Tilling v Whiteman

Tilling v Whitman [1979] UKHL 10 (08 March, 1979)

Lord Wilberforce
Lord Diplock<
Lord Salmon
Lord Fraser of Tullybelton
Lord Scarman

Lord Wilberforce

My Lords,

Lord Wilberforce This appeal arises under Case 10 of Part II of Schedule 3 to the Rent Act 1968, which reads as follows:

"Where a person who occupied the dwelling-house as his residence (in this Case referred to as 'the owner-occupier') let it on a regulated tenancy and—(a) not later than the relevant date the landlord gave notice in writing to the tenant that possession might be recovered under this Case, and (b) the dwelling house has not, since 8th December 1965, been let by the owner-occupier on a protected tenancy with respect to which the condition mentioned in paragraph (a) above was not satisfied, and (c) the court is satisfied that the dwelling-house is required as a residence for the owner-occupier or any member of his family who resided with the owner-occupier when he last occupied the dwelling- house as a residence."

If these conditions are satisfied, Section 10 of the Act requires an order for possession to be made. The appellant, Mrs. Tilling, owns a small house in Canterbury jointly with Miss G. L. M. Dossett. She claims to have been in occupation of it immediately before 19 February 1975. On that date the joint owners let it to the respondent, Miss Whiteman, for two years. The tenancy agreement contained a clause whereby Miss Whiteman agreed to yield up the premises at the end of the tenancy. There was a statement, signed by the joint owners, addressed to Miss Whiteman that under the Rent Acts 1968 and 1974 the landlord (sic) may recover possession of the premises under the provisions of Case 10 (supra).

Miss Whiteman did not yield up possession as she had agreed, so the owners brought proceedings in the Canterbury County Court for possession and other relief. Pleadings were exchanged, and the case came on for trial in May 1977 with both sides legally represented. The learned judge took what has turned out to be an unfortunate course. Instead of finding the facts, which should have presented no difficulty and taken little time, he allowed a preliminary point of law to be taken, whether Case 10 applies to a case where there are joint owners one only of which requires the house as a residence. So the case has reached this House on hypothetical facts, the correctness of which remain to be tried. I, with others of your Lordships, have often protested against the practice of allowing preliminary points to be taken, since this course frequently adds to the difficulties of courts of appeal and tends to increase the cost and time of legal proceedings. If this practice cannot be confined to cases where the facts are complicated…