Appah v Parncliffe Investments Ltd

[1964] 1 All ER 838

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(Judgment by: Davies LJ)

Between: Appah
And: Parncliffe Investments Ltd

Court:

Judges: Harman LJ
Pearson LJ

Davies LJ

Subject References:
Licence
Licence to occupy premises
Furnished room
Separate rooms provided in house formerly a hotel, for daily or weekly charges
Terms including daily cleaning of room, but no meals
Use of bathroom, etc in common with others
Whether occupant of room a tenant or a licensee
Door of room having mortice lock and insecure Yale lock
Failure of proprietor to provide occupant with key to mortice lock
Occupant's room broken into and her goods stolen
Whether proprietor negligent

Case References:
Allan v Liverpool Overseers, Inman v West Derby Union Assessment Committee and Kirkdale Overseers - (1874), LR 9 QB 180; 43 LJMC 69; 30 LT 93; 38 JP 261; 30 Digest (Repl) 532, 1694

Hearing date: 7 February 1964
Judgment date: 10 February 1964

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Judgment by:
Davies LJ

DAVIES LJ delivered the first judgment at the request of Harman LJ: In October, 1962, the plaintiff was a resident in an establishment owned by the defendants called the Emperor's Gate Hotel, at 38, Emperor's Gate, Kensington. During, as it appears, the daytime of 10 October 1962, her room in that house was broken into by some unauthorised person and all her belongings, viz, her clothing in three suit cases and, I gather, a fourth case containing gramophone records, were stolen. As a result of that she brought this action against the defendants, claiming damages for, as she alleged, their negligence in failing to take proper measures to look after, and to see that no unauthorised person could get into, her room.

Three points arose. The first was: what was the nature of the plaintiff's occupation of that room? Her case as pleaded was that she was a boarder in a boarding house; alternatively it was put that she was a lodger, or perhaps the most compendious description of her contention as to her status was that she was a licensee for payment. It is conceded and has been conceded throughout on behalf of the defendants that, if that was her status, in the circumstances of this case they were under an obligation to use reasonable care to see that she and her property suffered no loss. The defendants' contention, however, was that she was a tenant in their house; and if that be so, then in turn it is conceded on behalf of the plaintiff that she has no remedy, there being no duty on a landlord to exercise care to look after his tenant's property in circumstances such as the present. That was the first point; and that point was decided in favour of the defendants by the learned judge. He went on to consider the next point on the hypothesis that his view on the first point was wrong and that the lady had a right to look to the defendants for reasonable care in taking precautions for the safety of her goods. The second point was: had the plaintiff proved that the defendants were negligent? The judge found against the plaintiff again on that point. The third point was the amount of damages. That has not been discussed in this court at all, as it is agreed by both parties that, if the plaintiff is entitled to succeed, the sum which was provisionally assessed by the learned judge, namely, £360, is the proper sum for the plaintiff to recover.

The most convenient thing for me to do is to give a short outline of the history of the matter and then to deal with the learned judge's findings of fact on the question what was the nature of the plaintiff's occupation of the premises. This house had, it appears, once upon a time been a hotel, but, from the evidence of the plaintiff and indeed from the evidence of everybody else, it had ceased to be a hotel properly so called. There was not any suggestion that it was a hotel. The house was divided up into seventeen rooms, each of them with its own Yale lock and key, where people could reside on payment of either 15s a day or £5 a week. No meals of any sort or kind were provided; but service, in the sense of daily cleaning and, I gather, making of beds and the weekly supply of fresh linen, was provided by the defendants in consideration of the payments made to them.

The evidence as to the nature of the business carried on by the defendants was contained partly in the evidence of a manager, Mr Geoffreys, who was the manager not of this property only but also of a great many similar properties of the defendants, partly in that of the plaintiff and partly in that of a gentleman called Mr Schumann. He had occupied the same room as that which the plaintiff subsequently occupied. He was there from about February to September, 1962, and had vacated it only shortly before the plaintiff went in. I need not, I think, spend much time on Mr Schumann's evidence, save to deal with one matter which relates to the other part of the case. In March, according to Mr Schumann, or April, according to a detective officer who was called, some unauthorised person obtained admission to Mr Schumann's room by slipping back the Yale lock through a rather wide tap that existed between the door and the door jamb. Mr Schumann seems to have thought that this was done by a key; but the detective's evidence was plainly to be preferred in that behalf. The detective thought the lock in its then state was very poor and suggested to one of the defendants' managers that the front door of the house should be kept shut. That was never done. On that occasion some articles belonging to Mr schumann were stolen, and the coin-box of the gas meter (there being a gas meter in each room) was broken open and the contents were stolen. A mortice lock had already been fitted to the door, but no keys of that had been provided. Mr Schumann, at his own expense, caused two keys to be cut for that mortice lock, and thereafter he relied on the mortice lock. He had no subsequent trouble, and when he vacated the room in September he handed the keys to the defendants.

The plaintiff went into this room on 25 September. On 9 October on coming back from work, she found a representative of the defendants and two other men in her room. Somebody had obtained admission to her room, it would appear by using a key, and the coin-box of the gas meter had again been opened and rifled. On the very next day, 10 October there took place in this room, in circumstances which I shall describe, the theft to which I have referred.

On the issue whether the plaintiff had a tenancy or a licence, the facts are, I think, conveniently set out in two pages of the judgment of the learned county court judge. After referring to some authorities, he said:

"Mr. Geoffreys [the defendants' manager] was not a very satisfactory witness but I accept his evidence thus far at any rate. The building had been run as a hotel and that accounts for its facia 'Emperor's Gate Hotel'. Some years ago the premises were converted into separate rooms; cooking facilities in each numbered room were provided."

When the learned judge says "cooking facilities", he means that there was a gas ring.

"Latch keys were also provided. The pattern repeats itself in London, as in France, namely a hotel converted frequently into self-contained flats. I find that there were in all about eighty self-contained flats under the control of the defendants."

Care, I think, ought to be used with regard to the phrase "self-contained flats"; for although each flat had its door key, as I have stated, and had a gas ring, no flat had a bathroom or a WC; the occupants were common users of the bathroom and the WC somewhere in the building. The learned judge continued:

"The theory was that they were let by those responsible on weekly tenancies as self-contained flats. There was some kind of letting office run by Mr. Ryan [that was at a different house, no. 14]. At No. 38 the resident housekeeper was Mrs. McKenzie. The plaintiff dealt with her, but she left and has not been called. I see no reason why I should not accept the plaintiff's evidence. The plaintiff telephoned and asked for rooms. She thought it was a lodging house or hotel. She asked if breakfast were provided. She was told 'No, not any more'. The same day she called. The door was open. An inmate was coming out who directed her to Mrs. McKenzie. Mrs. McKenzie said the charges were 15s. daily or £5 per week. The plaintiff said she wanted the room from Sept. 25. She was told to leave a deposit-'anything you like'. She left £1. On Sept. 25 she moved in and paid £4 to make it up to £5. The second week she paid £5. After the room was broken into Mrs. McKenzie accepted £3 for the extra days at the end [that was four days over the fortnight]. The plaintiff was told of the terms-'You can do as you please; but do not make too much noise'. She had free hot water and electricity, clean linen weekly and daily cleaning and a meter for gas ring. Now I will try to construct some kind of a balance sheet. In favour of the view that this was a lodging house the plaintiff was offered a room daily at 15s. She was allowed to leave with virtually no notice. [The notice that the plaintiff gave in fact was a few hours, according to her evidence]. Notices were put up 'All visitors to leave by 10.30 p.m.' and there was a written instruction by the front door 'Keep the door shut'. Finally, the name 'Emperor's Gate Hotel' appears on the outside of the building. On the other side, the accommodation appeared to be self-contained [I have already commented on that word]. Keys to both doors [that is, the room door and the front door] were provided together with a separate cooker [again 'cooker' means gas ring] and no meals were provided. Certain facts can safely be ignored in this kind of arrangement. One may dismiss the fact of service, hot water and cleaning of staircase and common parts. It is a feature regularly met with in the letting of many blocks of flats in London. The occupants would be very surprised to learn that because these amenities are provided they rank as lodgers. The practice of this court is to treat such people as tenants although by reason of such services they lose the protection of the Rent Restrictions Acts. These services can therefore be ignored for the present purpose."

Again, with the greatest respect to the learned county court judge, one has, I think, to distinguish between the cleaning and servicing of the parts of the building which are used in common by all the occupants and the service and cleaning that took place in this house, that is to say inside the rooms of the individual occupants.

"The offer of weekly or daily payment is also thrown into the scale but it is not to my mind conclusive. A sum is no less rent because it is payable de die in diem . The notices on the wall in an oral tenancy with no rent book are referable, in my view, to these being some of the terms of a tenancy."

Then the learned county court judge comes down in favour of there being a tenancy.

We were referred in the course of the argument to a number of authorities as to the proper distinguishing test. None of them is directly in point; but perhaps I may refer to one of them-the judgment of Blackburn J in Allan v Liverpool Overseers. He said at the beginning of the judgment ((1874), LR 9 QB at pp 191, 192):

"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."

Mutatis mutandis, it seems to me that that is a very good test here.

Now, using the learned judge's phrase of "balance sheet", how does it all add up? In the first place, the plaintiff, like Mr Schumann when he went there, was offered in the first instance a daily rate. It may be that it is possible to have a tenancy from day to day; but that is an animal which none of use has ever encountered before. It is perfectly true that it became weekly, but that was merely to obtain the reduction of 5s from the total for seven days. I have pointed out that there was no bathroom or WC in any of these rooms. Service was provided inside the room. The defendants, according to the evidence of Mr Geoffreys, quite apart from entering for those purposes, reserved to themselves the right to enter, and indeed Mr Geoffreys said that he did enter, once a month, in order to clear the coin-box of the gas meter. In addition to the notice stating that visitors must be out by 10.30 pm the plaintiff said in evidence that after the incident on 9 October when the gas meter coin-box in her room was rifled, the defendants' representative told her that she was not to allow any unauthorised person to enter her room. How such a behest could be given to the plaintiff if she were a tenant it is a little difficult to see. She was told at the inception of her occupation, when she asked specifically what notice she would have to give if she wanted to leave, "No notice is necessary provided the rent is not in arrear". Counsel for the plaintiff (though I myself do not think that this is a very important point) called our attention to s 16 of the Rent Act, 1957, which provides:

"No notice by a landlord or a tenant to quit any premises let ... as a dwelling shall be valid unless it is given not less than four weeks before the date on which it is to take effect."

Therefore, if this room were let as a dwelling, a minimum of four weeks' notice would be necessary whether the "tenancy" were a weekly one or a daily one.

It is plain, I think, that the plaintiff had not exclusive occupation. There are negative factors which counsel on her behalf put before us in the course of his very full and persuasive argument, which point in the same direction. He pointed out that, if it were a tenancy, there was no covenant against subletting or assignment. There was no covenant restricting user; so that if it were a tenancy, presumably the plaintiff would be able to carry on business there, which I am sure would be a shock to the defendants. There was no covenant at all as to doing or not doing repairs, so that presumably if she were a tenant she would be able to alter the decorations of the room and matters of that kind. It is not, I think, necessary to pursue the conditions further. There was one matter, it is fair to say, that could be put on the other side of the balance sheet, though the learned judge did not mention it. The defendants did in fact talk about "rent" and "tenants"; but I think that those were only loose expressions. Finally on this part of the case, there is some force in the submission made for the plaintiff that Mrs McKenzie, who was the housekeeper and acted as an agent for the defendants at the inception of this occupation, and the plaintiff herself plainly did not intend to create a tenancy.

In view of all those factors which I have but summarised, I have come to a conclusion opposite to that at which the learned county court judge arrived. In my opinion the plaintiff was not a tenant: she was a licensee for reward.

[His Lordship then considered the question of negligence, it being admitted that the defendants, on the finding that the plaintiff was a licensee for reward, were under an obligation to use reasonable care to see that she did not suffer loss. He stated his agreement with the county court judge in rejecting allegations of negligence against the defendants based on the following grounds:

(i)

allowing the front door of the building to remain open day and night (the rejection being in view of the theft having occurred in the daytime),

(ii)

failing to provide an efficient porter or receptionist,

(iii)

failing to take any or any sufficient steps to prevent unauthorised persons entering the premises (the rejection being based on absence of evidence that unauthorised persons entered), and

(iv)

failing to provide the plaintiff with keys to any drawer or cupboard in her room.

On the further ground of alleged negligence, namely, failing to provide the plaintiff with a key to the mortice lock, he declared his agreement with the county court judge's conclusion that, if she had been provided with it and had used it, the theft probably would not have occurred and concluded that in the light of the defendants' failure to provide the key the defendants were in breach of their duty to her and she had established that that breach was a probable cause of her loss. His Lordship continued:] In these circumstances the plaintiff is, in my judgment, entitled to succeed, and, there being no question about the damages, in my opinion the appeal should be allowed and the plaintiff should recover judgment for £360.