City Council of Bristol v. Lovell

The House of Lords held that Part V of the Housing Act 1985 does not plainly or impliedly oust the ordinary procedural discretion of the court to manage its list and to adjourn related proceedings. The central statutory provisions were section 138(1)–(3) (duty to convey and enforceability by injunction) read together with section 121 (circumstances in which the right to buy cannot be exercised) and section 139(2) (continuing status of the tenant until grant).

The Lords concluded that the court retains an administrative discretion under Ord. 13 r. 3(1) (or its inherent jurisdiction) to decide the order in which competing possession and right-to-buy claims are heard, provided that discretion is exercised judicially and not for the purpose of defeating the statute. The House therefore allowed the council's appeal and remitted the matter for rehearing, while recognising that in many cases an injunction under section 138 may be irresistible.

This appeal arose where a secure tenant, Mr Lovell, exercised his statutory "right to buy" under Part V of the Housing Act 1985. The council admitted the right and stated price and terms under section 125. The council separately served notice of intention to seek possession under Part IV, and later amended its particulars to allege serious misconduct (drug-dealing). The tenant applied under section 138(3) for an injunction to enforce the landlord's duty to convey the freehold; the district judge refused to grant the interlocutory injunction so as to allow investigation of the council's possession case. On appeal the county court and the Court of Appeal had held that, on the authorities, the judge had no procedural discretion to adjourn the tenant's application once the conditions in section 138(1) were satisfied.

Relief sought:

• The tenant sought a mandatory injunction under section 138(3) to compel conveyance of the freehold.
• The council sought possession under Part IV and resisted the injunction.

Issues framed:

• Whether the court retains an ordinary procedural discretion (Ord. 13 r. 3(1) / inherent jurisdiction) to adjourn or order the sequence of hearings when a tenant's right under section 138(1) has arisen; and
• What effect, if any, previous authorities (notably Dance v Welwyn Hatfield and Taylor v Newham) had on that question.

Court's reasoning:

• The House distinguished two different types of discretion: (a) the equitable discretion whether to grant a final injunction as a remedy and (b) the administrative/procedural discretion to regulate the court's business and the order of hearings. The former is not in issue; the latter remains unless excluded by statute.
• The court analysed Part V and concluded that the statutory scheme contemplates a continuing procedural process up to the actual grant (see sections 122, 125, 138 and 139(2)), and that the right to buy remains defeasible (for example by section 121) until completed. There is nothing in the language of the Act that expressly or necessarily excludes the ordinary procedural discretion to adjourn.
• The House therefore held that judges may, in appropriate circumstances, adjourn or order the sequence of hearings so that related possession proceedings can be determined first, provided the discretion is not exercised so as to defeat the statutory right.
• The House overruled Dance v Welwyn Hatfield District Council to the extent it denied any procedural discretion but did not disturb Taylor v Newham, which turned on its facts. The matter was remitted for rehearing in the county court in light of this analysis.

Appeal allowed. The House held that Part V does not automatically oust the court's ordinary procedural discretion to regulate its business (for example under Ord. 13 r. 3(1) or inherent jurisdiction) and to determine the order in which competing possession and right-to-buy claims are heard. The court must exercise that discretion judicially and not for the purpose of defeating the statute; the case was remitted to the county court for rehearing.

District Judge (County Court, Bristol): application for injunction refused (27 January 1995). His Honour Judge Batterbury (County Court) allowed the tenant's claim and dismissed the council's possession claim on the applicant's interlocutory application. Court of Appeal: appeal by the council dismissed (court considered itself bound by earlier authorities). House of Lords: appeal allowed [1998] UKHL 8; remitted for rehearing.