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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Timbo v London Borough Of Lambeth [2019] EWHC 1396 (Ch) (03 May 2019) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2019/1396.html Cite as: [2019] EWHC 1396 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
THE PROPERTY, TRUSTS AND PROBATE LIST
Rolls Building 7 Rolls Buildings Fetter Lane London EC4A 1NL |
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B e f o r e :
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MARTHA TIMBO | Claimant | |
- and - | ||
THE MAYOR AND BURGESS OF THE | ||
LONDON BOROUGH OF LAMBETH | Defendant |
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Lower Ground, 18-22 Furnival Street, London, EC4A 1JS
Tel No: 020 7404 1400
Web: www.epiqglobal.com/en-gb/ Email: [email protected]
(Official Shorthand Writers to the Court)
RICHARD GRANBY (instructed by Judge & Priestley LLP) appeared on behalf of the
Defendants
Hearing dates: 13 March 2019 and 3 May 2019
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Crown Copyright ©
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MASTER SHUMAN:
THE FACTUAL BACKGROUND
"1.16 Upon receipt of the order and due to the claimant's expectation of amicable resolution with the defendant respondent without reverting to court, the claimant attempted to file a notice of discontinuance. This was done by the incorrect form and therefore was ineffective.
THE LEASE
"If said rents or any part thereof shall be unpaid for 21 days next after becoming payable, whether the same shall have been formally demanded or not, or if the tenant shall not perform or observe all the covenants and provisions hereby on the part of the tenant, to be performed or observed then and in any of the cases thenceforth, it shall be lawful for the council or any person or persons duly authorised by the council on their behalf to re-enter into or upon the flat or any parts thereof to repossess and enjoy the same as if this lease had not been made but without any prejudice to any right of action or remedy of the council in respect of any antecedent breach of any of the covenants by the tenant."
THE CLAIM FOR RELIEF
"In all cases between landlord and tenant, as often as it shall happen that one half year's rent shall be in arrear, and the landlord or lessor, to whom the same is due, hath right by law to re-enter for the non-payment thereof, such landlord or lessor shall and may, without any formal demand or re-entry, serve a writ in ejectment for the recovery of the demised premises, which service shall stand in the place and stead of a demand and re-entry..."
It goes on to say what happens to the lease:
"... shall permit and suffer judgment to be had and recovered on such trial in ejectment, and execution to be executed thereon, [and importantly] without paying the rent and arrears, together with full costs, and without proceeding for relief in equity within six months after such execution executed, then and in such case the said lessee, his assignee, and all other persons claiming and deriving under the said lease, shall be barred and foreclosed from all relief or remedy in law or equity..."
"While the High Court's equitable jurisdiction is not strictly restricted by the restriction on granting relief to applications made within 6 months of the order for possession contained in section 210 of the Common Law Procedure Act 1852, the equitable jurisdiction must be exercised with due regard to that restriction."
"Would the position have been any different in the High Court? The High Court inherited the ancient jurisdiction of the Court of Chancery which claimed power to relieve against forfeiture without limit of time. In Billson v Residential Apartments Ltd [1992] 1 AC 494, 511 the point that arose for decision was whether the court had any power to grant relief against forfeiture under section 146 of the Law of Property Act 1925 once the landlord had re-entered by taking physical possession. The landlord had in fact only been in possession for a few hours; and the breach relied on was not a failure to pay rent. So the court's equitable jurisdiction to grant relief for non-payment of rent was not in issue."
"The statute[1] fixes a period of six months only from recovery in ejectment within which an application for relief may be made, and it is said that the whole evil which the Act was passed to remove would be re-introduced if it were to be held that the jurisdiction to give relief were to be applied in a case where peaceable possession had been taken. Upon that two observations may be made: first, that if the landlord desires to limit the time within which the tenant can apply for relief, he can avail himself of legal process to recover possession and so get the benefit of the statute; and, secondly, that it does not follow that a Court of Equity would now grant relief at any distance of time from the happening of the event which gave rise to it. It appears to me that, inasmuch as the inconvenience of so doing has been recognised by the legislature, and a time has been fixed after which, in a case of ejectment, no proceedings for relief can be taken, a similar period might well be fixed, by analogy, within which an application for general relief in Equity must be made. A Court of Equity might possibly say that the action for relief must be brought within six months from the resumption of possession by the lessor."
"In Thatcher v CH Pearce & Sons Ltd [1968] 1 WLR 748 the forfeiture by peaceable re-entry took place on 4 July 1964 and the application for relief was made on 8 January 1965: 6 months and 4 days later. Sir Jocelyn Simon P rightly described the final sentence I have quoted from Howard v Fanshawe as "guarded wording" and went on to say:
'As I understand the old equitable doctrine, the court would not give relief in respect of stale claims. Furthermore, if there were a statute of limitation applying at common law, equity followed the law and applied the statute to strictly analogous proceedings in Chancery. But there is no question in the instant case of a Limitation Act applying to the present situation; and it seems to me to be contrary to the whole spirit of equity to boggle at a matter of days, which is all that we are concerned with here, when justice indicates relief.' "