Hardwick v Johnson

Where a family arrangement leaves important consequences unaddressed, the court determines the resulting legal relationship by examining all the circumstances and imputing the intention that reasonable people would have formed. The arrangement may create a licence rather than a tenancy, with terms governing payment and revocation. A licence granted to a married couple to provide a home is not revocable at will against a deserted wife living there with a child, particularly where she is ready to make the agreed payments. A concession on payments generally postpones enforcement rather than extinguishes the liability. A continuing licensee is not a trespasser, so mesne profits on that footing are unavailable.

The appellant bought a house in her own name for her son and his fiancée, who married and occupied it. They were expected to make payments of £7 a week, but payments were made only for a short period. After the marriage broke down, the son left, while the respondent wife and her baby remained in the house and offered to pay £7 a week.

The appellant brought possession proceedings against both occupants. The Trowbridge County Court found that the arrangement created a licence to both, that payment had been postponed until the appellant demanded it, and that the wife was not in breach. Possession was refused and judgment was entered for £112. The appellant appealed, seeking possession and further sums as mesne profits. The central issues were the nature and revocability of the licence, the effect of the payment arrangement, and whether the wife was a trespasser.

Appeal dismissed. The three judges agreed that the deputy county court judge had reached the correct result. There was no order as to costs.

1. Legal effect of the family arrangement. Where parties have not contemplated the consequences of an unforeseen event, the court must examine the circumstances, fill the contractual or equitable gaps, and impute the intention that reasonable people would have formed. This approach was expressed in Pettit v Pettit, [1970] AC at p 823. The arrangement here created a licence rather than a tenancy, granted to both the son and his wife. The Master of the Rolls treated it as a personal or equitable licence, referring to Errington v Errington and Woods, (1952) 1 King's Bench 290. Lord Justice Roskill and Lord Justice Browne preferred the description contractual licence.
2. Revocation. The licence was not revocable at will against the wife while she remained in the house with her baby and was ready to pay £7 a week. The licence was not conditional upon the marriage continuing. Future circumstances might justify termination, but it was unnecessary to define them because none had arisen.
3. Payments. The judge’s reference to waiver meant that the appellant had postponed enforcement of the monthly payments, not discharged the underlying liability. The wife’s offer to pay £7 a week after the January 1975 demand meant that she was not in breach of the licence.
4. Mesne profits and amendment. The wife was not a trespasser, so the claim for mesne profits on that footing failed. The appellate court would not permit an amendment to increase the £112 judgment. The Master of the Rolls also noted that the majority’s contractual analysis differed from his reliance on the non-contractual approach in Balfour v Balfour, (1919) 2 King's Bench 591, but the difference did not affect the result.

1. Court of Appeal: Appeal from the possession decision was dismissed. The court upheld the finding that the respondents occupied under a licence and that the wife was not in breach.
2. Trowbridge County Court: The deputy county court judge refused possession and entered judgment for £112.