I recently found myself reading and writing about the Court of Appeal judgement in Edwards v Kurasamy (our report here). Doing so made me think about the recent spate of judgements given by Lewison LJ that have touched on the private rental sector. I am thinking here of Spencer v Taylor (which we analysed here), Charalambous v Ng, and now Edwards v Kumarasamy. (our report). All of these are cases that touch primarily on the Private Rented Sector and all of them feature leading judgements by Lewison LJ. These are not of course the only big PRS cases to come from the CoA recently so I am not suggesting that Lewison LJ is the only CoA judge dealing with the PRS (see McDonald v McDonald for example) but he does seem to be getting a healthy majority right now.
There are notable parallels in these judgements:
- They were fairly controversial
- They all involved a return to the statute and a tight reading of it
- They upset received wisdom about what the provision meant.
To throw in my own piece of controversy I also think every one of these decisions was absolutely correct. Not correct in a moral sense or even correct on the sense that this is what was intended all along but undoubtedly correct in that they give a precise reading of the statue and must therefore be seen as an accurate reflection of the will of Parliament. The fact that they caused surprise and upset is perhaps more a reflection of the manner in which housing lawyers (and I include myself in this critique) have become complacent in their reading of the law.
Consider the evidence more carefully.
In Spencer Lewison engaged in a close reading of s21(1) and 21(2), Housing Act 1988. He concluded that s21(2) used the word “may” and therefore must on a plain English reading be seen as permitting the service of a notice under s21(1)(b) rather than directing it. He then looked at s21(1)(b) and again reading it plainly concluded that it in no way prevented the service of a notice provided that there had previously been a fixed term tenancy of some sort. Notably this was not how the case had been argued before him and differed somewhat from previous readings but he drew support from this material and used it to bolster the essential close reading of the Act. This decision has been criticised but notably primarily on the basis of policy and on what Parliament is assumed to have intended more than on the actual wording of the Act.
In Charalambous we had a close reading of s213 and particularly s215, Housing Act 2004. Here a diasctintion was drawn between the financial penalties fund under s213 and the s21 penalties under s215. Lewison LJ made clear that the penalties under s215 bite on this case because they plainly state that they required the registration of a deposit before service of a notice under s21. Again the intention of Parliament was raised but dismissed as a point in the face of the cold wording of the Act. It is worth noting paragraph 17 of this decision in which Lewison LJ begins:
Let me begin by looking at what section 215 (1) actually says.
No clearer statement of his approach to these cases could be made by me.
In Edwards Lewison’s attention was turned to s11, Landlord & Tenant Act 1985. By this stage we should have been expecting it. But actually Lewison LJ tells us again how he is reading these statutes. In dismissing an argument put to him he states that he “cannot find it in the words of the statute”. Again, no clearer statement of his approach is required. And so we find that a landlord’s repairing obligations extend beyond that which he has demised to the tenant and into any part in which he has a property right and further that outside the ambit of the demised property a tenant is not obliged to give notice to the landlord of a want of repair.
Lewison LJ appears not to be the only judge doing this. Consider Superstrike v Rodrigues (our report here) in which Lloyd LJ gave the leading decision (although Lewison LJ was on that panel too and may well have had an influence). There the word “received” in s213(1) of the Housing Act 2004 was given a very plain reading. Lloyd LJ concluded that this meant any receipt of money in respect of security whether as a direct payment or by way of transfer from one contract to another. Not as clear an example as those given above and without the very direct flags given by Lewison LJ but still with a similarity of approach.
So what does this mean for housing law?
It is a concern that these cases have come up recently. It leads me to the conclusion that I have been lazy! Essentially residential landlord and tenant lawyers have stopped looking closely at the legislation and simply become parrots of received wisdom. In the terms of an Americanism that I heard recently we have been “drinking the Kool Aid”. If there are three or four areas in which we are wrong as to what the law says then there are likely to be more. The second point is that the CoA here appears to be looking at the legislation without considering the policy issues and largely avoiding the Hansard as an aid to interpretation unless the wording of the Act is very unclear. Is this the start of a new trend in the CoA? If so then lawyers approaching them had best make sure they know what the relevant Act really says rather than what they think or want it to say.
I expect there will be more surprises to come in 2015. I know I will be looking at the core legislation that I previously thought I knew to make sure I am right!
I agree – when you look at the wording of the act, the decisions are absolutely right. What have we been dong all these years?
Maybe we should develop a list of ‘likely suspects’ to be Lewisonised.
Aah…takes us all right back to Entick v Carrington, viz “if this is law it would be found in our books, but no such law ever existed in this country…”
If landlords and tenants cannot depend on received wisdom and what lawyers and judges have been saying for years – how is anyone expected to cope in the real world
Er…by reading the actual law that those lawyers and judges have been commenting on?
That does not work, as in real life it is unlikely that a case would make it past the country courts, that seem to decide based on received wisdom. Most “cases” are decided on what that lawyers say when advising each side, as very few people allow a case to go to court when they are told they would lose.
We just don’t know that that next bit of “received wisdom” to be rewritten will be…
I’m not saying it’s easy but a) it’s still a salutary lesson in going back to the actual statute and not making assumptions (which is what lawyers really should be doing; no client should be paying for the passing on of uncaveated `received wisdom’) and b) these cases show the dangers of not doing so. At some point a superior court DOES take a step back, and then we do all have to deal with that on a day-to-day level in the county court.
If you’re not prepared to form your own view, and say to an opponent and/or a DJ, `Well, that’s not what the law says…’ and argue your corner, then what are you being paid for? DJs, especially those not from a housing background, get things wrong all the time, and it’s our job not to just go along with that but to point it out.
Even if it comes as a surprise, this is surely the right approach. If the statute is clear then it should not need “interpretation”.
Judges should only resort to Hansard or policy issues if the statute cannot be made sense of on a plain reading of the text.
I agree that statutes should be read carefully. “Received wisdom” is really too often just Chinese whispers with no-one able to point out where it started.
What is surprising is the level of surprise and upset many of these cases created.
The cases on deposits protection are good examples, especially since stakes can be high for landlords: The potential issues were known long before these case law to anyone familiar with the wording of the statutes.
Even worse, it happened that the “surprise” focused on aspects that were clear in the statute and already confirmed by previous case law.
Hopefully these recent cases will foster a more cautious approach.
I’m one of many who think that Spencer v Taylor is wrong, and that it is unfortunate, to put it mildly, that the general understanding of 25 years was overturned without full argument. There are two reasons why we considered for 25 years that statutory periodic tenancies required a s.21(4) notice, and they are based on a close reading of the statute. First, s21(2) is redundant if it is merely permissive; it may as well not be there. The “may” in s.21(2) is there to allow a s.21(1)(b) notice either before or on the last day of the fixed term: but in the context of the section as a whole, it means “may only”. Secondly, the effect of S v T is to marginalise s.21(4) so that it applies only to contractual periodic tenancies. But between 1989 and 1997, you couldn’t have a contractual periodic assured shorthold tenancy: all ASTs had to start with a fixed term of 6 months. So there was no work for s.21(4) to do if it was not to apply to statutory periodic tenancies. These arguments do not appear to have been considered in S v T, and it is profoundly unsatisfactory that they were not. Received wisdom is often perfectly justified.
But going to be academic once the Deregulation Bill goes through, if the Govt amends pass… http://nearlylegal.co.uk/2015/02/proposed-changes-s-21/
Yes, but it would probably not have occurred to them to make these changes if it were not for S v T, which makes it all the more damaging.