RESIDENTIAL APARTMENTS LIMITED
(APPELLANT)
v.
BILLSON AND OTHERS
(RESPONDENTS)
Lord Keith of Kinkel
Lord Templeman
Lord Oliver of Aylmerton
Lord Goff of Chieveley
Lord Jauncey of Tullichettle
LORD KEITH OF KINKEL
My Lords,
I have had the opportunity of considering in draft the
speech to be delivered by my noble and leaned friend Lord
Templeman. I agree with it, and for the reasons he gives would
allow this appeal. I agree also with his observations regarding
costs and with the orders which he proposes in respect to them.
LORD TEMPLEMAN
My Lords,
By a lease dated 15 July 1964 freeholders demised the
premises, 17 Gledhow Gardens, South Kensington, for a term due
to expire by effluxion of time on 25 June 1997. On 3 May 1989
the lease was assigned to the appellant, Residential Apartments
Ltd. The reversion is vested in the respondent trustees.
The provisions of the lease included a covenant by the
tenants:
“(f) . . . not to make any alteration in or addition to the
demised premises or any part thereof without the consent in
writing of the Lessors first had and obtained.”
The lease also contained the following proviso for re-entry:
“(i) If and whenever any rent hereby reserved shall be in
arrear for twenty-one days after becoming due (whether
legally demanded or not) or if and whenever any covenant
by the Lessee hereinbefore contained (other than the
covenant to pay rent) shall not be performed or observed
then and in any such case the Lessors may by re-entry or
(at their option) by notice in writing in that behalf given to
the Lessees determine this demise and thereupon this demise
shall absolutely determine but without prejudice to any right
of action or remedy of the Lessors in respect of any breach
of covenant by the Lessees.”
In breach of covenant the appellant embarked on alterations
to the demised premises without the consent of the trustees.
Section 146(1) of the Law of Property Act 1925 provides that:
“(1) A right of re-entry or forfeiture under any proviso or
stipulation in a lease for a breach of any covenant or
condition in the lease shall not be enforceable, by action or
otherwise, unless and until the lessor serves on the lessee a
notice:
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specifying the particular breach complained of; and
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if the breach is capable of remedy, requiring the
lessee to remedy the breach;
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(c) in any case, requiring the lessee to make
compensation in money for the breach;
and the lessee fails, within a reasonable time thereafter, to
remedy the breach, if it is capable of remedy, and to make
reasonable compensation in money, to the satisfaction of the
lessor, for the breach.”
The trustees served on the appellant a notice dated 4 July
1989 complying with section 146(1) but the appellant did not
remedy its breach of covenant within a reasonable time.
Section 146(2) of the Law of Property Act 1925 provides
that:
“(2) Where a lessor is proceeding, by action or otherwise, to
enforce such a right of re-entry or forfeiture, the lessee
may, in the lessor’s action, if any, or in any action brought
by himself, apply to the court for relief; and the court may
grant or refuse relief, as the court, having regard to the
proceedings and conduct of the parties under the foregoing
provisions of this section, and to all the other
circumstances, thinks fit; and in case of relief may grant it
on such terms, if any, as to costs, expenses, damages,
compensation, penalty, or otherwise, including the granting
of an injunction to restrain any like breach in the future, as
the court, in the circumstances of each case, thinks fit.”
On 18 July 1989 at 6 a.m. agents for the trustees peaceably
re-entered the demised premises which were vacant and changed
the locks. By 10 a.m. on the same day workmen engaged by the
appellant had retaken possession of the property, as the trustees
say, unlawfully.
By the writ in this action dated 19 July 1989 the trustees
claim possession, damages for breach of covenant and damages for
trespass. By their defence and counterclaim the appellant
counterclaims for relief against forfeiture. By their reply the
trustees claim that the court has no jurisdiction to grant the
appellant relief from forfeiture. The trial judge, Mummery J., and
the Court of Appeal (Sir Nicolas Browne-Wilkinson V.-C., and
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Parker and Nicholls L.JJ.) considered that they were constrained
by authority to hold that the court had no jurisdiction to grant the
appellant relief against forfeiture pursuant to section 146(2)
because the appellant had not applied to the court for relief prior
to the re-entry into possession by the trustees on 18 July 1989.
The appellant now appeals.
By the common law, when a tenant commits a breach of
covenant and the lease contains a proviso for forfeiture, the
landlord at his option may either waive the breach or determine
the lease. In order to exercise his option to determine the lease
the landlord must either re-enter the premises in conformity with
the proviso or must issue and serve a writ claiming possession.
The bringing of an action to recover possession is equivalent to an
entry for the forfeiture. Thus in Jones v. Carter (1846) 15 M. &
W. 718, Parke B. said at p. 726:
“… the bringing of an ejectment for a forfeiture, and
serving it on the lessee in possession, must be considered as
the exercise of the lessor’s option to determine the lease;
and the option must be exercised once for all … for after
such an act, by which the lessor treats the lessee as a
trespasser, the lessee would know that he was no longer to
consider himself as holding under the lease, and bound to
perform the covenants contained in it … .”
This observation was cited and applied by Lord Denning M.R. in
Canas Property Co. Ltd. v. K. L. Television Services Ltd. [1970] 2
Q.B. 433 at 440.
Before the intervention of Parliament, if a landlord forfeited
by entering into possession or by issuing and serving a writ for
possession, equity could relieve the tenant against forfeiture but
only in cases under the general principles of equity whereby a
party may be relieved from the consequences of fraud, accident or
mistake or in cases where the breach of covenant entitling the
landlord to forfeit was a breach of the covenant for payment of
rent.
Mr. Reid, who appeared for the trustees, conceded that
where equity claimed power to relieve against forfeiture, the
tenant could apply for relief irrespective of the method by which
the landlord had exercised his option to determine the lease.
Relief could be granted whether the landlord had forfeited by
entering into possession or had forfeited by issuing and serving a
writ claiming possession.
In 1881 Parliament interfered to supplement equity and to
enable any tenant to be relieved from forfeiture. The need for
such intervention was and is manifest because otherwise a tenant
who had paid a large premium for a 999 year lease at a low rent
could lose his asset by a breach of covenant which was remediable
or which caused the landlord no damage. The forfeiture of any
lease, however short, may unjustly enrich the landlord at the
expense of the tenant. In creating a power to relieve against
forfeiture for breach of covenant Parliament protected the landlord
by conferring on the court a wide discretion to grant relief on
terms or to refuse relief altogether. In practice this discretion is
exercised with the object of ensuring that the landlord is not
substantially prejudiced or damaged by the revival of the lease.
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Section 14(1) and 14(2) of the Conveyancing and Law of
Property Act 1881 were provisions which conferred on the court
power to relieve against forfeiture and those provisions were
reproduced in section 146(1) and 146(2) of the Law of Property
Act 1925 in identical terms. In referring to a section 146 notice I
shall therefore mean and include a notice served under section
14(1) of the Act of 1881 and in referring to section 146(1) and
146(2) I shall mean and include section 14(1) and 14(2) of the Act
of 1881 where appropriate.
Section 146(1) prevents the landlord from enforcing a right
of re-entry or forfeiture by action or otherwise so that the
landlord cannot determine the lease by issuing and serving a writ
or by re-entering the premises until the tenant has failed within a
reasonable time to remedy the breach and make reasonable
compensation. Section 146(2) enables the tenant to apply to the
court for relief where the landlord “is proceeding, by action or
otherwise” to enforce his right of re-entry or forfeiture. If the
landlord “is proceeding” to determine the lease by issuing and
serving a writ, the tenant may apply for relief after the writ has
been served. If the landlord “is proceeding” to determine the
lease by re-entering into possession, the tenant may apply for
relief after the landlord has re-entered.
Mr. Reid submitted and referred to authority for the
proposition that on the true construction of section 146(2) a tenant
cannot apply for relief against forfeiture after the landlord has re-
entered without obtaining a court order. Thereafter the landlord
is no longer “proceeding” to enforce his rights; he has succeeded in
enforcing them. The proposition is in my opinion historically
unsound because the effect of issuing and serving a writ is
precisely the same as the effect of re-entry; in each case the
lease is determined. The landlord is entitled to remain in
possession if he has re-entered and he is entitled to possession if
he has issued and served a writ because the lease no longer exists.
In each case the tenant seeks relief because the lease has been
forfeited. The proposition is also inconsistent with the language of
section 146(2). The tenant may apply for relief where the landlord
is “proceeding, by action or otherwise” to enforce his rights. The
tenant may apply for relief where the landlord is “proceeding” by
action and also where the landlord is proceeding “otherwise” than
by action. This can only mean that the tenant may apply for
relief where the landlord is proceeding to forfeit by re-entry after
the expiry of a section 146 notice. If re-entry bars relief, the
right of the tenant to apply for relief where the landlord is
proceeding otherwise than by action is substantially inoperative and
the words “or otherwise” in section 146(2) have no application. In
my opinion those words must have been included because
Parliament intended that a tenant should be able to obtain relief
against a landlord whether the landlord has asserted his rights by a
writ or by re-entering. It is said that a tenant served with a
section 146 notice could during and after the expiration of the
notice apply for relief under section 146(2) but if he fails to do so
he is at the mercy of the landlord who decides to re-enter and
whose rights are therefore, it is said, quite unaffected by the
provisions of section 146(2) designed to relieve tenants from the
consequences of breach of covenant. In my opinion the ambiguous
words “is proceeding” can mean “proceeds” and should not be
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construed so as to produce the result that a tenant served with a
section 146 notice can only ensure that he will be able to apply
for relief if he does so before he knows whether or not the
landlord intends to proceed at all or whether, if the landlord
decides to proceed, he will issue and serve a writ or will attempt
to re-enter.
When a tenant receives a section 146 notice he will not
know whether the landlord can be persuaded that there is no
breach or persuaded to accept in due course that any breach has
been remedied and that he has been offered adequate and
satisfactory compensation or whether the landlord will seek to
determine the lease by issuing and serving a writ or will seek to
determine the lease by re-entering the premises. The tenant will
not wish to institute proceedings seeking relief from forfeiture if
those proceedings will be aggressive and hostile and may be
premature and unnecessary. Parliament cannot have intended that
if the landlord employs the civilised method of determining the
lease by issuing and serving a writ, then the tenant will be
entitled to apply for relief, but if the landlord employs the dubious
and dangerous method of determining the lease by re-entering the
premises, then the tenant will be debarred from applying for
relief.
Mr. Reid concedes that re-entry can only avail the landlord
if the entry is lawful. Re-entry is unlawful where the premises
are occupied by the tenant but not unlawful where the premises
are occupied by the tenant’s goods. If the argument of the
trustees is correct, section 146 provides a method by which a
landlord can sneak up on a shop at night, break into the shop, and
install new locks so that the tenant loses his lease and can only
press his nose against the shop window being unable to obtain the
assistance of the court because he has become a trespasser
entitled to no rights and to no relief. The farce in the present
case when the landlord occupied the premises for four hours should
not be allowed to defeat the statutory rights of the tenant.
The right conferred by section 146(2) on a tenant to apply
for relief against forfeiture may without violence to the language,
be construed as a right to apply “where a lessor proceeds, by
action or otherwise” to enforce a right of re-entry. So construed,
section 146(2) enables the tenant to apply for relief whenever and
however the landlord claims that the lease has been determined
for breach of covenant. I have no doubt that this was the object
and intention and is the effect of section 146.
In Quilter v. Mapleson (1882) 9 Q.B.D. 672 a landlord
forfeited a lease before the Act of 1881 came into force by
issuing and serving a writ for possession. He recovered judgment,
the tenant appealed and the Act of 1881 came into force before
the appeal was heard. The Court of Appeal held that the Act was
retrospective and granted relief to the tenant. Lindley L.J. at p.
676 decided that section 14(2) was applicable:
“The action was brought by the landlord on the ground of
breaches committed before the Act, and he obtained
judgment before the Act came into operation, but execution
was stayed, so that he has never obtained possession. The
original action then is not yet at an end … so long as the
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tenant has not been turned out of possession he is within
the terms of the enactment, for the lessor is “proceeding to
enforce” his right of re-entry. The enactment then being in
terms retrospective must be construed according to its
terms as being retrospective.”
The judgments of Sir George Jessel M.R. and Bowen L.J.
were to the like effect and it is now settled law that where a
landlord forfeits a lease by issuing and serving a writ for
possession the tenant may apply for relief before but not after the
landlord has recovered judgment and re-entered. But although the
court limited the time during which a tenant could apply for relief
against forfeiture constituted by the issue and service of the writ,
the court had no power and in my opinion did not intend to
deprive a tenant of any right to apply for relief after a forfeiture
constituted by re-entry without judgment. Quilter v. Mapleson is
authority for a case where the landlord forfeits by issue and
service of a writ but is not authority for a case where the
landlord forfeits by re-entry.
In Rogers v. Rice [1892] 2 Ch. 170 a landlord forfeited by
the issue and service of a writ, recovered judgment and re-entered
pursuant to the writ of possession then issued and was held to be
no longer “proceeding by action” within section 164(2). The tenant
sought and was refused leave to set aside the verdict and the
judgment. The tenant later issued an originating summons seeking
relief from forfeiture under section 146(2). Lord Coleridge at pp.
171-172 said that a section 146 notice had been given and ignored,
and continued:
“The action proceeded to judgment, the judgment was
executed, so far as possession was concerned, and at the
time when the present proceeding was commenced the lessor
was in possession. The action then, so far as related to
enforcing the right of re-entry, was at end, and it cannot
be said that the landlord was “proceeding” to enforce his
right of re-entry. The case is clear on the terms of the
Act, but I cannot omit to notice that the same view was
taken by the judges of the Court of Appeal in Quilter v.
Mapleson 9 Q.B.D. 672, 677, where all three judges gave
their opinion to this effect, though that was not the point
on which their decision turned.”
The decision can be supported on the grounds that no court could
properly exercise its discretion to relieve against forfeiture after
the landlord had issued and served a writ, recovered judgment in
the action and entered into possession pursuant to that judgment.
The decision can also be supported on the grounds set out in the
speech of my noble and learned friend Lord Oliver of Aylmerton.
But the court had no power and in my opinion did not intend to
deprive a tenant of any right to apply for relief after a forfeiture
constituted by re-entry without judgment.
In Pakwood Transport Ltd. v. 15 Beauchamp Place Ltd.
(1977) 36 P. & C.R. 112 the Court of Appeal rejected an argument
by a landlord who had served a section 146 notice that the tenant
could not apply for relief from forfeiture until proceedings for
forfeiture had been instituted by the landlord. All three Lords
Justices derived from the cases of Quilter v. Mapleson (1882) 9
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Q.B.D. 672 and Rogers v. Rice [1892] 2 Ch. 170 the proposition
that in the words of Orr L.J. at p. 117:’
” … a lessee could not apply ‘for relief against re-entry or
forfeiture after the landlord had obtained a judgment of the
court entitling him to re-enter on a forfeiture; and it is
claimed, and in my judgment rightly claimed, that the same
principle must apply where the landlord has peacefully
recovered possession. In other words, once he has either
recovered possession or obtained an order for possession he
can no longer be said to be ‘proceeding by action or
otherwise to enforce a right of re-entry or forfeiture’.”
My Lords, I accept that it is now settled law that a tenant
cannot apply for relief after the landlord has recovered judgment
for possession and has re-entered in reliance on that judgment.
But I do not accept that any court has deprived or is entitled to
deprive a tenant of any right to apply for relief if the landlord
proceeds to forfeit otherwise than by an action instituted for that
purpose.
Orr L.J. continued:
“On this basis the argument for the lessor appears to me to
involve an absurdity, in that if the landlord has done no
more than serve a section 146 notice, it is too early for the
tenant to apply for relief; but if the landlord’s next step is
peaceably to recover possession, it is then too late for the
tenant to apply. For my part, I am not prepared to accept
an argument which leads to this absurdity, and I have no
hesitation in holding that a landlord who serves a section
146 notice is at that stage “proceeding to enforce a right of
re-entry or forfeiture” in that the service of such a notice
is a step which the law requires him to take in order to re-
enter or forfeit.”
My Lords, I accept the conclusion that a landlord who
serves a notice under section 146(1) can be said, for the purposes
of section 146(2) to be proceeding to enforce his rights under the
lease. A tenant authorised by section 146(2) to apply to the court
for relief against forfeiture if he fails to comply with a section
146 notice may make that application after service of the notice
for the purpose of elucidating the issues raised by the notice,
ascertaining the intentions of the landlord, and setting in train
the machinery by which the dispute between the landlord and the
tenant can be determined by negotiation or by the court. But the
fact that the tenant may apply to the court for relief after
service of the section 146 notice does not mean that if he does
not do so he loses the right conferred on him by section 146(2) to
apply for relief if and when the landlord proceeds, not by action
but “otherwise” by exercising a right of re-entry. No absurdity
follows from a construction which allows the tenant to apply for
relief before and after a landlord re-enters without first obtaining
a court order.
In the words of Laskin J.A. in Re Rexdale Investments Ltd.
and Gibson [1967] 1 O. R. 251 at 259 dealing with provisions in
the Ontario legislation indistinguishable from section 146(2), the
argument that a tenant cannot apply for relief after a landlord has
determined the lease by re-entry:
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“depends on a detached grammatical reading of the phrase
‘is proceeding’ . . . which makes nonsense of the phrase ‘or
otherwise’ (as covering physical re-entry)” by making
ineffective, in any practical sense, the provision for relief
from forfeiture applicable to such re-entry. We do not
construe statutes, especially when they are remedial … to
the point of self-contradiction. In my opinion, the phrase
‘is proceeding’ is more properly read in the sense of ‘has
proceeded’, and I am fortified in this view by the fact that
the exercise of the power of termination is manifested
effectively by the mere taking of proceedings as well as by
physical re-entry. What [section 146(2)] means, therefore, is
that when the landlord has terminated the lease by action
or by actual re-entry without action, the tenant may seek
relief from forfeiture in the pending action, if any, or, if
none, by proceedings initiated by him. In the latter case,
one would expect prompt reaction by the tenant . . . The
English cases relied on … [Rogers v. Rice [1892] 2 Ch.
170; Locke v. Pearce [1893] 2 Ch. 271 and Quilter v.
Mapleson (1882) 9 Q.B.D. 672] are distinguishable, if need be
… by the fact . . . that they relate to re-entry in
pursuance of a judgment for possession.”
These observations by a distinguished Canadian judge who
subsequently became Chief Justice of the Supreme Court of
Canada, support the views which I have formed concerning the
construction of section 146 and the ambit and effect of the earlier
decisions.
Mr. Reid argued that your Lordships should not interfere
with 19th century decisions and for my part I do not intend to do
so on this occasion or to question the result of the decision of the
Court of Appeal in Pakwood Transport Ltd. v. 15 Beauchamp Place
Ltd. (1977) 36 P. & C. R. 112. The authorities were never
directed to the point now in issue and certainly never decided that
issue.
It was suggested that Parliament in 1925 accepted the views
expressed in the 19th century cases. I agree that Parliament
accepted that a tenant cannot apply for relief under section 146(2)
after the landlord has forfeited the lease by issuing and serving a
writ for possession and in his action has recovered and enforced
judgment. The 19th century cases were not directed to the
problem which has now emerged.
We were informed that the researches of counsel had not
disclosed any reported case in which a landlord has forfeited by
re-entry and then successfully denied the right of the tenant to
apply for relief.
The trustees or their advisers, perhaps incensed by the
activities of the appellant in the present case, conceived and
carried out a dawn raid which fortunately did not result in
bloodshed. Since the decision of the Court of Appeal in the
instant case there has been a proliferation of section 146 notices
followed by pressure on tenants to surrender on terms favourable
to the landlord. If this appeal were not allowed, the only safe
advice for a tenant would be to issue proceedings for relief
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against forfeiture as soon as a section 146 notice is received at a
time when the tenant cannot know’ whether relief will be
necessary. A tenant ignorant of the development in the law
pioneered by the trustees in the present case will be at the mercy
of an aggressive landlord. The conclusions which I have reached
will not entail these consequences and will not again involve
Parliament in correcting judicial constructions of statute by further
legislation.
The results of section 146 and the authorities are as
follows. A tenant may apply for appropriate declarations and for
relief from forfeiture under section 146(2) after the issue of a
section 146 notice but he is not prejudiced if he does not do so.
A tenant cannot apply for relief after a landlord has forfeited a
lease by issuing and serving a writ, has recovered judgment and
has entered into possession pursuant to that judgment. If the
judgment is set aside or successfully appealed the tenant will be
able to apply for relief in the landlord’s action but the court in
deciding whether to grant relief will take into account any
consequences of the original order and repossession and the delay
of the tenant. A tenant may apply for relief after a landlord has
forfeited by re-entry without first obtaining a court order for that
purpose but the court in deciding whether to grant relief will take
into account all the circumstances including delay on the part of
the tenant. Any past judicial observations which might suggest
that a tenant is debarred from applying for relief after the
landlord has re-entered without first obtaining a court order for
that purpose are not to be so construed.
I would therefore allow the appeal and set aside the orders
of the trial judge and the Court of Appeal. The trustees must
pay the costs of the appellant in this House. There will be no
order for costs in the Court of Appeal because a number of issues
were decided against the appellant and there is no appeal from
any decision of the Court of Appeal other than the decision on the
right of the appellant to appeal for relief against forfeiture. The
application of the appellant for relief against forfeiture will be
remitted to the High Court. The judge would have been prepared
to grant relief against foreiture except for the fact that he
considered that he had no jurisdiction to do so. On the renewal
of the appellant’s application for relief the parties will be at
liberty to file and adduce further evidence in order that the judge
may consider the propriety of granting relief and the terms of
relief on the basis of the facts as at the date of the hearing of
the renewed application for relief. The costs of the original
hearing of all the issues by the trial judge and the costs of the
renewed application before the trial judge will be in the discretion
of the judge who hears the renewed application.
When the judge refused relief to the appellant on the
grounds of jurisdiction he made an order for costs against the
appellant on an indemnity basis. In my opinion such an order
should not be made. There is no reason why an unsuccessful
applicant for relief should be in any worse case than any other
unsuccessful litigant. Moreover, if a landlord is entitled to costs
on an indemnity basis whether relief is obtained or not, there will
be no inducement to the landlord to compromise his dispute with
the tenant.
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For my part I consider that the practice of ordering
indemnity costs as a condition of granting relief is ripe for
reconsideration. Indemnity costs to a landlord encourage lawyers
and surveyors and other advisers to charge large fees. I make no
criticism of the advisers of the trustees because I do not know
what fees and charges they intend. But it seems to me that in
principle a tenant should not be at the mercy of an order made by
a judge who has no means of knowing the effect of the order and
imposes no impartial criterion by which costs can be taxed down.
LORD OLIVER OF AYLMERTON
My Lords,
I have had the advantage of reading in draft the speech
delivered by my noble and learned friend, Lord Templeman, and I
agree that the appeal should be allowed for the reasons which he
has given. I add a few words of my own only in deference to the
very clear and helpful argument presented to your Lordships by
Mr. Reid Q.C. on behalf of the respondent, which, at one point
during the hearing, appeared to me to present an insurmountable
obstacle in the appellant’s path.
Broadly the argument was to this effect. Rogers v. Rice
[1892] 2 Ch. 170 established that once possession had actually been
resumed by the landlord under the forfeiture clause in a lease it
was too late for a successful application for relief to be mounted
under section 146(2) of the Law of Property Act 1925 (then
section 14(2) of the Conveyancing Act 1881) since the landlord was
no longer “proceeding” to enforce a forfeiture but had completed
the process. That construction of the section, it was urged, had
now stood unchallenged for the past 100 years and could be
departed from only by overruling Rogers v. Rice. Parliament had,
in 1925, re-enacted the section in precisely the same terms and, it
must be assumed, had done so in the knowledge of the
construction accorded to the words “is proceeding” by a strong
Court of Appeal consisting of Lord Coleridge C.J., Lindley and
Kay L.JJ. following obiter dicta to the same effect from Jessel
M.R., Lindley and Bowen L.JJ. in Quilter v. Mapleson (1882) 9
Q.B.D. 672. Whatever might have been the position in 1925, when
the legislature came to reconsider the legislation, it was now too
late for your Lordships to adopt a construction which differed
from what must have been intended by Parliament when the self-
same words were re-enacted. In so submitting, Mr. Reid was
echoing what was said by Sir Wilfrid Greene M.R. in Egerton v.
Jones [1939] 2 K.B. 702 at p. 707.
I confess to having been very much troubled by this
submission, to which, at the time, I could see no logical answer
but which, as it seemed to me, led to a result not only manifestly
inconvenient but also opposed to common sense. On further
consideration, however, I think that the fallacy of the argument
lies in the way in which the essential premise is expressed.
Neither Rogers v. Rice nor Quilter v. Mapleson did, in fact,
establish that the right to apply for relief under section 146(2) was
ousted simply by a landlord’s resumption of possession, however
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that occurred. The expressions used by the judges in both cases
were directed only to the position of a landlord who was the
plaintiff in legal proceedings against his tenant for possession of
the premises comprised in the lease on the ground of forfeiture.
In Quilter v. Mapleson the point did not arise directly, or, indeed,
at all, since notice of appeal by the tenant was given before
judgment against him was executed and a stay had been granted
pending appeal. Bowen L.J.’s statement (quoted by Lord Coleridge
C.J. in Rogers v. Rice) that “the tenant may apply for relief until
the landlord has re-entered” was made in the context of pending
proceedings for possession. It was, in fact, not strictly accurate
since the re-entry dates technically from the service of the writ;
but it was in any event clearly directed to the enforcement of a
final and unappealed judgment in the proceedings.
In Rogers v. Rice, similarly, the very brief judgments were
directed entirely to a situation in which the landlord had obtained
a judgment for possession which had been executed and against
which there was no appeal, either pending or possible. It was
pointed out by Lord Coleridge C.J. that at the time when the
tenant’s originating summons for relief was taken out “the action .
. . so far as related to enforcing the right of re-entry, was at an
end.” It could not therefore be said that the landlord was
“proceeding” to force his right of re-entry. Now although it is
true that Lord Coleridge also mentioned that the landlord was in
possession, the salient point, as I read the judgment, was not the
mere fact that the landlord had resumed possession but the fact
that possession was held under an unassailable judgment in
proceedings which had been litigated to the end. It is clear, for
instance, that where a judgment for possession has been wrongfully
obtained because, for instance, no notice was served under section
146(1), it may, by appropriate procedure, be set aside so as to
enable one deriving title under the lessee to defend (see Jacques
v. Harrison (1884) 12 Q.B.D. 165). What defeats the claim to
relief is not the fact of possession simpliciter but possession under
a final and unassailable judgment. It is, in fact, worth noting that
in Rogers v. Rice there had been, after execution of the writ of
possession, an application to set the judgment aside. That had
failed and it was therefore unnecessary for the court to advert to
it in its judgment; but had it succeeded, I doubt whether the
result would have been the same, for even though the landlord was
in actual possession, his title to hold the property would have
rested upon the forfeiture of the lease and not upon the judgment
in the proceedings. He would, therefore, still be “proceeding” to
enforce the forfeiture in seeking to restore the judgment.
As my noble and learned friend Lord Templeman has said,
the court was simply not directing its mind to what the position
might be in a case where the landlord sought to enforce the right
of re-entry, not by proceedings for possession, but by physical
entry upon the demised premises; and I do not think that it
necessarily follows at all, as the Court of Appeal seems to have
assumed in Pakwood Transport Ltd. v. 15 Beauchamp Place Ltd.
(1977) 36 P. & C.R. 112, that because legal proceedings resulting
in a final, unappealed and fully executed judgment are then at an
end so that the landlord is no longer enforcing his right of re-
entry, a landlord who has entered upon the demised premises or,
possibly, even upon a portion of the demised premises “in the
name of the whole” (to use the time-honoured formula), is not,
– 11 –
once he has lawfully set foot on the premises, any longer
“proceeding … to enforce” his right of re-entry. I would, for
my part, adopt the analysis suggested by Sir Nicolas Browne-
Wilkinson V.-C. in the Court of Appeal in the instant case. A
landlord who re-enters peaceably holds possession of the demised
premises as against the tenant and his privies by virtue of the
right accorded to him by the proviso for re-entry contained in the
lease. If the lease is set up against him, he can justify keeping
the tenant out only by pointing to the forfeiture clause and
pleading his entry under it; and so long as that remains the
position he is “proceeding … to enforce” it. Obviously there is
going to come a time when a tenant who delays applying for relief
will find himself debarred from obtaining it, but theoretically the
landlord who has elected to enforce his forfeiture in this way
remains vulnerable to an application unless and until he obtains a
final judgment for possession.
That position is to be contrasted with that of the landlord
who adopts the more conventional course of forfeiting by means of
an action for possession. Once he has obtained judgment and has
been put into possession, any attempt by the tenant to raise the
lease against him is met by a simple plea of the judgment. The
landlord is no longer proceeding to enforce a right of re-entry, for
his possession rests now, not upon the exercise of a right under
the lease, but upon a judgment of the court which, as between the
parties and their privies, constitutes res judicata. Proceedings for
relief under section 146(2) cannot therefore be effective unless and
until that position is reversed and the judgment set aside, as it
might be, for instance in the case of a default judgment or one
obtained without proper service.
This seems to me to be an essential distinction and it is
one which is not touched by and was not adverted to in Rogers v.
Rice. Accepting, therefore, that Parliament, in re-enacting section
14(2) of the Act of 1881 as section 146(2) of the Act of 1925, was
endorsing and perpetuating the Court of Appeal’s construction that
a landlord holding by virtue of an executed final judgment was no
longer “proceeding to enforce” his right of re-entry but was merely
relying upon his judgment in proceedings which had conclusively
terminated, there is nothing in this construction which governs the
quite different case of the landlord who elects to exercise his
right “otherwise” by physical entry -upon the property.
It was, of course, the ratio of the decision of the Court of
Appeal in the Pakwood Transport case, that a peaceable entry by
a landlord was to be equiparated with an executed judgment, the
court’s conclusion in that case that the proceedings were not
premature being based on what they saw as the manifest absurdity
of the right to relief being destroyed eo instante with the
forfeiture from which it arises. It does not, however, follow from
the rejection of that ratio that the conclusion itself was wrong.
“Is proceeding” means, I think, no more than “is taking the
necessary steps” or “proceeds” which would include the service of
the necessary preliminary notice under subsection (1). Where a
landlord has given notice of his intention to forfeit, on, for
instance, the liquidation of a company tenant, there is obvious
good sense in enabling the liquidator to clarify the position without
waiting for the landlord’s action so that the lease may be sold as
soon as possible.
– 12 –
For these reasons and for those more fully expressed in the
speech of my noble and learned friend, Lord Templeman, I agree
that the appeal should be allowed and concur in the order for
costs which he proposes.
LORD GOFF OF CHIEVELEY
My Lords,
I have had the advantage of reading the speech of my noble
and learned friend, Lord Templeman and, for the reasons which he
gives, I too would allow this appeal.
LORD JAUNCEY OF TULLICHETTLE
My Lords,
I have had the advantage of reading the speech of my noble
and learned friend, Lord Templeman and, for the reasons which he
gives, I, too, would allow this appeal.
– 13 –
Source: https://www.bailii.org/
