Brent v Botu

A court order must be obeyed while it remains in force. Acts lawfully performed under that order do not become unlawful retrospectively when the order is later set aside. Where possession has been lawfully enforced and a secure tenancy has subsequently been granted to a third party, setting aside the original possession order does not revive the former tenancy so as to create competing secure tenancies or a claim for breach of quiet enjoyment. A claim based on execution of the order is distinct from any claim to reconsider a money judgment for rent arrears.

The London Borough of Brent obtained an unsuspended possession order against the respondent tenant for rent arrears and enforced it by eviction. Before the possession order was set aside, Brent granted the premises to a third party under a new secure tenancy. The original order was subsequently set aside, but the third party remained in possession.

The respondent claimed damages against Brent for breach of the covenant of quiet enjoyment, arguing that setting aside the possession order revived his earlier tenancy. The county court upheld liability for part of the period and rejected liability for the earlier period. Brent appealed, and the respondent cross-appealed on the earlier period. The central issue was whether setting aside the possession order revived the former secure tenancy.

1. Brent’s appeal allowed; cross-appeal dismissed. The respondent’s claim for damages for breach of the covenant of quiet enjoyment failed.
2. A possession order remains valid and must be obeyed unless and until it is set aside, stayed or successfully appealed. Acts carried out pursuant to the order are lawful when performed and are not retrospectively converted into breaches of legal duty when the order is later reversed or set aside. This applied whether the order was set aside by the original court or altered on appeal.
3. The respondent’s secure tenancy had been brought to an end by the regular possession judgment and its execution by eviction. The subsequent grant of a secure tenancy to Mr Ahmed was lawful at its inception. Setting aside the original order did not render that tenancy null and void.
4. The contrary argument would produce two simultaneous secure tenancies over the same premises, carrying mutually contradictory rights. Mr Ahmed therefore had an immediate right to possession and the benefit of the covenant of quiet enjoyment. Brent could not concurrently owe the same obligation to the respondent in respect of the same premises.
5. Hillgate House Limited v Expert Clothing Service & Sales Limited was indistinguishable and supported the conclusion. Isaacs v Robertson confirmed the general principle that a court order must be obeyed until set aside. The observation in Governors of the Peabody Donation Fund v Hay that an order set aside was null and void concerned a different jurisdictional question and did not establish retrospective liability for acts performed under the order or invalidate the third-party tenancy.
6. The setting aside order could affect the money judgment for rent arrears, since the underlying liability remained open. That issue was distinct from the claim for damages based on breach of quiet enjoyment.

• Court of Appeal (Civil Division): Brent’s appeal from the Willesden County Court decision was allowed. The respondent’s cross-appeal was dismissed. Costs were awarded to Brent, with the stated legal-aid directions.
• Willesden County Court: His Honour Judge Hornby held Brent liable for breach of the covenant of quiet enjoyment for part of the period after the possession order was set aside, while rejecting the claim for the earlier period.