Case No: CCRTF 99/1128/B2

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LAMBETH COUNTY COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday, 13th April 2000

B e f o r e :

LORD JUSTICE ROCH
LORD JUSTICE CLARKE
and 
sir christopher slade
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	Sheila venetta pemberton		Appellant	
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	mayor and burgesses of the london borough of southwark	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
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Mr Paul Morgan, QC & Tracey Bloom (instructed by  Glazer Delmar for the Appellant)
Mr Michael Barnes, QC & Tiffany Scott(instructed by  London Borough of Southwark Legal Services for the Respondent)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Roch:

The issue in this appeal is whether a tolerated trespasser can sue a local authority owner of premises in nuisance.  In April 1990 the appellant, Miss Pemberton, entered into a tenancy agreement with the respondents in respect of a flat at 40, Chepstow Way, London SE15.  That was a secure tenancy under Part IV of the Housing Act, 1985.  That meant that the appellant’s tenancy could not be brought to an end by the respondents except by obtaining an order of the court for possession of the flat, s. 82(1) of the Housing Act, 1985.

On the 1st July 1992 the judge of the Lambeth County Court made an order that the respondents should recover possession of the flat against the appellant “which was not to be enforced for 28 days in any event” and for so long thereafter as the appellant punctually paid the respondents “the arrears of rent by instalments of £2.15 per week in addition to the current rent”.  The order was made because on that date the appellant was in arrears with her rent in the sum of £896.91.

The appellant failed to make the payments required by that order.  Consequently on the 29th July 1992 the appellant became a “tolerated trespasser” and was liable to be evicted from the flat at any time on the respondents obtaining from the County Court office a warrant for possession and instructing the bailiffs to execute that warrant.

On the 16th October 1992 the appellant applied to the District Judge of the Lambeth County Court for an order “to have the warrant for possession suspended on terms”.  On the 25th November 1992 the District Judge ordered that the warrant of possession be suspended “so long as (the appellant) pays current rent and £2.15 per week off arrears”.  Again the appellant failed to make the payments required by that order, the breach occurring on the 27th November 1992.

On the 28th October 1997 the appellant commenced proceedings against the respondents alleging that the flat was infested with cockroaches, that the infestation had started in 1992; that the cockroaches had entered the flat from the common parts of the building, notably the service ducts for the district heating system, which common parts were in the ownership and possession of the respondents.  The appellant claimed that the infestation had affected her enjoyment of the flat, and had damaged her health and the health of her two children and had damaged her property in the flat such as mattresses, washing machines and so forth.  When these proceedings were started the appellant was £904.05 in arrears on her “rent account”, some £7.14 more than her arrears had been on the 1st July 1992.

In their defence, the respondents admitted the infestation and claimed that they had taken steps to eradicate the infestation but that the appellant had not always co-operated with them in that process.  In addition the respondents’ defence was that the appellant had no cause of action against them; she was not their tenant and did not have a sufficient interest in the flat to support an action in nuisance.  The respondents further alleged that they did  not owe a duty of care to the appellant.

In a reply the appellant conceded that she had not been, since July 1992 a tenant and could not pursue a statutory or contractual claim.

The case  came before HHJ Cox on a preliminary issue, namely whether the appellant did have a cause of action against the respondents in respect of the infestation.  On the 5th October, last year HHJ Cox ruled that there should be judgment for the respondents.  It is to be noticed that by the time of that ruling the appellant had left the flat at 40, Chepstow Way and been re-housed in a different Local Authority property.

Before the judge, counsel for the appellant conceded that her claims in nuisance and in negligence stood together and should the appellant have no cause of action against the respondents in nuisance then she would have no cause of action against the respondents in negligence.  That concession was withdrawn at the hearing of this appeal.  It was conceded by Mr Morgan QC for the appellant that in so far as there was any claim for loss of amenity or loss of enjoyment of the flat based on negligence, then such a claim would fail if the appellant did not have a cause of action against the respondents for nuisance in respect of the infestation.  It was Mr Morgan’s submission that the appellant did have a cause of action in negligence against the respondents in respect of the infestation with regard to her claims that she herself had suffered personal injury and that personal property of hers in the flat had been damaged by the infestation.  Mr Michael Barnes, QC for the respondents during oral argument, conceded that the appellant did have a cause of action in negligence in respect of these heads of loss and damage, subject to the appellant being able to prove that she had indeed suffered such loss and damage.  Consequently it was common ground between counsel that this case would have to be returned to the Lambeth County Court for the appellant’s claim based on the tort of negligence in respect of those heads of damage to be tried.

The sole issue in this appeal is whether a tolerated trespasser has a cause of action against the owner of the property in nuisance.

A secure tenancy under Part IV of the Act ceases when an order for possession takes effect, even if the former secure tenant remains in occupation, see Thompson -v- Elmbridge Borough Council [1987] 1WLR 1425 CA.

A court before whom proceedings for possession of a dwelling let under a secure tenancy are brought has the following powers under s. 85 of the Act: First, the court may adjourn the proceedings for such period or periods as it thinks fit.  Second, if it makes an order for possession it may at the time of making the order for possession or at any time before the execution of that order, stay or suspend the execution of the order, or postpone the date of possession for such period or periods as the court thinks fit.

If the court adjourns the proceedings or orders a stay, suspension or postponement, the court has a duty to impose conditions with respect to the payment by the tenant of arrears of rent, if any, and rent or payments in respect of occupation after the termination of the tenancy, mesne profits, unless the court considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable.  The court has a discretion to impose such other conditions as it thinks fit.

If the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession, s. 85(4) of the Act.

In Thompson’s Case, where the order for possession was in identical terms to the order made in the present case, this court held that the secure tenancy continued after the making of the order of possession so long as the conditions imposed by the court were met by the tenant.  At page 1428G Russell LJ said:

"It is to be observed that on the face of the order it does not purport to terminate the tenancy.  The tenancy, in my judgment, plainly continues and is recognised by the order as continuing.  The judgment for possession, however, is suspended so long as the current rent is paid in addition to the arrears.  If that were not the true interpretation of the order, then plainly the words “the current rent” to which I have adverted, would not appear as they do."

Russell LJ went on to record that Mrs Tompson had not complied with the terms of the order, none of the arrears were paid by her; the local authority had indicated to the officials in the office of the County Court that the Court Order had not been complied with and in those circumstances a warrant for possession should be issued.  It was issued.  This court held that the secure tenancy came to an end when Mrs Tompson first breached the terms on which the possession order had been suspended or postponed.

Once that point is reached, and the former secure tenant remains in occupation, he or she becomes a tolerated trespasser, Burrows -v- Brent London Borough Council [1996] 1 WLR 1448 HL.  That will be so whether the local authority decides to leave the former secure tenant in occupation or whether, as in this case, a warrant for possession has been issued by the office of the County court at the local authority’s request but is then suspended on terms.

In the present case it was common ground that the appellant had been a tolerated trespasser at 40, Chepstow Way from the 27th November 1992 until the 30th April 1999 when she and her children were re-housed in another property.  There was a minor difference between the two sides as to whether the appellant had been a tolerated trespasser from July 1992 until the 27th November 1992; the appellant’s counsel conceding that she had been a tolerated trespasser throughout that period, and the respondent’s counsel maintaining that on the 25th November 1992 when the District Judge made his order suspending the warrant for execution of the possession order to the 27th November 1992 when the appellant failed to pay the current rent and £2.15 off the arrears, the secure tenancy had been revived by the District Judge’s order.  This difference is of no practical significance in this appeal and for that reason I content myself with expressing the view that the concession by the appellant’s counsel was correct.  The District Judge’s order suspended the warrant for possession but did not affect the order for possession which had terminated the secure tenancy.  This as I read his speech in Burrows -v- Brent London Borough District Council [above] is the view of Lord Jauncey, see page 1457 F.

It is necessary to examine the status of a tolerated trespasser.  The phrase “tolerated trespasser” is first found in the speech of Lord Browne-Wilkinson in Burrows [above] at page 1455A, a phrase accepted by Lord Jauncey in the same case as an apt description, see page 1458 A.  Lord Browne-Wilkinson said:

"In my judgment little guidance is to be obtained from the cases where a tenant holds over after the termination of an ordinary tenancy where there is no possibility that the expired tenancy can revive.  The position in relation to secure tenancies is sui generis.  In my judgement, the agreement can and should take effect in the way the parties intend, i.e. it is an agreement by the landlords, that, upon the tenant complying with the agreed conditions, the landlords will forebear from executing the order i.e. from taking the step which would finally put an end to the tenant’s right to apply to the court for an order reviving the tenancy.  There is no need to impute to the parties an intention to create a new tenancy or licence: the retention of possession and the payment of rent relate to occupation under the old tenancy which is in limbo but which may be revived.  In these circumstances I think it is fair to characterise the former tenant as a trespasser whom the landlord has agreed not to evict - a “tolerated trespasser” - pending either the revival of the old tenancy or the breach of the agreed conditions."

In the Burrows case the tenancy was created on the 6th August 1984.  There were arrears of rent.  On the 29th January 1992 the local authority obtained a fourteen day final order for possession effective from the 12th February that year.  On the 5th February 1992 the council came to an arrangement with Mrs Burrows that she would not be evicted provided she complied with defined conditions.  She failed to comply with the arrangement.  In May 1994 the council issued a warrant for possession informing Mrs Burrows that she would be evicted on the 8th June 1994.  She was evicted on that day.  Her application to the County Court to have the bailiff’s warrant and the possession order set aside failed.  Mrs Burrows then brought an action seeking a declaration that she remained a tenant and a mandatory injunction to be allowed back into the premises and damages for unlawful eviction.  The County Court judge found in her favour on the ground that the effect of the arrangement of the 5th February 1992 had been to create a new tenancy by operation of law.  The Court of Appeal dismissed the council’s appeal.  The House of Lords reversed both the County Court judge and the Court of Appeal holding that the arrangement of the 5th February 1992 did not create a new tenancy or licence in Mrs Burrows’ favour.

There are reasons of policy why a former secure tenant who has been allowed to remain in occupation of premises upon terms, whether that arrangement is in the form of an order made by the court or an agreement between the former secure tenant and the local authority does not create a new tenancy or a licence.  Were a tenancy or a licence to be created, then as the conditions described in sections 80 and 81 of the 1985 Act, namely the landlord condition and the tenant condition would be satisfied, the tenancy or licence would become a secure tenancy or licence under Part IV of the Act and the local authority would be obliged to go through the procedures laid down in Part IV of the Act including obtaining a fresh order for possession from the County Court.  Further the former tenant, if evicted from the premises rather than allowed to remain on terms, would become homeless so that the local authority might find itself with the statutory obligation to house the former tenant.  

As a tolerated trespasser the former tenant enjoys none of the rights of a tenant.  The landlord cannot be required to repair the premises, nor does the former tenant have any rights under the defective Premises Act, 1972.  The landlord has no right to evict the tolerated trespasser for any breach of the covenants which had been contained in the secure tenancy agreement.  The tolerated trespasser could only be evicted for breach of the conditions on which he or she was being allowed to remain in the premises, see per Lord Browne-Wilkinson in Burrows at page 1452 G.  On the other hand, the tolerated trespasser is in occupation with the assent of the landlord and is under an obligation to make payments in respect of occupation.  Those payments are normally the payments that would have had to be paid by the tolerated trespasser had she remained a secure tenant together with additional sums off the arrears.  The tolerated trespasser may be able to revive the secure tenancy by persuading the County Court Judge to discharge or rescind the original order for possession or to make an order varying the date for the giving of possession, the original tenancy being revived under s. 85(4) of the Act.

An example of a secure tenancy being revived is to be found in the case of Lambeth London Borough Council -v- Rogers [2000] 03 EG 127.  In that case R had become a secure tenant of premises owned by the council in February 1992.  In October 1992 the county court gave judgment for arrears of rent against R and made a suspended order for possession upon terms.  R failed to comply with the terms, although she continued to make erratic payments.  In September 1996 R commenced proceedings against the council for breaches of express repairing covenants and of terms implied by s. 11 of the Landlord and Tenant Act, 1985.  R claimed damages and an order for specific performance of the necessary repairs.  In September 1997 R applied for an order under s. 85 of the Housing Act, 1985 that the possession order made in October 1992 be rescinded or be discharged or that the date of possession be postponed.  In November 1998, following an agreement between R and the council in April of that year under which R would pay off the rent arrears, the County Court Judge made a  unconditional order under s. 85(2) (b) of the 1985 Act discharging the 1992 possession order and gave judgment for R in the sum of £4,642.82.  The council appealed.  This court dismissed the appeal holding that after October 1992 R had been in occupation of the premises as a tolerated trespasser; the council’s repairing liabilities had ended with the secure tenancy.  During the “limbo period” the respondent could not have enforced the repairing covenants.  In late 1996 the council could have applied to strike out the respondent’s claim for breach of these covenants.  The April 1998 agreement did not create a new tenancy.  The county court judge had correctly exercised his discretion under s. 85 of the 1985 Act in discharging the possession order.  The effect of the discharge of the possession order under s. 85(2)(b) was that the council’s repairing obligations were retrospectively revived.

The rent account details in the present case show that in April of each year between 1992 and 1998 the amount of the “standard debit” for each week was increased and in addition the sums paid directly to the council by Social Security off the arrears, also increased.  The amount of the arrears outstanding at the date the order for possession was made, as has already been indicated, had increased by a mere £7.14 by the date that the appellant commenced proceedings.  It follows that between the making of the order of possession and the date upon which the appellant commenced proceedings, a period of 5 years and four months, the respondents had received virtually the whole of the rent to which they would have been entitled had the appellant remained a secure tenant.  Even if the respondents had not actually received those payments they would have had a right to sue the appellant for those sums or so much of those sums that had not been paid.

Mr Morgan submitted that despite the ending (he would say more accurately suspension) of the secure tenancy, the position of a tolerated trespasser is very different from that of a trespasser.  In any event a trespasser may be able to sue in nuisance, see Foster -v- Warblington Urban District Council [1906] 1 KB 648 CA, that decision being approved by the House of Lords in Hunter -v- Canary Wharf Ltd [1997] AC 655.  Mr Morgan argued that it would be inconceivable that Miss Pemberton would not be able to maintain an action in trespass or in nuisance against persons other than the respondents.  He accepted that the respondents would be able to maintain such actions and might well bring such actions on behalf of Miss Pemberton.  However, a local authority landlord might not be concerned to bring claims in nuisance for loss of amenity due to the tortious conduct of the owner or possesor of neighbouring land and, indeed, the local authority landlord might be in difficulty establishing any loss suffered by them as the result of any such conduct.

Mr Barnes for the respondents submitted that the appellant as a tolerated trespasser was not able to bring an action in nuisance either against the respondents, her landlords, or against a third party.  As a trespasser she simply did not have a sufficient interest in the flat.

It was common ground between counsel that for a claimant to have a cause of action in nuisance, the claimant must have a sufficient interest or right in the land to entitle him or her to compensation for wrongful interference by the defendant in the land or in the claimant’s enjoyment of the land.  Equally, it was common ground that the law concerning the right of a person to sue in nuisance is to be found in the speeches of their Lordships in Hunter -v-  Canary Wharf Ltd [1997] AC 655.  In his speech Lord Goff at page 688C accepted Professor Newark’s first thesis on the law of nuisance namely:

"The term “nuisance” is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land."

Lord Goff went on to say at page 688E

"Since the tort of nuisance is a tort directed against the plaintiff’s enjoyment of his rights over land, an action of private nuisance will usually be brought by the person in actual possession of the land affected, either as freeholder or as tenant of the land in question or even as a licensee with exclusive possession of the land ....... it was however established, in Foster -v- Warblington Urban District Council [1906] 1 KB 648, that, since the jus tertii is not a defence to an action of nuisance, a person who is in exclusive possession of land may sue even although he cannot prove title to it."

His Lordship went on to consider the case of Malone -v- Laskey [1907] 2 KB 141 in which the plaintiff was the wife of a company manager who lived in a company house as licensee of the company.  She was injured when a bracket fell from a wall in the house said to have been caused by the vibrations of an engine operating on the defendant’s adjoining premises.  Her claim in nuisance failed as did her claim in negligence.  Lord Goff, as did other members of the House of Lords in Hunter’s case, for example see per Lord Hoffmann at page 704A, considered that the decision in that case on the question of nuisance was sound but observed that the plaintiff’s claim in negligence would have succeeded today.

In support of his submission that the appellant has no right to sue the respondents in nuisance, Mr Barnes made four points.  The first was that a licensee such as the wife and children of a tenant do not have this right because they do not have exclusive possession of the premises, see Malone -v- Laskey [above].  Second, the tolerated trespasser has no contractual relationship with the owner of the property and as a consequence has no contractual right or statutory right against the owner of the property in respect of the property.  The owner of the property does not have to rely on a defence of jus tertii, but can rely on their own superior right.  Third, the policy or reasons which underlie the creation of the sui generis status of a tolerated trespasser are also reasons why the tolerated trespasser should not have a right of action in nuisance against a local authority landlord.  Such an action would be an indirect way of enforcing the covenant to repair or the covenant of quite enjoyment in the secure tenancy which has been terminated by the order for possession.  Local authorities would be unlikely to come to accommodations with persons finding themselves in difficulties in keeping up with their rent if such persons could still impose upon the local authority the burden of the covenant to repair or the covenant for quiet enjoyment.

The fourth point is based on a passage in the speech of Lord Hoffmann in the Hunter case at page 703 C of the report.  Lord Hoffmann cites a passage from the speech of Lord Wright in Sedleigh-Denfield -v- O’Callaghan [1940] AC 880 at 902-903 which ends with the sentence:

"With possibly certain anomalous exceptions, not here material, possession or occupation is still the test” (of the existence of a cause of action in nuisance).

Lord Hoffmann went on:

"In speaking of “possession or occupation” Lord Wright was in my view intending to refer both to a right to possession based upon (or derived through) title and to de facto occupation.  In each case the person in possession is entitled to sue in trespass and in nuisance.  An example of an action for nuisance by a de facto possessor is Foster -v- Warblington Urban District Council [1906] 1 KB 648 in which the plaintiff sued the council for discharging sewage so as to pollute his oyster ponds on the foreshore.  He had some difficulty in proving any title to the soil but Vaughan Williams LJ said, at pp. 659-660: 

“But, even if title could not be proved, in my judgment there has been such an occupation of these beds for such a length of time - not that the length of time is really material for this purpose - as would entitle the plaintiff as against the defendants, who have no interest in the foreshore, to sustain this action for the injury which is alleged has been done by the sewage to his oysters so kept in those beds.”  

Thus even a possession which is wrongful against the true owner can found an action for trespass or nuisance against someone else : Asher -v- Whitlock [1865] LR 1 QB 1.  In each case, however, the plaintiff (or joint plaintiffs) must be enjoying or asserting exclusive possession of the land: see per Blackburn J in Allan -v- Liverpool Overseers [1874] LR 9 QB 180.  Exclusive possession distinguishes an occupier who may in due course acquire title under the Limitation Act 1980 from a mere trespasser.  It distinguishes a tenant holding a leasehold estate from a mere licensee.  Exclusive possession de jure or de facto, now or in the future, is the bedrock of English land law."

Based on this passage in Lord Hoffmann’s speech, Mr Barnes submits that for a trespasser to have exclusive occupation of land so as to be able to sue in nuisance, the trespasser’s occupation of the land must be such that after the passing of twelve years, that possession will defeat the title of the true owner.  In other words, the occupation must be with the intention of possessing the land to the exclusion of others and possessing it in a way which is adverse to the rights of the true owner.  Mr Barnes submitted that Miss Pemberton did not occupy her flat in that way; her occupation, being with the assent of the respondents, could never amount to adverse possession.

In my judgment the first point made by Mr Barnes is of no substance, because there is a clear difference between the position of the spouse or children of a tenant and that of a tolerated trespasser.  The tolerated trespasser has, whilst remaining in the premises the exclusive right to occupy the premises.  Further Mr Barnes’s second point has little weight; the order for possession although ending the contractual relationship does not end the tolerated trespasser’s actual occupation of the property nor does it end the tolerated trespasser’s obligation to pay for that occupation of that property.  The policy considerations which led to the evolving of the special status of tolerated trespasser are hardly good reasons for depriving the tolerated trespasser of all rights and remedies in trespass and nuisance.  The local authority will not have an obligation to repair the premises, but there is no reason why the local authority should not have the obligations to so conduct itself in relation to the remainder of the premises so as not to create a nuisance, that is to say so as not to interfere in a way which is tortious in the tolerated trespasser’s occupation and use of the premises.

Mr Morgan submitted that to permit a local authority landlord to act in this way would probably represent a breach of Article 8 of the European Convention of human Rights, “the right to respect for private and family life”.  Mr Morgan drew the attention of this court to decisions of the European Court of Human Rights to the effect that after the making and coming into operation of the order for possession, the flat would still have remained the appellant’s home.  Mr Morgan drew our attention to further decisions of that court that a failure to respect a person’s private and family life and home can include noise pollution from aircraft, see Rayner -v- United Kingdom [1986] 47 DR 5, pollution from a waste treatment plant, Lopez Ostra -v- Spain [1994] 20 EHRR 277 and pollution from a chemical factory,  see  Guerra -v- Italy [1998] 26 EHRR 357.  Moreover in the last two cases, the European Court required the public authority not merely to avoid interference with the exercise of the claimant’s rights under Article 8, but to take positive steps to ensure effective respect for the claimant’s rights.

It is Mr Barnes’s fourth point, which speaking for myself, has caused me the greatest difficulty and hesitation.  In the end I have been persuaded by the reply made by Mr Morgan to Mr Barnes’s fourth point.  Mr Morgan began by submitting that Lord Hoffmann in that passage in his speech in Hunter’s case was not saying that the possession required of a trespasser for that trespasser to be able to sue himself in trespass or nuisance has to be exactly the same as adverse possession which will lead in due course to the trespasser acquiring title against the true owner under the Limitation Act, 1980.  Lord Hoffmann was distinguishing between the type of occupation or possession which may be intermittent or alternatively not exclusive, such as that of a trespasser who takes a short cut across another’s land and the type of possession or occupation of the whole premises with the requisite intention to possess the whole of the premises albeit that such possession or occupation will not be adverse to the owner of the premises.  Finally, Lord Hoffmann was considering possession or occupation “which was wrongful against the true owner” and which could found an action in trespass or nuisance against someone other than the true owner. Lord Hoffmann was not considering the possession or occupation of the tolerated trespasser which is not wrongful against the true owner.  Possession or occupation by the tolerated trespasser may be precarious, but it is not wrongful and it is exclusive.

This distinction can be illustrated by looking of the case of Allan and Others -v- The Overseers of Liverpool [1874] LR 9 QB 180.  Here the question was who was in rateable occupation of certain berths and sheds at Liverpool Docks.  Was it the appellants, a steamship company who had contractual rights to use those berths and sheds, or was it the Mersey Docks and Harbour Board.  At the outset of his judgment, Blackburn J said:

"The poor rate is a rate imposed by the statute on the occupier, and that occupier must be the exclusive occupier, a person who, if there was a trespass committed on the premises, would be the person to bring an action of trespass for it.  A lodger in a house, although he has the exclusive use of rooms in the house, in the sense that nobody else is to be there, and though his goods are stowed there, yet he is not in exclusive occupation in that sense, because the landlord is there for the purpose of being able, as landlords commonly do in the case of lodgings, to have his own servants to look after the house and the furniture and has retained to himself the occupation, though he has agreed to give the exclusive enjoyment of the occupation to the lodger.  Such a lodger could not bring ejectment or trespass quare clausum fregit, the maintenance of the action depending on the possession and he is not rateable."

In the present case the appellant as a tolerated trespasser still retains the exclusive occupation and possession of her flat.  The respondents cannot turn her out.  It is correct that at anytime they may seek to enforce their order for possession and, if they have it, execute a warrant for possession by instructing the bailiffs to carry out the warrant.  Both those courses would have been subject to the appellant being able to persuade the court to take one of the steps open to the court under s. 85 of the 1985 Act.  In those circumstances, in my judgment, the tolerated trespasser does have a sufficient interest in the premises to sustain an action in nuisance.

For these reasons I would allow this appeal and send this case back to the County Court to be heard both with regard to the allegations of nuisance and negligence.

Lord Justice Clarke:

I agree that this appeal should be allowed and add a few words of my own partly because we are disagreeing with the judge and partly because the tolerated trespasser is a recent, somewhat bizarre, addition to the dramatis personae of the law.  As Roch LJ has explained, by definition a tolerated trespasser was at one time a secure tenant under Part IV of the Housing Act 1985.  While the tenancy lasted Miss Pemberton was entitled to remain in exclusive possession and occupation of the flat as her home.  Accordingly, it is not in dispute that, so long as she remained a secure tenant, she could maintain an action in nuisance or trespass against her landlord (“the council”).

The question is whether she can still maintain an action in nuisance and trespass against the council in respect of the period after she became a tolerated trespasser.  That depends upon the nature of the right of a tolerated trespasser to continue to occupy the flat.  There is I think no doubt that she was not a mere trespasser but had rights exercisable against the council.  That she had such rights appears from the speech of Lord Browne-Wilkinson in Burrows v Brent London Borough Council [1996] 1 WLR 1448.

In the passage immediately following that quoted by Roch LJ, Lord Browne-Wilkinson said at page 1455 D-F: 

"Once the effect of section 85 is appreciated, the absurdities which led the Court of Appeal not to accept that Miss Burrows could be a tolerated trespasser disappear.  Technically the old secure tenancy is, during the limbo period, no longer in existence and therefore neither the repairing covenants in the tenancy nor the Defective Premises Act 1972 apply.  But the tenant can at any time apply to the court for an order varying the date on which possession is to be given and thereby retrospectively revive the old secure tenancy, together with its covenants.  If the tenant has complied with the agreed conditions, there can be little doubt that the court would make the required order.  Moreover, the tenant will not be a homeless person within section 58(2) of the Act of 1985 because the tenant will be occupying the residence by virtue of a “rule of law giving him the right to remain in occupation:” see section 58(2)(c).  If the tenant were in breach of any of the covenants in the old secure tenancy, Brent could apply to vary the order so as retrospectively to revive the old tenancy together with its covenants.

Lord Browne-Wilkinson there refers to a tolerated trespasser having a right to remain in occupation of the flat by reason of a rule of law.  There can I think be no doubt that that right is exercisable against the council, as indeed against a third party.  

It follows that a tolerated trespasser is not a mere trespasser but continues to have a right of occupation.  The nature of the de facto occupation is the same as before.  Thus Miss Pemberton continued to have exclusive occupation of the flat when she became a tolerated trespasser in just the same way as she had while she was a secure tenant.  It is true that neither the tolerated trespasser nor the council has the contractual rights or obligations which they had under the secure tenancy, but it is of interest to note (as Roch LJ has pointed out) that in its records in this case the council continued to treat Miss Pemberton in the same way as before.  It continued to charge her “rent” on the same basis as before and increased it just as it would have done if the tenancy had continued.  I should perhaps add that it is not necessary to consider in this case the true nature of the council’s right to charge a tolerated trespasser for continued occupation of the flat, but there can be little doubt that some payment must be made.  

The tolerated trespasser has a right of occupation which can be determined by execution of a warrant for possession but, until that happens, the tolerated trespasser is in de facto occupation in the same way as before and can maintain that right against the council.  In these circumstances the tolerated trespasser should in my opinion in principle be entitled to maintain an action for trespass or nuisance both against a third party and against the council.  

For example, if the council or another tenant causes such a noise in an adjoining flat that it would amount to a nuisance, the tolerated trespasser should be able to seek an injunction against the council or the tenant as the case may be to stop the noise.  In both cases there would be an interference with the tolerated trespasser’s enjoyment of his or her right over land, which, as Lord Goff pointed out in Hunter v Canary Wharf Ltd [1997] AC 655 at 688E, is what the tort of nuisance is designed to protect.  Also in both cases there would, as I see it, be an infringement of the right to respect for private and family life which is protected by Article 8 of the European Convention of Human Rights, which I regard as a relevant factor in determining whether a tolerated trespasser has a sufficient right to sue the council in trespass or nuisance.  

There are two other considerations which seem to me to lead to the same conclusion.  The first is that Mr Barnes correctly recognised that, but for the statutory scheme, if arrangements were reached between a private landlord and a private tenant along the lines of those reached in Burrows, the court would readily infer a relationship of landlord and tenant.  The House of Lords held that no such inference should be drawn in the case of a secure tenancy, in part because of the policy considerations referred to by Roch LJ.  Those policy considerations support the conclusion that the tolerated trespasser is not a tenant but is sui generis, but they do not support the conclusion that the tolerated trespasser should not be able to protect his or her home by an action in trespass or nuisance so long as he or she continues to occupy it with the consent or (as Mr Barnes put it) the assent of the council.

The second consideration is this.  One of the reasons which led the House of Lords to approach the problem as it did was its view that a secure tenancy can be revived retrospectively under section 85 of the Housing Act 1985, as in fact occurred in Lambeth London Borough Council v Rogers [2000] 03 EG 127.  As Simon Brown LJ put it at page 132 in that case, a section 85(2)(b) order is fully retrospective in effect.  Thus there is no doubt that, if such an order were made, the tolerated trespasser would be entitled to sue for both nuisance and trespass because the tolerated trespasser would retrospectively be treated as a secure tenant.  However, the de facto occupation of the tolerated trespasser remains the same throughout.  It seems to me that it would be strange if a tolerated trespasser of a council flat has a sufficient right to maintain trespass or nuisance against the council while initially a secure tenant but not while a tolerated trespasser (unless the secure tenancy is later retrospectively revived), in circumstances in which the tolerated trespasser remains in de facto occupation with the assent of the landlord throughout.  

For these reasons, in addition to those given by both Roch LJ and Sir Christopher Slade (whose judgments I have seen in draft), I would hold that a tolerated trespasser, including Miss Pemberton, has a sufficient right of occupation exercisable against the council to enable him or her to bring an action for nuisance or trespass against the council.  I would therefore allow the appeal.

Sir Christopher Slade:

I entirely agree with the judgment of Roch LJ and wish to add only a few observations of my own.

In Burrows -v- Brent London Borough Council [1996] 1 WLR 1448, the landlords and tenant had entered into an express agreement that, upon the tenant complying with certain specified conditions, the landlords would forbear from executing the possession order.  It was in those circumstances that Lord Browne-Wilkinson (at page 1455), having described the position in regard to secure tenancies as “sui generis”, went on to say:

"...... I think it is fair to characterise the former tenant as a trespasser whom the landlord has agreed not to evict - a “tolerated trespasser” - pending either the revival of the old tenancy or the breach of the agreed conditions."

In the present case, there was never any express agreement between the local authority and Miss Pemberton that the possession order would not be enforced by the local authority.  Nevertheless, in my opinion correctly, it has not been argued that this makes any material difference.  As Lord Jauncey pointed out (ibid at p. 1457-1458):

"During the period between the termination of the secure tenancy and either its revival or the execution of the order for possession, the occupation of the former secure tenant derives not from any new lease but from the provisions of the Act which cast him in the role of what my noble and learned friend aptly describes as “a tolerated trespasser”."

In other words, during the period between the termination of the secure tenancy and either its revival or the execution of the order for possession (which I will call the “limbo period”), the occupation of the tenant derives not so much from any agreement between the parties as from the Housing Act 1985 itself.  The same line of thought is to be found in Lord Browne-Wilkinson’s judgment at p. 1455E, where he explains that, during the limbo period, the tenant will not be a homeless person within section 58(2) of the Act of 1985,

"because the tenant will be occupying the residence by virtue of any “rule of law giving him the right to remain in occupation”: see section 58(2)(c)."

The “tolerated trespasser” thus constitutes a peculiar category entirely sui generis.  The inclusion of the word “trespasser” in the description may possibly give rise to misunderstandings since, read by itself, it is ordinarily an inappropriate description of anyone who has the right to assert occupation of the relevant property as against the true owner.  Nevertheless, in agreement with Roch LJ, I think that the speeches in the Burrows case make it fairly clear that, during the limbo period, the former tenant does retain the right to exclusive possession of the property even as against the landlords; he has the statutory right to remain there until they take steps to enforce the possession order by obtaining a warrant for possession and instructing the bailiffs to act on it.

Since the “tolerated trespasser” has the right to exclusive possession of the relevant property during the “limbo period”, there is in my judgment nothing to prevent his pursuing a cause of action in nuisance against his landlords or anyone else during that period, in accordance with the principles laid down in Hunter -v- Canary Wharf Ltd [1997] AC 655, provided that he can establish the other essential ingredients of the tort.  No authority has been cited to us which precludes us from so holding, with the possible exception of the passage from Lord Hoffmann’s speech in that case already cited by Roch LJ.

However, I think that in that passage Lord Hoffmann was doing no more than stressing that exclusive possession is in all cases one essential feature of a cause of action in nuisance.  Thus, on the one hand, a trespasser who is in occupation of property and enjoys exclusive possession of it, such as to give him a potential right to acquire title under the Limitation Act, 1980, may have the right to sue in nuisance third parties who interfere with his enjoyment of the land; on the other hand, a “mere trespasser” (for example a casual intruder, or even a temporary occupier who enjoys no exclusive possession) can have no such right.  Lord Hoffmann was clearly not directing his mind to the rights of a person having the peculiar status of a “tolerated trespasser” to sue in nuisance - a status quite different in law from that of the ordinary trespasser.  The relevant passage from his speech cannot, in my opinion be read as constituting authority on the novel question whether a “tolerated trespasser” can invoke this cause of action against the landlords or anyone else.  In my judgment he can.

For these reasons and the other reasons given by Roch LJ, I would concur in allowing this appeal and in the order which he proposes.
Order: Appeal allowed; the matter to be remitted to Lambeth country court for trail; Respondent to pay the Appellants costs of the appeal and in the court below, all such costs to be the subject of a detailed assessment if not agreed; Legal Aid Taxation of the Appellants costs of the appeal and in the court below.
(Order does not form part the approved judgment)