Kenny v Preen [1962] EWCA Civ 2 (15 October 1962)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
From: Deputy Judge Ellison, (Marylebone County Court).

Royal Courts of Justice.
15th October 1962.

B e f o r e :

LORD JUSTICE ORMEROD
LORD JUSTICE DONOVAN
and
LORD JUSTICE PEARSON.

____________________

Between:

ELIZABETH KENNY (feme sole)
(Respondent)
-v-
 
J. PREEN (male)
(Appellant)

____________________

(Transcript from the Shorthand Notes of The Association of Official Shorthandwriters Ltd., Room 392, Royal Courts of Justice, and 2, New Square, Lincoln’s Inn, London, W.C.2).

____________________MR H. LESTER (instructed by Winston & Co.)
appeared on behalf of the Appellant (Defendant).
MR P. SHERIDAN (instructed by Fremont & Co.)
appeared on behalf of the Respondent (Plaintiff).

____________________

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LORD JUSTICE ORMEROD: I will ask Lord Justice Pearson to deliver the first Judgment in this case.

LORD JUSTICE PEARSON: This la an Appeal by the defendant landlord, Mr Preen, from a judgment of His Honour Deputy Judge Ellison given at the Marylebone County Court on the 10th Nay, 1962. The judgment was in favour of the plaintiff tenant, Mrs Kenny, for £100 damages for breach of an implied covenant for quiet enjoyment of her two-roomed flat in the landlord’s house, and for an injunction to restrain the landlord from interfering with the tenant’s quiet enjoyment of the flat, and for costs on scale 3.

There is a cross-appeal by the tenant against the learned Judge’s refusal to grant a declaration that her tenancy of the flat is protected by virtue of the Rent Acts, 1920-57.

It will be convenient to refer to the pleadings. The Particulars of Claim, in paragraph 1, state:

“The Plaintiff is the tenant and the Defendant is the landlord of two rooms… which said premises the landlord let to the tenant on the 23rd December, 1956, at a rental of £3.12s. per week”.

Paragraph 2:

“The said tenancy is protected under the provisions of the Rent Acts, 1920 to 1957, by virtue of the fact that the rateable value of the premises comprised therein, if separately apportioned, would be leas than £40”.

Paragraph 3:

“In breach of the covenant for quiet enjoyment implied by law by virtue of the said tenancy the Defendant has wrongfully threatened to evict the Plaintiff from the premises on numerous occasions, and by letter dated 16th January, 1962, the Defendant threatened to remove the Plaintiff’s possessions from the said flat”.

Then the Defence is quite short, in three paragraphs:

“(1) It is denied that the tenancy is a tenancy of unfurnished premises. (2) It is denied that there was any breach as alleged or at all. (3) The Defendant will contend that the Particulars of Claim disclose no cause of action and that the County Court has no jurisdiction to determine the cause”.

In the County Court much of the evidence and argument was directed to the question raised by paragraph 1 of the Defence, whether the tenant’s tenancy was a tenancy of unfurnished premises so as to be within the protection of the Rent Acts. There was no argument on that question in this appeal. Mr Lester, in presenting the Appeal on behalf of the landlord, has relied upon another point, which he took in the County Court both as a preliminary objection to the jurisdiction and as an argument on the merits against the tenant’s claim. The point la this. Be it assumed that at all material times the tenant had a tenancy of the flat and accordingly there was to be implied a covenant for quiet enjoyment Mr Lester has contended that neither the facts alleged in paragraph 3 of the Particulars of Claim, nor any facts found by the learned Judge, nor any facts which might be regarded as proved by the evidence, could in law constitute a breach of the covenant for quiet enjoyment, and therefore the claim for damages was untenable and should have been rejected, and there was no basis for granting the injunction.

Mr Lester has a further point as to the amount of damages, but I will deal with that at a later stage. The main question in this appeal is whether there was a breach of the covenant for quiet enjoyment.

In my view there is no discrepancy between the tenant’s case as pleaded in paragraph 3 of the Particulars of Claim and the relevant facts revealed by the evidence and found by the learned Judge. The landlord did not ask for further and better particulars of paragraph 3 of the Particulars of Claim, and the wording of that paragraph is wide enough to cover the facts on which the tenant now relies.

At the trial there was an agreed bundle of correspondence, and oral evidence was given by the tenant and by the landlord, and the learned Judge gave a full judgment stating his findings ‘ of fact and his views on the legal issues involved. It is, evident from his findings that he accepted the tenant’s evidence in preference to that of the landlord, and ha summarised the general effect of the landlord’s letters as saying to the tenant in the loudest possible terms: “Get out”; and in a later passage of his judgment the learned Judge said;

“I also find that the conduct of the defendant landlord in the correspondence by reason of his letters as a whole – note the dates, the frequent occurrence of these letters and the terms of them, consider the evidence of the Plaintiff concerning shouting at her and knocking at her door, all obviously in connection with the point of view advanced in the correspondence pressed upon her – it seems to me perfectly plain that Mr Preen was telling her that she had no business to be there any longer and she must get out”.

The learned Judge, however, was taking the view in law that a mere challenge by the landlord to the tenant’s title, a denial of her title, would in itself constitute a breach of the covenant. As I am not able to adopt that view of the law I must examine the correspondence and the principal passage in the oral evidence in order to ascertain more fully what the landlord’s conduct was and, in particular, the manner and content of his threatening communications.

I will not refer to all of these letters but to the most important of them. On the 3rd March, 1961, the landlord wrote to the tenant:

“Dear Madam,

re Notice to Quit,

As you are aware that your notice to quit the two rooms has expired and I must make it clear to you that I urgently require these rooms for myself. You have always complained about something all the time you have been here likewise you did at your previous address and I have tried to do all I can for you in every way possible. Therefore I intend starting work on the rooms early next week* The delay in moving is costing me unnecessary expense and I must hold you responsible for this cost”.

At the moment when the landlord wrote that letter he may have believed that he had a clear right to possession or he may not, but on the following page, on the same date, 3rd March, there is a letter from the solicitors for the tenant explaining the position to him, and making it quite clear that in their view, as they said, “the aforementioned premises let to our client are not furnished premises within the meaning of the” various Acts, and they say:

“It follows from that that our client enjoys the protection of the Rent Acts”. They go on to say: “We have advised our client accordingly, and that she need not move from the premises and that the effect of a Notice to Quit would only be to turn her from a contractual tenant into a statutory tenant. In any event we are instructed that the Notice to Quit, which we understand was put into a rent book, was not a valid notice”.

Then they ask for the restoration of the rent book to the Plaintiff, and go on to say:

“Finally we have advised our client that if you wish to prefer any claim to the premises you are obliged to make a claim through the local County Court. In this event our client will seek legal aid in order to defend any proceedings you may wish to institute. It is, however, to be hoped that matters can be settled amicably between yourself and our client rather than have recourse to legal proceedings”.

It is significant that the landlord did net make any answer to that letter from the tenant’s solicitors raising a legal issue. Instead of that, he chose to write again to the tenant herself, and he said:

“I have received a letter from Oliver O. Fisher & Co. regarding your tenancy of the first floor two rooms. It seems that you have failed to tell these solicitors the truth and it is no good you trying to make false accusations as I will not stand for it”. Then he goes on to argue the question, and he says: “You have now gone far enough and I require” possession “within seven days otherwise I intend forcing my rights. All damage caused by you will be charged for”.

On the 29th March he writes again to the tenant:

“It seems that you wish me to take drastic measures against you to have you evicted from the rooms. You have caused trouble all the time you have been a tenant of mine and now you are nearly two months in occupation of the rooms and no rent has been paid.

I will claim heavy damages against you, as it is costing me now over £5 every week now for space I urgently require for my business. You have made excuses and actually not told the truth on many occasions and now I must enforce my rights. It is now up to you to vacate the rooms to save any further unpleasantness”.

There were further letters, and then at page 9, on 4th November, he wrote to her:

“Dear Madam,

You are very much in arrears of rent due and unless same is brought up to date by 10 a.m. Monday, 6th November, I will have no other alternative but to evict you next week. I have been very tolerant with you, which no other person would have been”.

In my view “evict you” must refer to physical eviction, because he is threatening to evict her next week. That cannot refer to legal proceedings. It means physical eviction, presumably by force if necessary.

There is a further letter, and on page 11 there is a further notice to quit which may or may not have been valid.

Then on page 12 of the bundle, on 12th December, the landlord writes:

“I will be taking occupation of the two rooms on the 2nd of January as when the Notice to Quit is then operative”.

Then on page 13, on 16th January, he wrote:

“You have not vacated the rooms, although I have served you with the Official Notice to Quit. Unless I have possession of the rooms you occupy by this weekend I will be forced to have your belongings moved. So please avoid any unpleasantness by obeying the order served”.

The reference to “the order” I think must be a mere reference to the notice to quit. There is a threat that he will be forced to have her belongings removed. It is a threat of physical action to oust her from the premises. There is again a letter on page 15, of 20th January, 1962, in which he says:

“Dear Madam,

I have given you every chance to carry out my request to quit. Next week I will instruct Removals to clear your property from the rooms and you must make arrangements regarding same”.

There had also been a letter from the solicitors on the 19th January, and once more that was not answered by the landlord, who preferred instead to write to the tenant, seeking to bring pressure upon her.

That is the main part of the correspondence in this ease. There is also one passage in the oral evidence of the tenant which I should read. She said:

“I received letter 3rd March, 1961. When I saw him (Defendant) he said to get out of room. He shouted at me and said he would get van and put things in street. He knocked on door to tell me this. ‘I must have these rooms’. ‘I am going to put your furniture in the street’. He knocked on door quite a number of times. He shouts quite often in past year”.

Mr Lester has contended on behalf of the landlord that the evidence does not reveal any breach of the covenant, because the landlord only made communications to the tenant and did nothing amounting to physical interference with the tenant’s possession and enjoyment of the premises. He relied on passages in the judgment in Owen v. Gadd (1956, 2 Q.B., 99, C.A.), and in judgments in previous cases there cited, as showing that some direct physical interference is necessary to constitute a breach of the covenant.

Mr Sheridan has contended on behalf of the tenant, first, that a mere challenge by the landlord to the tenant’s title, a denial by him of her title, would be sufficient to constitute a breach of the covenant; secondly that in this case there was in fact some physical interference with the tenant’s possession and enjoyment of the premises; and thirdly, mere generally, that on the facts of this ease, taken as a whole, there was a breach of the covenant. He cited the case of Edge v. Boileau (1885, 16 Q.B.D., 117, at 119) as showing that physical interference is not necessarily required to constitute a breach of the covenant. That was a case in which the landlord was held to have committed a breach of the covenant by telling the subtenants to pay their rent to him instead of to the tenant. It is easy to see that that was an interference by the landlord with the tenant’s enjoyment of his rights as tenant.

The learned Judge accepted Mr Sheridan’s first contention, that a mere challenge by the landlord to the tenant ‘a title, a denial by him of her title, would be sufficient to constitute a breach of the covenant. I am not able to adopt the learned Judge’s view on that point. We are not concerned in this case with a denial of the tenant’s initial title by virtue of the letting, and I am not considering whether or not that could be a breach of the covenant. In this case the landlord was asserting that the tenant’s title, her right to possession of the premises, although initially valid, had been wholly determined by a notice to quit. In my judgment a landlord by merely making that assertion, however wrong he may be, does not commit a breach of covenant. He la entitled to make that assertion, at any rate if he believes it to be true, frequently, emphatically and even rudely. He is entitled also to threaten proceedings in the Courts for possession and damages.

In the present case, however, there was much more than that. The landlord evaded answering the solicitors’ letters raising the tenant’s defences to his claim. He concentrated his attention on the tenant herself and tried, by a series of” threatening communications, to drive her out of her possession of the premises. The threats were not merely of legal proceedings: there were threats of physical eviction of the tenant and removal of her belongings. Moreover there was an element of direct physical interference by repeatedly knocking on the door and shouting the threats to her. That element of direct physical interference was not trivial but substantial in this case, because it was persisted in and because it has to be seen against the background of the threatening letters.

The implied covenant for quiet enjoyment is not an absolute covenant protecting a tenant against eviction or interference by anybody, but is a qualified covenant protecting the tenant against interference with the tenant’s quiet and peaceful possession and enjoyment of the premises by the landlord or persons claiming through or under the landlord. The basis of it la that the landlord, by letting the premises, confers on the tenant the right of possession during the term and impliedly promises not to interfere with the tenant’s exercise and use of the right of possession during the term. I think the word “enjoy” used in this connection is a translation of the Latin word “fruor” and refers to the exercise and use of the right and having the full benefit of it, rather than to deriving pleasure from it.

The nature of the implied covenant was explained in Budd-Scott v. Daniell (1902, 2 K.B., 351), in judgments of a Divisional Court. Lord Alverstone, the Chief Justice, said at page 355:

“Apart from authority it would certainly seem, on principle and in common sense, that when one person agrees to give possession of his house for a time to another, that ought to carry with it an agreement that he, the landlord, and those claiming through him, will not dispossess the tenant during that time. Therefore, unless there is some special meaning attached to the word ‘demise’, the good sense of the thing would seem to be that, upon an agreement to let, a covenant or contract was to be implied that the landlord and those claiming under him would not disturb the possession of the tenant. Unless driven to do so by authority, I should hesitate a long time before drawing any distinction in that respect between the words ‘agree to let’ and ‘demise'”.

The learned Lord Chief Justice said that, because reference had been made to a previous case of Baynes & Co. vLloyd & Sons, in which Lord Justice Kay had said that the implied covenant was only to be implied if the word “demised” was used, and could not be implied if some other word was used.

Also in the same ease of Budd-Scott v. Daniell, at page 361 Mr Justice Channell said:

“I must say that, speaking for myself, until I read this judgment of the Court of Appeal in Baynes & Co. v. Lloyd & Sons I always had thought that from the mere fact of letting there was some agreement implied by the landlord that the tenant should not be disturbed, though there might be a question as to what that agreement was. As to this question also, however, I should have thought that it had been now settled that the agreement was only against disturbance by the lessor and those claiming under him, and was limited to the duration of the lessor’s interest. If the undertaking is limited in that way, it would seem, as was pointed out by Chief Justice Cockburn in Hall v. City of London Brewery Co., to be nothing more than that which the act of letting into possession for a fixed period would itself in common sense import. If a man lets a house for a year, he most undoubtedly does undertake that he will not himself interfere with the possession of his tenant during that time, and it is only reasonable that his undertaking should be held to extend to those claiming under him”.

Reference may also be made to a case called Markham vPaget (1908 1 Chancery, 697). At page 718 Mr Justice Swinfen Eady read an extract from Platt on Covenants, and the concluding words of the extract are these: “for, as against the party himself, the Court will not consider the word lawful, nor drive the covenantee to an action of trespass, when, by the generally implied covenant in law, the vendor had engaged not to annul his own deed, either by a rightful or an illegal entry”. That la surely the same principle emerging there, that the landlord is not allowed to “annul his own deed” by interfering with the possession which he himself has conferred on the tenant.

I would decide on two grounds in favour of the tenant’s contention that there was, in this case, a breach of the covenant for quiet enjoyment. First, there was a deliberate and persistent attempt by the landlord to drive the tenant out of her possession of the premises by persecution and intimidation, and intimidation included threats of physical eviction of the tenant and removal of her belongings. In my view that course of conduct by the landlord seriously interfered with the tenant’s proper freedom of action in exercising her right of possession, and tended to deprive her of the full benefit of it, and was an invasion of her rights as tenant to remain in possession undisturbed, and so would in itself constitute a breach of covenant, even if there were no direct physical interference with the tenant’s possession and enjoyment. No ease of this kind has ever been considered by the Courts before, and I do not think the dicta in the previous cases should be read as excluding a case of this kind where a landlord seeks, by a course of intimidation, to “annul his own deed”, to contradict his own demise, by ousting the tenant from the possession which the landlord has conferred upon her.

Secondly, if direct physical interference is a necessary element in the breach of covenant that element can be found in this case to a substantial extent, as I have already stated.

Next there is the question as to the amount of damages for the breach of the covenant. The sum adjudged was £100. There was, however, no allegation or evidence of any actual pecuniary or material damage suffered by the tenant. The only wrongful act alleged was a breach of covenant, that is, a breach of contract. No tort such as trespass or nuisance was alleged. An application at the trial for leave to amend by adding a claim in nuisance was refused. As the claim was only in contract and not in tort, punitive or exemplary damages could not properly be awarded: Perera v. Vandiya (1953 1 W.L.R. 672, C.A.). Accordingly there was no ground for awarding any damages other than nominal damages, which I would assess at 40s.

The reduction of the amount of damages does not affect the injunction, which was properly granted to restrain repetition of the breach of covenant found to have been committed. It is true, as Mr Lester pointed out, that the Particulars of Claim failed to allege, as they should have done, that the landlord threatened and intended to continue or repeat the breach unless restrained by order of the Court. This, however, was a minor defect in the pleading which should not affect the decision. The intention can and should be inferred from the evidence.

There remains to be considered the question raised by the cross-appeal against the learned Judge’s refusal to make a declaration. The declaration prayed by the tenant in her Particulars of Claim was:

“A declaration that her tenancy of the said premises on the first floor of 5, Elgin Crescent aforesaid la protected by virtue of the Rent Acts, 1920 to 1957”.

The learned Judge decided that he had no jurisdiction to grant this declaration. I think that the ground of his decision was that the declaration could not reasonably be regarded as ancillary to the claim for damages: De Vries vSmallridge (1928, 1 K.B., 482, C.A.) and The County Court Practice, 1962, page 62. In my view the decision of the learned Judge should be upheld.

It has been contended for the tenant in the cross-appeal that the claim or the judgment for damages for breach of covenant for quiet enjoyment necessarily involves the existence of such a covenant which, in turn, necessarily involves the

existence of a tenancy, and a declaration of the existence of a tenancy would merely spell out and record something already implicit in the claim or judgment for damages, and accordingly the prayer for the declaration should be regarded as being for ancillary relief and so within the County Court’s jurisdiction. The difficulty, however, is that the declaration asked for is not merely a declaration of the existence of a tenancy but a declaration that her tenancy is protected by the Rent Acts. That is a further step, and a major step, and not something ancillary.

I would allow the appeal, but only to the extent of reducing the amount of damages from £100 to £2.

I would dismiss the cross-appeal.

LORD JUSTICE ORMEROD: I agree with the Judgment which has been delivered by Lord Justice Pearson and I have come to the same conclusion for the same reasons. There la nothing I wish to add.

LORD JUSTICE DONOVAN: Save as to damages I agree that the Appeal should be dismissed.

I do not think that the Court here is making any alarming extension to the scope of an implied covenant for quiet enjoyment. We are not saying it is a covenant that the tenant shall enjoy peace throughout his tenancy, or be immune from even a temporary disturbance of his quiet. We are here dealing with a special – and, I hope, unusual – case. It is a case of a somewhat bullying landlord and an elderly and apparently timid woman who is his tenant. From November, 1959, to March, 1962, a period of some 17 months, he pursued a set campaign to get rid of her by means of abusive and defamatory letters, coupled with calls at her rooms, where he knocked on the outside door demanding to have the rooms and threatening to put the Respondent’s furniture in the street. When eventually the Respondent took advice and her solicitors wrote to the Appellant he preferred to ignore the solicitors and to reply to this lady, repeating the threats and abuse. The effect of this campaign must have been, among other things, to make the lady afraid that if she left her accommodation for sufficient time she might return to find that the Appellant had dispossessed her and put her belongings in the street* In this way her peaceable enjoyment of the occupation of the rooms was certainly diminished.

I have no difficulty in concluding that the Appellant’s conduct was direct physical interference with the enjoyment of the premises let, and more than the creation of a mere personal annoyance. If that view be justified then, on the authorities, there has been a breach of the covenant for quiet enjoyment.

It was argued for the Appellant that there was no physical act done here; but short of a battery how more physical can you get than by knocking on the tenant’s door and shouting threats through it?

It may be that modern conditions of life may call for a review of the requirement that some physical act is an essential element in a breach of the covenant for quiet enjoyment! but in the present case I think the physical element is present.

On the question of damages, I agree that nominal damages only should have been awarded, and that these should be the sum of £2.

As to the cross-appeal, the general ancillary jurisdiction in the County Court is conferred by section 74 of the County Courts Act of 1959, which so far as here material reads thus: “Every county court, as regards any cause of action for the time being within its jurisdiction, shall, in any proceedings before it – (a) grant such relief, redress or remedy or combination of remedies, either absolute or conditional….as ought to be granted or given in the like case by the High Court and in as full and ample a manner”.

 

This Court, in De Vries v. Smallridge (1928, 1 K.B. 4) held that the jurisdiction of the County Court to make declarations, being only an ancillary jurisdiction, was not available unless the claim or demand was one also within the jurisdiction of the County Court. That condition la satisfied here.

But in Humber Conservancy Board v. Federated Coal and Shipping Co. (1948, 1 K.B., 492), Lord Justice Scrutton said this at page 496: “I only wish to say this further. For some odd reason the plaintiffs began by claiming a declaration, and followed it by a claim for £3.10s. We have said several times in this Court that much too much use is being made of declarations in the county court. I need only refer to two recent cases, Smith v. Smith and, in the Court of Appeal, Rex v. Cheshire County Court Judge and United Society of Boilermakers, where some very relevant remarks of Lord Sterndale will be found. Declarations are only to be asked as ancillary to money claims. In what sense the declaration asked for in this case is ancillary to a claim for £3.10s. I have been quite unable to understand. It is asked that the learned judge should declare the facts or some of the facts which it is necessary to establish in order to make a claim for £3.10s. But one might as well put in a claim for a declaration that he should give judgment for £50 or £100. People ask for declarations without thinking what they want declarations for”. I do not say that that last observation applies here. But how is the declaration ancillary to the claim for damages which here succeeded?

It is argued that in order to establish the money claim a tenancy had to be established of unfurnished premises, and that therefore it would be right to declare that that fact had been established. But if this were so why should not a declaration be asked for of every fact which had to be established as the foundation for a money claim? This, however, would not be the granting of ancillary relief. Ancillary means subservient to; and here it does not serve or assist this particular claim for damages to declare that the lady’s tenancy

is protected by virtue of the Rent Acts. A different wording is now proposed, namely, that her tenancy is an unfurnished tenancy and as such entitled to protection. But, as I understand the matter, this will still leave open the question whether it remains a contractual or has become a statutory tenancy. And whichever it is does not affect the claim for damages. That the lady was a tenant of one sort or another was not disputed.

The Respondent’s real reason for seeking a declaration is to avoid further litigation on the question whether the tenancy is furnished or not since. it might be said that this was not the ratio decidendi of the present decision. I think that the Appellant would be ill-advised if he sought to re-open this question after the length of time it occupied the County Court* Be that as it may? this consideration does not cure the fundamental defect of a want of jurisdiction*

I think, therefore, that the Respondent’s Appeal fails.

(Appeal allowed only to extent damages reduced from £100 to £2; Croat-appeal dismissed; no order as to costs on appeal and cross-appeal; Legal Aid taxation of Respondent’s costs in the appeal).

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