Paisner and Ors v Goodrich
[1955] 2 Q.B. 353(Judgment by: Denning LJ)
Between: Paisner and Ors
And: Goodrich
Judges:
Denning LJRomer LJ
Parker LJ
Subject References:
LANDLORD AND TENANT
Rent restriction
Shared accommodation
'Part of house let as a separate dwelling'
Sole use by tenant of four bedrooms
Agreement for joint use with landlord of additional bedroom
Concurrent or consecutive sharing
JUDICIAL PRECEDENT
STATUTE
Construction
Different situation
Whether different construction permissible
Legislative References:
Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 - (10 & 11 Geo. 5, c. 17), s. 12 (2)
Judgment date: 27 April 1955
Judgment by:
Denning LJ
The strange thing about this doctrine of "sharing" is that no one ever thought of it for the first 30 years of the Rent Acts. I remember being engaged in many cases after the first war when a tenant of rooms in a house shared accommodation with the landlord, but no one suggested that on that account the tenant was not protected by the Acts. Sutton. v. Begley ( [1923] 2 K.B. 694 ) is typical of the approach of the profession at that time. I cannot help thinking that that approach was more in keeping with the intention of Parliament than the recent "sharing" cases. It was the housing shortage which caused Parliament to intervene to protect tenants by the Rent Acts. It is a cruel mony that the sharing of accommodation, which was forced upon people by the housing shortage, was held by the courts to be a reason for evicting a tenant and exposing him to an extortionate rent.
Neale v. Del Soto, ( [1945] K.B. 144 ) which introduced the doctrine of "sharing," is based entirely on the words of the statute "let as a separate dwelling." In that case there was a sharing of extensive accommodation, including the kitchen, and in fact the parties shared their meals in the kitchen and divided between them the work of preparing the meals. It could not be said that any part of the house was "let as a separate dwelling." The real substance of the matter was that there was a sharing of the house. There was much good sense behind the decision itself. No matter how acute the housing shortage, it was not right to force two housewives to share the same kitchen when they could not get on with one another. One or other would have to go; and of the two, the tenant, of course, had to go.
By contrast, in Cole v. Harris ( [1945] K.B. 474 ; 61 T.L.R. 440 ; [1945] 2 All E.R. 146 ) the landlord let to a tenant three rooms together with the use in common of a bathroom and a w.c. It was held that the three rooms were "let as a separate dwelling" and did not cease to be so merely because the tenant shared the bathroom and w.c. with others. The court saw that if the doctrine of "sharing" were carried to such a length it would deprive innumerable tenants of the protection which Parliament intended them to have.
Those are the two leading cases: and the contest ever since has been whether the sharing falls on the Neale v. Del Soto ( [1945] K.B. 144 ) side of the line or on the Cole v. Harris ( [1945] K.B. 474 ; 61 T.L.R. 440 ; ( [1945] 2 All E.R. 146 ) side. The cases are numerous and I need not refer to them except to say that many of the judges have suggested that it all depends on whether the shared accommodation is a living room or not. I accept that as a useful test, but I do not think that it should be regarded as decisive. If it were accepted as decisive it would mean that we have no longer to look at the words of the statute "let as a separate dwelling" but to the words of the judges "sharing a living room."
I do not think that that is a legitimate procedure. It is a misuse of the doctrine of precedent. When the judges of this court give a decision on the interpretation of an Act of Parliament, the decision itself is binding on them and their successors (see Cull v. Inland Revenue Commissioners, ( [1940] A.C. 51 ; 55 T.L.R. 1049 ; [1939] 3 All E.R. 761 ) Morelle Ld. v. Wakeling ([1955] 2 W.L.R. 672 ; [1955] 1 All E.R. 708 ), but the words which the judges use in giving the decision are not binding. This is often a very fine distinction, because the decision can only be expressed in words. Nevertheless, it is a real distinction which will best be appreciated by remembering that, when interpreting a statute, the sole function of the court is to apply the words of the statute to a given situation. Once a decision has been reached on that situation, the doctrine of precedent requires us to apply the statute in the same way in any similar situation; but not in a different situation. Whenever a new situation emerges, not governed by previous decisions, the courts must be governed by the statute and not by the words of the judges.
As Lord Porter has pointed out, "each case must be brought back to the test of the statutory words" (see his address to the Holdsworth Law Club on Case Law in the Interpretation of Statutes, page 18). If a point should be reached where the words of the judges lead to a different result from the words of the statute, then the statute must prevail: because the judges have no right to supplant the words of the statute and would not wish to do so.
So, in the present case, I accept that the decisions of this court bind us to hold that the sharing of a kitchen or kitchenette takes away the protection of the Act, whereas the sharing of a bathroom or w.c. does not; but there is no decision as yet about the sharing of a spare bedroom. It is a new situation which was not envisaged by the judges when they laid down the test of the "living room." We must get back to the statute itself and ask ourselves whether in this case a part of the house was "let as a separate dwelling." If it was, then the tenant is protected by the Acts, and she does not lose that protection because she shares some other part with the landlord.
There can be no doubt about the answer. The four rooms on the first floor were "let as a separate dwelling"; and the parties by their conduct showed that they were so let. For four-and-a-half years the tenant lived in those four rooms as a separate dwelling, without any use of the back bedroom at all. Mrs. Jaffe kept it locked against her. I ask myself this question: Suppose that Mrs. Jaffe, a few months before her death, had sought to evict the tenant on the ground of "sharing"? No court would have listened to her for a moment. And why, I ask, should they do more for her successors in title?
The truth is that this room has never been shared at all. During Mrs. Jaffe's lifetime she alone had the use of it. Since her death Mrs. Goodrich's son has used it. Applying the simple words of the statute, I have no doubt that in this case the four rooms on the first floor were "let us a separate dwelling" and that the tenant is protected by the Acts in regard to them: and that she does not lose the benefit of the Acts simply because she also had a right to share the spare bedroom, the bathroom and the w.c. in common with the landlord. I would allow the appeal.