Wednesday Law Report: County court had to make possession order

20 January 1999

Manchester City Council v Cochrane and another

Court of Appeal (Lord Justice Auld, Lord Justice Judge and Sir John Knox) 21 December 1998

WHERE A local council commenced possession proceedings in the county court under section 127 of the Housing Act 1996 in respect of a dwelling house subject to an intoductory tenancy, once the court had ascertained that the requirements regarding the notice of proceedings in section 128 of the Act had been satisfied, it was positively required to make a possession order.

The Court of Appeal allowed the appeal of the council against the decision that the county court had jurisdiction to entertain a defence in possession proceedings brought under section 127 of the Housing Act 1996.

On 15 April 1997 the council granted a joint weekly tenancy to the defendants, which was expressed to be an introduc-tory tenancy within the terms of the Housing Act 1996.

Section 127 of the Act provided:

(1) The landlord may only bring an introductory tenancy to an end by obtaining an order of the court for possession of the dwelling house.

(2) The court shall make such an order unless the provisions of section 128 apply.

Section 128 provided for service of a notice of proceedings. Section 129 provided for a review by the landlord, on request, of its decision to seek a possession order under section 127.

Possession proceedings against the defendants were commenced on 9 April 1998 for breaches of the tenancy agreement, the council having already conducted a review under section 129. The council objected to the jurisdiction of the county court to hear the defence the defendants wished to advance.

The district judge, taking the view that the county court did have jurisdiction to hear and determine the proposed defences, gave directions for, inter alia, the filing of the defence. The council's appeal was dismissed by the judge, and it appealed to the Court of Appeal.

Andrew Arden QC and Jonathan Manning (Manchester City Attorney) for the council; Peter E. Buckley (Clifford Chapman & Co, Manchester) for the defendants.

Sir John Knox said that the private law right of the tenant under an introductory tenancy was no more than a right to possession until an order for possession in favour of the landlord was made by the court, and such an order had to be made once the requirements of section 128 regarding the notice of proceedings had been complied with.

By enacting section 127(2) in mandatory terms, Parliament had clearly imposed a statutory limitation on the right of an introductory tenant to retain possession. There was a remarkable constriction of the court's powers in that under section 128(1), the court was prohibited from even entertaining possession proceedings unless the various requirements regarding the notice of proceedings contained in section 128 were satisfied, whilst if those requirements were satisfied, the court was positively required to make a possession order under section 127(2). The function of the court was reduced to that of ascertaining that it had jurisdiction to entertain the proceedings.

It was accepted by the council that its duty to comply with section 129(2) was subject to judicial review. It was equally clear that that duty was a public law duty and that the correlative right in the tenants to have it lawfully performed had to be a public law right.

The county court had at least to have jurisdiction to grant an adjournment if satisfied that there was a real chance of leave to apply for judicial review being granted. It was, however, one thing to grant an adjournment to permit the exercise of relevant rights in another jurisdiction, and quite another thing for the court itself to embark upon an investigation of the very issues which that other jurisdiction would have power to rule upon.

It would be a clear contravention of section 127(2) for the county court to entertain a defence based on a denial of allegations of breaches of a tenancy agreement relied upon in a notice under section 128.