In circumstances in which premises are let partly for residential purposes and partly for business purposes and in which the tenant is residing in the part let for residential purposes, is the landlord required by s.2 of the Protection from Eviction Act 1977 (“the Act of 1977”) not to enforce any right of forfeiture under the lease otherwise than by proceedings in court?

Such is the question raised by this appeal. It is surprising that it has not previously been answered.

Section 2 of the Act of 1977, which is entitled “Restriction on re-entry without due process of law”, provides:

So, more focussed, the question becomes whether premises let partly for residential purposes and partly for business purposes are “let as a dwelling” within the meaning of s.2 of the Act of 1977. The appeal is against an order for possession made by H.H. Judge Oppenheimer in the Brentford County Court on 25 August 2005. His answer to that question was negative. But, recognising its importance and difficulty, he gave permission to appeal against his order. Mr Luba QC, who now appears for the appellant tenant, contends that the judge’s answer should have been affirmative. Mr Weekes, who, as he did before the judge, appears for the respondent landlords, maintains that the judge’s negative answer was correct.

In effect, therefore, Mr Luba suggests that the phrase “let as a dwelling” in s.2 of the Act of 1977 means “let wholly or partly as a dwelling”, whereas Mr Weekes suggests that it means “let exclusively as a dwelling”.

The issue arises out of a lease dated 20 August 1999 of premises described therein as “all that land together with shop premises and residential accommodation above” at 44 Syon Lane, Osterley, Middlesex, granted by the respondent landlords to third parties for a term of 16 years at a rent of £7230 p.a. subject to review. In 2003, with the licence of the landlords, the third parties assigned the lease to the appellant tenant (“the tenant”). By then the rent had risen to £10,845 pa.

By clause 3(13) of the lease the tenant covenanted

It was agreed in the lease that the landlords should have a right of re-entry as follows:

The tenant conducted a retail business on the ground floor of the premises and resided on the first floor. By 13 February 2004 he was, so the judge found, in arrears of rent for at least 21 days in the sum of £1059. On that day the landlords purported to exercise their right of re-entry by causing bailiffs to change the locks of the shop on the ground floor. Until the hearing before the judge in August 2005 the tenant remained excluded from the shop. Until September 2004, however, he remained resident in the flat, which has a separate entrance.

On 8 September 2004 the landlords issued a claim against the tenant for an order for possession of the flat. The basis of the claim was that, by their re-entry on 13 February 2004, the lease had become forfeit.

On 12 September 2004 water cascaded from the flat into the shop through the ceiling. In that regard the tenant was charged with committing criminal damage to the premises and it became a condition of his bail that he should not return to the flat. On 13 September the landlords peaceably changed the locks of the flat. On 20 September the tenant issued a claim against the landlords for an injunction that they should be restrained from excluding him from either part of the premises. The basis of the claim was that, by reason of s.2 of the Act of 1977, the purported forfeiture of the lease on 13 February 2004 was unlawful. On 24 September, explaining that he hoped to secure an alteration of the bail condition, the tenant obtained an interim injunction against the landlords that they should not prevent him from occupying the flat. In the event, however, he failed to secure an alteration of the condition. In January 2005 he was convicted of causing criminal damage to the premises and, apart from being sentenced to community service, he was ordered to pay £4000 to the landlords by way of compensation. The conclusion of the criminal proceedings enabled him to return to reside in the flat; and, at the time of the hearing before the judge in August 2005, he remained resident in it.

The events of September 2004 are irrelevant to the forfeiture or otherwise of the lease. For the contractual right of re-entry is into the premises “or any part thereof in the name of the whole”. Thus, unless the landlords were precluded by s.2 of the Act of 1977 from exercising their right of re-entry otherwise than by proceedings in court, their actions on 13 February 2004 achieved forfeiture of the lease referable to the whole premises and the tenant thereupon became a trespasser in the flat.

In a succinct judgment the judge held, by reference to an authority to which I will refer in [32] below, that the demised premises were not “let as a dwelling”; that accordingly the landlords were not constrained by s.2 of the Act of 1977; and that therefore the lease had been lawfully forfeited on 13 February 2004. He went on to hold –against which there is no appeal – that, partly by reference to the criminal damage, there was no ground for granting the tenant relief from forfeiture under s.146(2) of the Law of Property Act 1925(“the Act of 1925”). So in the claim brought by the landlords he ordered the tenant to give them possession of the flat and to pay them damages for trespass; and he dismissed the claim brought by the tenant.

The first task is to set s. 2 of the Act of 1977 in context. Along with ss.1, 3 and 4, it is in Part I, entitled “Unlawful Eviction and Harassment”. Section 5, on the other hand, is in Part II, entitled “Notice to Quit”. The remaining sections are in Part III, entitled “Supplemental Provisions”.

One does best to start with s.3, which is entitled “Prohibition of eviction without due process of law” and which, as amended, provides:

the tenancy (in this section referred to as the former tenancy) has come to an end, but

the occupier continues to reside in the premises or part of them,

By s.8(1), the phrase “statutorily protected tenancy” now means eight specified types of tenancy. The third, which has been in the list from the beginning and which is set out at (c), is “a tenancy to which Part II of the Landlord and Tenant Act 1954 applies”. This leads to s.23 of that Act (“the Act of 1954”), which provides:

So the ambit of s.3 becomes clear. If the circumstances are that

the premises have been “let as a dwelling”;

the tenancy has come to an end; and

the occupier, i.e. anyone lawfully residing in them at the termination of the tenancy, continues to reside in them,

The inclusion within the phrase “statutorily protected tenancy” of a tenancy to which Part II of the Act of 1954 applies may also be significant. Part II applies to a tenancy, such as in the present case, of premises occupied partly for residential purposes and partly for business purposes because, within the meaning of s.23, the property “includes” premises occupied for business purposes. The possible significance is that Parliament thought it necessary specifically to exclude such a tenancy from the ambit of s.3 by including it in s.8 as a type of “statutorily protected tenancy”. Had Parliament considered that it was not of premises “let as a dwelling”, such a tenancy would not in any event have fallen within s.3 and there would have been no need to provide that it should be thus excluded. Accordingly the perceived need to exclude it may suggest that, at any rate for the purpose of s.3, such a tenancy is indeed of premises “let as a dwelling”. I will return to this argument, to which it will be convenient to refer as “the s.8 argument”.

Next one should turn to s.2 itself, set out at [3] above. On any view it is closely related to s.3. Thus the requisite circumstances are, again, that the premises are “let as a dwelling” and that a person is lawfully residing in them. The difference is, however, that the proscription in s.2 is against enforcement of a right of forfeiture otherwise than by court proceedings and therefore, in that termination of the tenancy is achieved only at the moment of such enforcement, the section, unlike s.3, does not cater for the situation in which, at the time of recovery of possession, the tenancy has already come to an end. No doubt the proscription could have been insinuated into s.3 but at a cost in terms of terminological complexity. So it is given a section of its own; and, since it addresses an immediately prior stage in the relationship between landlord and tenant, it is presumably given an immediately prior position in the Act.

Statutorily protected tenancies, although excluded from s.3, are not excluded from s.2. The reason is that no tenant has statutory protection, otherwise than by virtue of s.2 itself, against peaceable re-entry pursuant to a forfeiture clause. Violent re-entry is in any event prohibited by the criminal law, namely s.6 of the Criminal Law Act 1977; but the offence can be committed only if the tenant or some other person happens to be present at the time of re-entry.

Finally one should turn to s.1. Although it has a much wider sweep, the section has a direct nexus with ss.2 and 3. It creates criminal offences of unlawfully depriving a “residential occupier” of his occupation of premises and of harassing him. Under s.1(1) the phrase “residential occupier” is defined to mean:

The links between ss.1, 2 and 3 reflect their collection together within Part I. Section 5, however, has an entirely different subject and so comprises Part II. Its only similarity with ss.2 and 3 is that it addresses premises “let … as a dwelling”. It provides that a notice to quit such premises shall not be valid unless it is in writing, contains prescribed information and is given not less than four weeks in advance.

The Act of 1977 was an Act of consolidation. Subsequently, however, it has been amended and so now it does more than to reflect legislation passed prior to 1977. Section 5 has a pedigree different from that of ss.1 to 3, in that, as originally enacted, it re-enacted a provision of the Rent Act 1957 (“the Act of 1957”) as amended. By contrast ss.1 to 3, as originally enacted, re-enacted ss.30 to 32 respectively of the Rent Act 1965 (“the Act of 1965”) as amended. But two of those sections of the Act of 1965, namely ss.30 and 32, derive, with modifications, from s.1 of the Protection from Eviction Act 1964, being an Act passed with only temporary effect pending the bringing forward of the new government’s Bill later to become the Act of 1965. Thus, whereas ss.1 and 3 of the Act of 1977 have their genesis in s.1 of the Act of 1964, s.2 of the Act of 1977 has its genesis only in s.31 of the Act of 1965, of which it is indeed a replica.

Sorely in need of assistance in resolving such ambiguity in s.2 of the Act of 1977 as prompts respectable rival arguments that the phrase “let as a dwelling” means “let wholly or partly as a dwelling” or, instead, means “let exclusively as a dwelling”, the court would have been entitled to consider any relevant explanation proffered in Parliament while what was to become s.31 of the Act of 1965 travelled into enactment. But resort to Hansard proves to be of no assistance. In introducing to the House of Lords the clause which was to become s.31 of the Act Lord Mitchison said only, at Vol 269, Col 475:

The phrase “let as a dwelling”, although never directly the subject of construction in the context of s.2 of the Act of 1977, has been the subject of extensive construction in other provisions. But such construction has not been entirely consistent; and the inconsistency is no doubt testament to the desire of the courts to serve the different purposes perceived to underlie different provisions.

Rent control and security of tenure were introduced on an emergency basis by the Increase of Rent and Mortgage Interest (War Restrictions) Act 1915 (“the Act of 1915”). Section 2(2) of the Act of 1915 provided that the Act applied “to a house or a part of a house let as a separate dwelling … and every such house or part of a house shall be deemed to be a dwelling-house to which this Act applies … ”. In Epsom Grand Stand Association Ltd v. Clarke [1919] WN 170 this court considered the applicability of the Act to the letting of premises on the race-course upon terms under which the tenants were to run part of them as a public-house and to occupy the other part themselves. The court held that the premises were “let as a separate dwelling”. Bankes L.J., with whose judgment Scrutton and Atkin L.J.J. concurred, said at 171:

The Act of 1915 was replaced by the Increase of Rent and Mortgage Interest (Restrictions) Act 1920 (“the Act of 1920”). By s.12(2) it was again provided that the Act applied to premises “let as a separate dwelling”. But Parliament expressly endorsed the construction favoured in the Epsom case by including in the subsection a proviso that:

I have explained at [15.4] above that, when the Act of 1954 was enacted in order, in Part II, to provide security of tenure for business tenants, the definition in s.23(1) of the tenancy to which Part II applied was wide enough to cover a tenancy for mixed purposes (provided that there was continued occupation for business use). For three years, however, premises “let as a dwelling” were precluded by s.43(1)(c) of the Act of 1954 from falling under the protection of that Act and remained under that of the Rent and Mortgage Interest Restrictions Acts. Then, however, came the Act of 1957, which removed the protection of these Acts from a large number of residential lettings above a modest rateable value. From then onwards a letting of premises above the specified value for mixed purposes (provided that there was continued occupation for business use) fell under the protection of the Act of 1954: see s. 11(7) of, and para. 11 of Schedule 4 to, the Act of 1957. A letting of premises below that value for mixed purposes (provided that there was continued occupation for business use) was ultimately also brought under the protection of the Act of 1954 by s. 64(2) of the Housing Act 1980. Even when, in the interim, the Act of 1965 had reversed much of the effect of the Act of 1957 by establishing a regime of regulated tenancies, it had barred tenancies which fell under the protection of the Act of 1954 from falling into the new regime: see s.1(3). It had also excised both the second proviso to s.12(2) of the Act of 1920 and s.3(3) of the Act of 1939: see paras. 1(1) and 3 of Schedule 1.

Thus it has been clear since 1957 that a tenancy for mixed purposes falls under the protection of the Act of 1954, provided that there is continued occupation for business use. For the purpose of discerning whether such a tenancy was protected and if so by what regime, it thus ordinarily became irrelevant to ask whether the premises were “let as a dwelling”. So, after 38 years, the line of authority begun in the Epsom case largely came to an end. Does it follow however that, when, in other contexts and of course in particular in s.31 of the Act of 1965 and also in s.32 thereof, Parliament used the phrase “let as a dwelling”, it did not intend the generous construction favoured by that line of authority to apply to it?

Sir Ashley Bramall, a distinguished commentator in the field, wrote the notes to the Rent Act 1965 upon its publication in Current Law Statutes. In relation to s.32 he noted that “there would seem to be no reason why the rules which have been established under the earlier Rent Acts for construing [the phrase “let as a dwelling”] should not apply to this section”; and he cited the case of Slaughter. In relation to s.31 he wrote:

Mr Julian Farrand, also a distinguished commentator in the field, wrote the notes to the Act of 1977 upon its publication in Current Law Statutes. In relation to the phrase “let as a dwelling” in s.2, he referred to his notes in the same volume to s.1 of the Rent Act 1977, which was enacted on the same day as was the Act of 1977. There he cited then recently reaffirmed authority in this court to the effect that it included premises used for business purposes as well as for a dwelling.

Between 1978 and 1988 followed a quartet of authorities of this court which, as Mr Luba concedes, present difficulties for his construction. Directly or indirectly they each addressed a situation, far removed from the present, in which there had been a letting for mixed purposes, following which the tenant had ceased business use and argued that the cessation enabled him to invoke either the more benign protection of the Rent Act 1977 (“the Act of 1977”) or the right to buy under the Housing Act 1985 (“the Act of 1985”). In the quartet the court unsurprisingly rejected such an argument; but, unfortunately for Mr Luba, it did so by suggesting that the premises had not been “let as a dwelling”.

The first case is Cheryl Investments Ltd v. Saldanha [1978] 1 WLR 1329. The facts did not reflect the situation to which I have just referred; but at 1334B, in what he called his fourth illustration, Lord Denning MR chose to address it. He said that in that situation the tenant’s argument would fail “because [the premises were] never let to him as a separate dwelling”.

The second case is Pulleng v. Curran (1980) 44 P&CR 58. In the event the tenant failed to establish that his business use had ceased and so his argument fell at the first hurdle. But, in passages later construed not to be obiter but to represent a second ground for the dismissal of his appeal, all three members of the court proceeded to reject his argument that, if his business use had ceased, he was protected by the Act of 1977. Although in their judgments Sir George Baker and Cumming-Bruce L.J. in my view steered clear of casting their conclusion on the basis that the premises had not been let as a dwelling, Stephenson L.J. , at 74, adopted that basis; and, at 75, he supported it by reference to the dictum of Lord Denning M.R. in the case of Cheryl Investments.

The third case is Wagle v. Trustees of Henry Smith’s Charity Kensington Estate [1990] 1 QB 42. Here the business use had undeniably ceased and the court held that the tenants did not thereby become protected under the Act of 1977. Counsel for the tenants had submitted that there was a long line of authority which precluded the court from holding that the premises were not “let as a dwelling”. He had also submitted that the facts that in 1920 and 1939 Parliament had endorsed the conclusion that a letting for mixed purposes enjoyed the protection of the Rent etc Acts, that in 1957 it had changed the protection of such a letting to the Act of 1954 and that in 1965 it had declined to reverse the change and had excised the provisions in the Acts of 1920 and 1939 were all irrelevant to the construction of the phrase when the need for it still arose. But the submission was rejected. At 51D Dillon L.J. held that in particular the case of Pulleng obliged the court to reject it. At 53A-C Taylor L.J. said that he saw some force in the submission. But he cited the dictum of Lord Denning M.R. in the case of Cheryl Investments; held that the effect of the statutory excision was that the meaning of the phrase “let as a separate dwelling” had contracted and no longer included a tenancy for mixed purposes; and stated that the court was in any event bound to accept that view. Sir John Megaw agreed with both judgments.

The fourth case is Webb and Barrett v. London Borough of Barnet (1988) 21 HLR 228, decided by the court only weeks after its decision in the case of Wagle. The letting for mixed purposes was of premises owned by the local authority and the tenant, who had ceased business use of the premises, wished to exercise the right to buy them under the Act of 1985. For that purpose he needed to establish that he had a secure tenancy and thus, for the purpose of s. 79(1) of the Act of 1985, that the premises were “let as a … dwelling”. In giving the substantive judgment Taylor L.J. again relied heavily on the excision by the Act of 1965 of the provisions in the Acts of 1920 and 1939, which he described as excision of the “statutory extension” in those Acts of the phrase “let as a dwelling”. Then, by reference in particular to the cases of Cheryl Investments, Pulleng and Wagle, he proceeded to explain why the court was bound to hold that the premises were not “let as a … dwelling”.

Mr Luba reserves the right to complain elsewhere, were it helpful to his argument for him to do so, that in the above quartet of cases this court fell into error. But he accepts that we are bound by the decisions and that, had his client voluntarily ceased business use of the premises, we could not hold him to be an assured tenant under s.1 of the Housing Act 1988 (which applies to premises “let as a … dwelling”). He submits, however, that construction of s.2 of the Act of 1977, which occupies an entirely different area of the law, should be unaffected by them; that its construction should indeed by informed by the line of authority which began with the Epsom case; and that a more recent decision of this court, namely the Wellcome Trust case above, shows that, at least in a third area of the law, the line of authority remains valid.

In the Wellcome Trust case there was a tenancy for mixed purposes and, with the landlord's permission, the tenant sublet one of the residential flats within the premises to the defendant, who enjoyed protection under the Act of 1977. The question was whether, when the tenant surrendered his tenancy of the premises, the defendant enjoyed protection under the Act of 1977 against the claimant freeholder. The answer depended upon whether, within the meaning of s.137(3) of the Act of 1977, the defendant’s flat formed “part of premises which have been let as a whole on a superior tenancy but do not constitute a dwelling-house let on a statutorily protected tenancy”. In the case of Maunsell above the House of Lords had held by a majority that, in that context, the word “premises” meant dwelling-houses or premises treated as dwelling houses for the purposes of the Rent Acts pursuant to the line of authority which began with the Epsom case. In the Wellcome Trust case, by one valuable judgment, this court explained that, in accordance with that line of authority, the premises had been let to the tenant “as a dwelling” and that accordingly the defendant enjoyed protection against the claimant under the Act of 1977. Although the case of Webb was cited to it, the court in the Wellcome Trust case was not persuaded of the relevance of the excision in 1965 of the provisions in the Acts of 1920 and 1939. At 657 G-H it said:

I come to the decision of this court in National Trust for Places of Historic Interest or Natural Beauty v. Knipe [1998] 1 WLR 230. It was by reference to this authority that in the present case the judge held that the premises were not “let as a dwelling” for the purpose of s.2 of the Act of 1977; and it is by reference thereto that Mr Weekes submits that we are required to dismiss the appeal.

In the National Trust case the tenancy was of what was described in the agreement as an agricultural holding; and it was agreed to be protected by the Agricultural Holdings Act 1986 (“the Act of 1986”). The holding comprised 350 acres of pasture, together with two farmhouses. The tenants covenanted not to use the holding for any purpose other than agriculture, to farm it in accordance with the rules of good husbandry and personally to reside in the farmhouses. They fell into arrears of rent; and, having complied with the pre-requisites set by the Act of 1986, the landlords served a notice to quit. In the ensuing action for possession the tenants contended that the notice was invalid in that, contrary to s.5 of the Act of 1977, it had omitted material required to be included by regulations made pursuant thereto. The omitted material was apparently of no practical interest to the tenant of an agricultural holding. The landlords responded that, in that the premises had not been “let … as a dwelling”, s.5 did not apply. The tenants’ contention prevailed in the county court but the landlord’s appeal was allowed.

In the National Trust case the primary submission on behalf of the tenants to this court was the s.8 argument, suitably adapted. The fourth of the eight types of tenancy specified in s.8 of the Act of 1977 as comprised in the phrase “statutorily protected tenancy”, set out at (d), is “a tenancy of an agricultural holding within the meaning of the [Act of 1986].” The argument of the tenants was therefore that:

Parliament thought it necessary by s.8 specifically to exclude a tenancy of an agricultural holding from the ambit of s.3;

if the phrase “let as a dwelling” in s.3 had not included a tenancy of an agricultural holding upon which there was a dwelling-house intended for residential use, the exclusion would have been unnecessary;

thus the phrase in s.3 included such a tenancy;

the phrase bore an identical meaning in all sections of the Act in which it appeared, namely ss.2, 3 and 5;

thus in s.5 the phrase included such a tenancy; and

in that it was common ground that s.8 did not apply to s.5, such a tenancy was not thereby excluded from the ambit of s.5.

At 236E Pill L.J. noted that leading counsel for the landlords was inclined to acknowledge not only the difficulty presented by the s.8 argument on behalf of the tenants but also its inexorable logic. At 238D Judge L.J., who gave the only other substantive judgment, specifically associated himself with the fourth limb of the argument by saying that “unnecessary confusion would be caused unless each term in the Act of 1977 is given the same meaning wherever it appears”; and at 239E he referred to the apparent logic of the argument.

Nevertheless the unanimous conclusion of the court was that the premises which were the subject of the tenancy were not “let … as a dwelling” for the purpose of s.5. At 237 A – C Pill L.J. said:

pointed out at 239G that, prior to the Act of 1977, the precursor to s.5 was contained in an Act (the Act of 1957) different from the Act (the Act of 1965) which contained the precursors to ss.3 and 8, with the result that the s.8 argument would not then have been available;

referred at 239H – 240C to purportedly comprehensive provisions relating to notices to quit agricultural holdings contained in a statute enacted only four months prior to enactment of the Act of 1977;

concluded at 241 B – C that, in construing the phrase “let as a dwelling”, it was crucially important to focus on the specific statutory provision in which it was contained;

found at 243D that the tenancy was, as the agreement stated, an agricultural tenancy, as defined by the Act of 1986;

held at 243B that s.5 did not, as it might have done, clearly include agricultural tenancies and should not be treated as if it did so; and

held at 243G that the farmhouses were part of the agricultural holding and that their presence did not mean that the premises were “let … as a dwelling”.

I conclude that the phrase “let as a dwelling” in s.2 of the Act of 1977 means “let wholly or partly as a dwelling” and so applies to premises which are let for mixed residential and business purposes. I am convinced that, when its precursor was introduced as s.31 of the Act of 1965, such was understood to be the established meaning of the phrase, contained, as it had been, in a series of prior enactments and so construed, as it had been, in a series of judgments of this court. If such is what the phrase then meant in s.31 of the Act of 1965, such is what it must now mean in s.2 of the Act of 1977: for the words are identical and lie on the page without any later qualification, direct or indirect. Their meaning cannot in my view have fluctuated with the tides which have ebbed and flowed in this court in relation to the meaning of the phrase in other contexts.

This view of the meaning of the phrase in s.2 of the Act of 1977 is strongly supported by the s.8 argument, which I hold to be unanswerable. The exercise of statutory construction encourages the attribution to each word, and all the more to each provision, of a reasonable value and discourages the dismissal of any such word or provision as idle surplusage. The inclusion of a tenancy for mixed purposes in s.8 of the Act of 1977, as in the other three provisions referred to in [33] above, is not idly surplus: its purpose is to exclude such a tenancy from s.3 of the Act of 1977 because otherwise the phrase “let as a dwelling” would have included such a tenancy in it. It is the clearest window into the meaning of the phrase at least in s.3 and, by reference, in s.2.

Whereas, however, s.3 of the Act of 1977 may be regarded as a full brother of s.2, s.5 is no relation to the brothers at all: it simply happens to inhabit the same statute, albeit a different part. Mr Weekes persuaded the judge first to extract from the National Trust case the conclusion of Judge L.J., set out at [32.4] above, that the phrase “let as a dwelling” should bear the same meaning in ss.2, 3 and 5 and then to marry it with the conclusion of Pill L.J., set out at [32.5] above, that s.5 did not refer to the letting of “premises which include a dwelling”. But s.2 did not fall for any direct consideration in that case; its different genesis was irrelevant; and, although my respect for the views of the members of that court goes without saying, it seems to me, in the light of the analysis of the genealogy of the whole Act set out above, that it would be almost absurd that dicta in the National Trust case should weigh significantly in the construction of s.2, and still less should determine it. Unlike the letting in the present case, which was expressly for the mixed purposes apt to “shop premises and residential accommodation”, the letting in the National Trust case was of what was described in the agreement as an agricultural holding. I believe that the essence of that decision is simple, namely that the premises were not let as a dwelling because they were let as an agricultural holding. But if that analysis, instead of being simple, were to be simplistic, then in my view we would need, albeit with regret, to tolerate a difference in the meaning of the phrase “let as a dwelling” in s.5, on the one hand, and in ss.2 and 3, on the other.

It is high time for me to stand back and to ask a basic question: is there any reason to suppose that, in enacting s.2 of the Act of 1977 and its precursor, Parliament intended, notwithstanding what I consider to be the likely meaning of the words which it chose, that tenants who hold tenancies for mixed purposes should not also enjoy the protection which on any view it was affording to purely residential tenants? I suggest that three main considerations underlie the limited prohibition in s.2 against what, in Billson v. Residential Apartments Ltd [1992] 1 AC 494 at 536F, Lord Templeman described as the “dubious and dangerous” method of enforcing a right of forfeiture by re-entry without due process of law:

A tenant should not be at risk of returning home to discover that, unbeknown to him, he and his family have been locked out and are homeless. If they are to be evicted, the eviction should be conducted in an orderly fashion, upon at least some prior notice, by officers subject to court direction.

If there is to be an issue as to whether the landlord is entitled to forfeiture under the terms of the tenancy, it is preferable, particularly in relation to a home, for the court to determine it in advance of eviction rather than in proceedings brought by the tenant for an injunction and damages in the wake of it or in criminal proceedings against the landlord under s.1 of the Act of 1977.

If there is to be an issue as to whether the tenant is entitled to relief against forfeiture pursuant to s.146(2) of the Act of 1925, it is, again, preferable, particularly in relation to a home, for the court to determine it in advance of eviction rather than in its wake.

My suggested interpretation of s.2 of the Act of 1977, namely that it applies to premises let to a tenant for mixed residential and business purposes, has been reached for the reasons set out above, unrelated to his human rights. But reference to his human rights fortifies the interpretation.

So far as it is possible to do so, s.2 must be read and given effect in a way which is compatible with the tenant’s rights under the European Convention on Human Rights 1950: s.3 Human Rights Act 1998 (“the Act of 1998”). There can be no doubt that the present issue engages the tenant’s right to respect for his private life and for his home pursuant to article 8(1) of the Convention and that the exercise by the landlords of their purported right of re-entry interfered with his right. Article 8(2) of course provides that:

In this regard counsel have made brief oral submissions to us on the case of Connors v. U.K. (2005) 40 EHRR. 9 189; and, aware that only days after the hearing before us the House of Lords would in its judgment upon Kay v. London Borough of Lambeth and Leeds City Council v. Price [2006] 2 WLR 570 survey the impact of the case of Connors upon entitlement to possession of a person’s home in accordance with domestic principles of law, we have allowed counsel to make written submissions upon any relevant effect of the judgment following publication.

There is no doubt that the cases both of Connors and of Kay and Price lie at a considerable distance from the present case. They address the question whether rights under Article 8 represent a reservoir of entitlement upon which the occupier of a home can draw in order to resist an order for possession when domestic law leaves him defenceless. Nevertheless in my view they assist performance in the present case of our obligation under s.3 of the Act of 1998 to strive for compatible interpretation. For in the former the European court stressed – and in the latter the House accepted – that, in considering whether interference with rights of the occupier under article 8(1) is “necessary in a democratic society” for the protection of the rights of the landowner, the court has to consider whether the interference is proportionate to that aim; and that the absence of procedural safeguards for the occupier may well lead to a conclusion that it is not proportionate.

In the case of Connors enforcement of the right given to local authorities under U.K. domestic law to evict a gypsy from a designated site upon termination of his licence by a bare notice to quit was held by the European Court to be incompatible with his rights under Article 8. At [85] the court defined the central issue as whether the domestic legal framework provided sufficient procedural protection for his rights. And at [94] it concluded that:

That such is the foundation (or a major part of it) of the judgment in the case of Connors is endorsed in the speeches in the case of Kay and Price, in particular in those of Lord Hope at [67] and of Lord Scott at [160] and [172].

From the case of Connors I confidently derive the following: that an interpretation of s.2 of the Act of 1977 which prohibits a landlord from exercising – otherwise than by proceedings in court – an alleged right of re-entry upon premises let for use as a dwelling as well as for business purposes is an interpretation which would be compatible with the tenant’s rights under article 8; and, by contrast, that the opposite interpretation of it would be incompatible with them.

I should add that Mr Weekes complains that there is a serious fault in this line of argument, namely that it takes no account of the fact that article 8(2) circumscribes interferences with rights under article 8(1) on the part only of a “public authority” rather than of private landlords such as his clients. In my view, however, his point does not affect the interpretative obligation under s.3 of the Act of 1998. Had s. 2 of the Act of 1977 not borne the meaning which I ascribe to it, a question might have arisen as to whether the positive obligations on public authorities to protect citizens from infringements of their rights under article 8 were such as to oblige the state to legislate against enforcement by private landlords of contractual rights of re-entry of premises let for mixed purposes otherwise than by proceedings in court. My conclusion, however, is that happily such legislation is already in place.

My answer to the question in [1] above is yes.

I would allow the appeal and, subject to any further argument, set aside the order for possession.

I agree that this appeal should be allowed. As we are differing from the judge and in deference to the careful arguments of counsel and because of the importance of the question raised on the appeal, I add a few words of my own. I adopt the definitions used by Wilson L.J.

In Pulleng v Curran (1980) 44 P&CR 58 at 65 Sir George Baker said of tenanted premises similar to those which are the subject of this appeal:

S.2 directs attention, as Mr Weekes pointed out, to the terms of the tenancy and the use of the premises to be made by the tenant: are demised premises “let as a dwelling”? If one looks at the statutory language, one can readily see indications pointing in two different directions. One notes that in s.2 itself, whereas the opening words are “Where any premises are let as a dwelling”, the concluding words are “the premises or part of them”, and that suggests that the whole of the premises must be let as a dwelling. Against that can be set the s.8 argument as described by Wilson L.J. and in particular the noticeable absence from s.2, in contrast with s.3, of the exclusion of a statutorily protected tenancy, including a business tenancy subject to Part II of the Act of 1954.

It is ordinarily both unnecessary and undesirable to construe a consolidation Act by reference to statutory antecedents, but it is permissible to do so in a case where the consolidation Act is unclear (Farrell v Alexander [1977] AC 59). The present is such a case.

Mr Weekes submitted that, if anything, the legislative history of ss.2, 3 and 5 helped the landlords. Mr Luba QC has persuaded me that the opposite is true. I note in particular that ss.2 and 3 of the Act of 1977 derive from ss.31 and 32 of the Act of 1965 whereas s.5 derives from a different source, the Act of 1957. I am also persuaded that in 1965 the words “let as a dwelling” had an established meaning through a long line of authority developed in the context of the statutory phrase “let as a separate dwelling” in the Rent and Mortgage Restrictions Acts. The inclusion of the word “separate” in those Acts must have made it more difficult for the courts to find that a letting for mixed purposes was a letting as a separate dwelling, but from Epsom Grand Stand Association Ltd v Clarke [1919] WN 170 onwards until the time of the enactment of the Act of 1965 such a letting was held to be a letting as a separate dwelling. Parliament must be taken to have been aware of those decisions when enacting the predecessors of ss.2 and 3 of the Act of 1977.

I respectfully agree with the comments of Wilson L.J. on what he has called the quartet of cases between 1978 and 1988. In this context the decision of this court in Wellcome Trust Ltd v Hamad [1988] QB 638 is of particular importance, because the quartet of cases were among those cited to the court. Nevertheless this court did not accept the suggestion of Dillon L.J. in Wagle v Trustees of Henry Smith’s Charity Kensington Estate [1990] QB 42 that the Epsom case could not really carry much authority ([1998] 1 QB 650). On the contrary, this court reaffirmed the line of authority commencing with Epsom.

The decision of this court in National Trust v Knipe [1998] 1WLR 230 formed the basis of the Judge’s decision in the present case and was heavily relied on by Mr Weekes before us. Again I respectfully agree with Wilson L.J.’s comments on that case. The Judge did not take sufficient note of the fact that that case concerned a letting of premises (over 350 acres including farmhouses) as an agricultural holding, whereas by virtue of the user covenant in clause 3(13) of the lease in the present case unquestionably the letting of the upper floor of the premises was as a dwelling; nor did he take sufficient note of the fact that the National Trust case was a decision on s.5 in Part II of the Act of 1977 whereas the present case is concerned with s.2 in Part I of that Act. Whilst I have some sympathy with the Judge who not surprisingly followed dicta of this court, I respectfully disagree with his conclusion.

Mr Luba disclaimed any defence based on human rights because no such defence was pleaded below and counsel then appearing for the tenant was not permitted to develop one in argument at trial. But Mr Luba suggested that the European Convention on Human Rights assisted on the interpretation of s.2 and supported the tenant’s submission. I agree.

For these as well as the reasons given by Wilson L.J. I too would allow this appeal and make the order he suggests.