Dalby v. Gazzard

The appellants, Mr Dalby and his wife, sought possession of a flat from the respondent, Sheila Gazzard, who was their weekly tenant. The tenancy had been determined by notice to quit. However, the respondent, John Gazzard, a protected person under the National Security (War Service Moratorium) Regulations, was in actual occupation of the flat, having been let into possession by Sheila Gazzard. The magistrate found the appellants entitled to possession against Sheila Gazzard but ordered that the warrant of possession not be executed against John Gazzard, on the basis that he was a protected person claiming under the lessee. The appellants appealed this latter part of the order to the High Court.

The central legal issue before the High Court was the interpretation of the phrase "claiming under the lessee" as used in regulation 30(6) of the National Security (War Service Moratorium) Regulations. This regulation provided that an order for possession should not be enforced against a protected person in actual possession unless certain conditions were met. The court had to determine whether John Gazzard, who had been permitted to occupy the flat by the tenant but had not been granted any formal right or title to possession, satisfied this requirement.

The High Court considered two competing interpretations of "claiming under the lessee." The first, a broader view, suggested that simply being let into possession by the lessee was sufficient. The second, a more limited view, required the lessee to have conferred some right or title upon the person in possession, which would have entitled them to remain in possession but for the determination of the head lease. The Court favoured the more limited interpretation, reasoning that the purpose of regulation 30(6) was to protect a protected person whose right to possession was derived from and dependent upon the lessee's interest. In this case, John Gazzard had been granted a licence to occupy the premises by Sheila Gazzard, but this licence did not constitute a right or title that he could claim under after the determination of her tenancy.

The High Court allowed the appeal, holding that John Gazzard was not a person "claiming under the lessee" within the meaning of regulation 30(6). Consequently, the protection afforded by that regulation did not apply to him. The Court therefore ordered that the warrant of possession could be executed against John Gazzard.