniture and I have, therefore,

deducted that.” Then when it is said against him: “That which is left is rent payable in respect of the land,” he says: “Nothing of the kind; there is no figure

of rent payable in respect of the land.” It seems to me that he is bound to say that what is left is payable in respect of the land. I need not go into that further.

There is one concluding argument I should mention. It was to this effect: The sum of £272 was not rent payable in respect of the land and if, contrary to

the first submission, no apportionment is permissible, then it still remains the fact that it is impossible to say of these premises that there is any rent payable in

respect of them because the sum of £272, if not apportionable, is a rent payable in respect of two things, namely, the premises and the furniture; therefore,

counsel says, the only matter which has to be taken into account is the value of the land and that is below £100 per annum. I cannot take that view. I have

already said that in my opinion the £272 is payable in respect of the land and it cannot be said that under this contract no rent is payable in respect of the land.

If counsel’s argument was right, I am bound to confess that I an see no reason whatsoever for excluding from this application all sorts of cases, such as the one

I have mentioned, where the landlord gives the restrictive covenant and numbers of other quite common cases of tenancies and leases. The only matter which

the county court judge would have to consider would be the value and he would never have to consider rent because if counsel’s argument were accepted it

would mean that wherever the tenant was getting an additional or collateral benefit it would be impossible to say that the contractual figure was payable in

respect of the land because the tenant was getting something in addition.

It seems to me that all these highly artificial ideas are not to be extracted from the simple language of the subsection which has, in my opinion, the

meaning I have attributed to it. In the result the appeal must be allowed and the judgment of the county court judge reversed with costs here and below.

DU PARCQ LJ. Lord Greene MR has dealt fully with the point raised in this case in a judgment with which I agree. I only desire to add a few words. I

agree, as I have said, with the whole of the judgment and particularly with my Lord’s observations as to the point raised which depended on the construction

of the Rent Restrictions Act. The Rent Restrictions Acts are difficult enough to construe and it would be indeed a misfortune if one had to construe earlier

Acts in the light of them and put the work of draftsmen who are no longer with us to the severe test of seeing how far they can be reconciled and made to fit in

the framework in which the Rent Restrictions Act forms a principal part. It is quite unnecessary and it would be quite wrong to attempt to do anything of the

kind. The County Courts Act with which we are dealing was enacted as recently as 1934, but it was an Act to consolidate certain enactments relating to

county courts. The First County Courts Act was passed in 1849, and as to this particular section we have not traced it to its source, perhaps, but at any rate we

know that it was in existence in the enactment of 1867. It may have been earlier. The result is that we must assume that when this section and subsection

were enacted Parliament did not concern itself at all about the Rent Restrictions Acts because it was merely repeating legislation framed a very long time

before the Rent Restrictions Acts were thought of. Certainly the draftsman of 1867 may be supposed to have had in mind the old and, one may say,

elementary learning which is to be found in the passage in Foa on Landlord and Tenant, 6th Edn, p 123, which was read by Lord Greene MR. When the

draftsman talked of rent he meant what lawyers mean by rent and when that is understood the section becomes perfectly clear. I doubt very much if the judge

would have attempted to embark on this apportionment if he had not perhaps, rather become accustomed to the apportionment of rent as between house and

furniture owing to the duty which he has to perform 􀂭 222􀀉 under the Rent Restrictions Acts. I doubt if before those Acts it would have occurred to a judge

that he was bound or empowered to embark on such apportionment. The Act, I think, construed according to the ordinary language of lawyers, is plain

enough, and, if so, we know what the rent is. The parties call it rent. The plaintiff’s witness says the rent included the use of the furniture also rates and water

rate. It was an oral agreement and that, I think, is the end of the matter.

I agree, further, that it is impossible to say that because furniture has been taken into account in a total sum agreed which includes the use of furniture,

therefore, one cannot regard the total sum as rent; if that argument prevailed, it would mean that the landlord letting a house with furniture was receiving no

rent and, therefore, I presume, would lose the right to distrain for rent.

I agree that the appeal must be allowed.

TUCKER LJ. I agree and I think the case is really quite clear. Counsel for the respondent had to rely on the words of sect 48, “payable in respect thereof.”

If seems to me that once it is conceded that the money payment is properly described as rent, that is to say that it is a payment which issues out of the land and

for the non-payment of which the right to distrain exists, that is really an end of the matter. Anything which answers that description is in my opinion properly

described as “payable in respect of the land” and that is the very essence of rent.

In this case it is to be observed that the County Court Rules, Ord 7, r 3, provides that in an action for the recovery of land the particulars shall contain a

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full description of the land sought to be recovered and the annual value thereof and the rent, if any, and shall state the ground on which possession is claimed.

In this case that rule was not complied with, as it should have been, by the plaintiff, whose duty it was, under the rule, it is to be observed, to state the rent. I

am not attempting to construe sect 48 of the Act by reference to the language of the rule made under the Act, but it is to be observed that the draftsman of the

rule did not think it necessary to say anything about rent payable in respect thereof, which fortifies my view that the fact that it was rent shows that there was

no need to use such language as “payable in respect thereof.”

What I have said applies to an Act which is not dealing with the question of apportioning the rent or apportioning the rent as between furniture and other

matters. Where you have an Act like the Rent Restrictions Act, which provides for apportioning the rent as between the different benefits received by the

tenant, other considerations arise altogether and it seems to me quite impossible to read into sect 48—which I think counsel for the respondent has to do—after

the words “rent payable in respect thereof” the words “or such proportion thereof as the county court judge shall determine to be fairly attributable to the

enjoyment of the land.”

I would only add that counsel for the respondent did not seek to rely upon the provisions of sect 49(3), which the county court judge thought in some

degree supported the view at which he had arrived.

Appeal allowed with costs.

Solicitors: Maude & Tunnicliffe agents for Jackson Barrett & Gass, Stockport (for the appellant); Barlow, Lyde & Gilbert, for L G Ruddin & Co, Manchester

(for the respondent).

F Guttman Esq Barrister.

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[1946] 1 All ER 224