учебный год 2023 / premiums and precedent

Mar. 1977] NOTES OF CASES 217

The main submission relied on by the appellants was that the words "any person " in section 85 (i) were wide enough to encompass persons other than landlords and, indeed, the respondent on the facts of the case. The respondent was able to cite two decisions of the Court of Appeal (Remmington v. Larchin 2 and Zimmerman v. Grossman 3) in support of her contention that the words " any person" did not support the construction submitted by the appel- lants. No material distinction could be made between the facts of

these cases and the instant case. If the respondent's contention was correct, there was clearly a most important loophole in the provisions of the 1968 Act. Indeed this loophole had been exploited particularly after the decision of the Court of Appeal in Zimmerman v. Grossman.

In the Court of Appeal 4 the majority upheld the decision of the county court judge in favour of the respondent. The judgments of Lawton and Scarman L.JJ. largely dealt with the submission that the decision of the Court of Appeal in Zimmerman v. Grossman had been reached per incuriam and should not therefore be followed

under the rule in Young v. Bristol Aeroplane Co. Ltd.5 Both judges decided that this was not the case and for them that concluded the

matter.

In his dissenting judgment Lord Denning M.R. concluded a masterly analysis of the facts and the law with the view that Zimmerman v. Grossman was "wrongly decided. So much so that I do not think it is binding on us." He went on to say 6:

" I have often said that I do not think that this court should be

absolutely bound by its previous decisions, any more than the House of Lords. I know it is said that when this court is satisfied

that a previous decision of its own was wrong, it should not overrule it but should apply it in this court and leave it to the House of Lords to overrule it. Just think what this means in

this case. These ladies do not qualify for legal aid. They must go to the expense themselves of an appeal to the House of Lords to get the decision revoked. The expense may deter them and thus an injustice will be perpetrated. In any case I do not think it right to compel them to do this when the result is a foregone conclusion. I would let them save their money and reverse it here and now."

Lord Denning's words were strongly disapproved of in the judgment of Lord Russell of Killowen in the House of Lords.7

The appellants succeeded in their appeal to the House of Lords, Lord Russell dissenting. It is convenient to analyse the decision of the House by reference to the rhetorical questions posed by Lord Simon of Glaisdale at the beginning of his speech:

218 THE MODERN LAW REVIEW [Vol. 40

(1) What is the proper approach to the interpretation of a Con- solidation Act? According to Maxwell 8: " In interpreting a Consolidation Act, account is taken of judicial decisions on provisions continued in the statutes now codified." In the instant case the

majority of their lordships held that a court, when construing a Consolidation Act, should construe that Act in accordance with the

usual canons of statutory construction and without recourse to the Act's antecedents, and that the recourse should only be had when there is "a real and substantial difficulty or ambiguity which classical methods of construction cannot resolve." This clearly contrasts with the traditional approach which was favoured by Lord Russell of Killowen.

(2) Adopting such an approach, what is the proper construction of section 85 of the Rent Act 1968 in relation to the facts judicially ascertained in the instant case? The majority concluded that the words of section 85 were unambiguous and that it was therefore

inappropriate to refer to the history of this particular provision. The majority found that the words " any person " in section 85 (1) and (2) did not refer solely to a landlord, but included anyone who required or received a premium in the circumstances covered by the provision. Thus on the facts of the instant case the appellants were able to recover the sum of money paid in so far as it exceeded the true value of the fixtures and fittings for which the sum had

ostensibly been paid.

(3) Was Remmington v. Larchin correctly decided; involving also the question, how much weight should be put on the factor that the statutory provisions to be construed in that case had penal

consequences? In Remmington v. Larchin the Court of Appeal, in considering the terms of section 8 (1) of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920 9 was led, by consideration that a more liberal reading would give rise to extended penal

consequences, to adopt a strict construction, confining the operation of the provision to landlords. Their lordships, whilst not casting doubt on the existence of this canon of construction, showed an inclination to restrict its operation. Thus Lord Wilberforce quoted with approval from the speech of Lord Reid in D.P.P. v. Ottewell 1O where he states that the consideration only has weight where " after full inquiry and consideration one is left in real doubt." Lord Simon refers to this canon of construction as a secondary one "to be applied where there is a real ambiguity in the statutory language." 11

(4) Was Zimmerman v. Grossman correctly decided; involving

preting a consolidating Act, it is proper to look at the earlier provisions which it consolidated." per Lord Reid in I.R.C. v. Hinchy [1960] A.C. 748, 768.

9 A predecessorof the section under consideration in Farrell v. Alexander. 1o [1968] 3 All E.R. 153, 159.

11 [1976] 2 All E.R. at p. 739.

Mar. 1977] NOTES OF CASES 219

arising from a presumed parliamentary endorsement by re-enact- ment of a word or phrase previously the subject of judicial inter- pretation (the rule in Barras v. Aberdeen Steam Trawling and Fishing Co. Ltd. 2)? In the Barras case, Lord Buckmaster, speaking with reference to the meaning of " wreck " said: " It has long been a well-established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has

received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context must be construed so that the word or phrase is interpreted according to the meaning which has previously been ascribed to it." 13 It was this doctrine that had swayed the Court of Appeal in Zimmerman v. Grossman and perhaps this is not surprising in view of the importance that some members of the House of Lords attached to it in the Barras case. It was not regarded with the same reverence by the House in the instant case. Lord Wilberforce

says: " it seems to me to be based on a theory of legislative formation which is possibly fictional. But if there are cases in which this doctrine may be applied... any case must be a clear one. . . . This case is certainly not such a case." 14Lord Simon points out that " It would be an absurd fiction to hold that Parliament was endorsing

Remmington v. Larchin in derogation of that general objective

[i.e. the objective of this particular statutory provision] and was giving specific statutory sanction to another loophole in the controls." 15 The doctrine is not therefore a primary canon of construction as might appear from the words of Lord Buckmaster and from the decision of the Court of Appeal

Grossman.

(5) Was the Court of Appeal in the instant case bound to follow Zimmerman v. Grossman? The view of this question was clearly affirmative: as the decision in Zimmerman v. Grossman had not

been reached per incuriam, the majority had reached the correct decision in the Court of Appeal. The law as laid down in Young v. Bristol Aeroplane thus stands unassailed. It is hard to fault the justification for the rule put forward by Lord Simon:

"The Court of Appeal occupies a crucial position

judicial system. Most appeals stop there. It handles an immense volume of business. It sits in a number of divisions. Unless it

follows its own decisions, as the law directs, litigation will be

a gamble on which division of the court is to handle the appeal and what law will be declared there." 16

In conclusion mention might be made of the practical importance of this decision. Zimmerman v. Grossman gave judicial backing to an interpretation of section 85 which penalised a tenant who

took a premium direct from a tenant to whom he intended to assign his tenancy but not one who took such a payment in return for a surrender to and re-grant to the new tenant by the landlord. The decision of the House in the instant case will mean that the latter

device will no longer be available to a tenant wishing to assign and doubtless this will (if it has not already) have an impact on the market in rented accommodation.

It is tempting to share with Lord Denning M.R. his concern that parties were compelled to take this case to the House of Lords. Is it right that Mrs. Alexander should have had the burden of the costs of this litigation imposed on her when the county court judge and the Court of Appeal had found that the transaction had been quite lawful and justifiable?

A. S. OWEN

INJUNCTION, SERVICE AND COMMITTAL

IN Blome v. Blome,l the court was asked to commit a husband for

breach of an injunction. Following divorce, the wife in January 1976 had obtained from Dunn J. an injunction restraining the husband from disposing of any of his assets in his furniture business and from

transferringany of his assets outside the jurisdiction. On January 26 the matter came before Faulks J. who continued the injunction and also made a mandatory order requiring the husband to produce all the documents relating to the sale of his assets and other agreements within 28 days. It was for breach of this mandatory order, of which there had been no personal service on the husband, that the committal

proceedings were brought.

In his judgment Faulks J. referred to the statement in a footnote

in Rayden on Divorce 2 that in exceptional circumstances a committal order could be made even though there had been no personal service

of a prohibitory injunction. He went on to say that Pearce v. Pearce 3 had been cited as authority for that proposition, and that he had been urged to extend it to the case before him, which of course concerned

a mandatory injunction. Faulks J. not only refused to extend the

rule, but said expressly that in his opinion Pearce v. Pearce 4 was wrongly decided.

With respect, it is submitted that this last obiter dictum is clearly wrong, and that the statement in Rayden is correct, though it is no longer based on Pearce v. Pearce.4 Before October 1, 1966, the state-

ment in Rayden could be supported by authorities going back to Lord Eldon in Hearn v. Tennant 6 and fairly recently the law was

thus stated by Stamp J. in Ronson Products Ltd. v. Ronson Furniture Ltd.6: "Although it is no doubt convenient that an order restraining