London Borough of Southwark v O'Sullivan

A court should not determine a preliminary construction issue where the facts needed to identify the contractual trigger and its legal consequences have not been found. The issue may prove academic, and deciding it on assumed facts can cause delay, expense and premature determination. A possession order should not be made while an unresolved issue may, if determined for the occupier, confer a right to a tenancy. The proper inquiry is whether a triggering event occurred, what that event was, and whether it had to occur before termination. The court made tentative observations on the tenancy condition, including the distinction between an accrued right and its remedy, but left construction to the County Court after fact-finding.

The Council granted Mrs Elizabeth O'Sullivan a weekly tenancy of a dwelling house. Following the breakdown of the relationship, she left, served notice to quit and sought homelessness assistance. Mr Florence O'Sullivan remained in occupation and claimed that Condition 3(1) entitled him to a tenancy if the relationship had permanently broken down.

The County Court tried preliminary issues as pure questions of law. It made an order for possession and accepted the Council's argument that a claim under Condition 3(1) had to be made before the tenancy expired. The appeal concerned whether the condition could be enforced after termination. The Court of Appeal identified unresolved factual questions about the relationship, domestic violence, and the possible triggering effect of requests for housing or a rent card.

1. Disposition. The appeal was allowed. Judge Gibson's possession order could not stand because an unresolved issue, if decided in Mr O'Sullivan's favour, might entitle him to a tenancy. The order therefore pre-empted the resolution of a material issue.
2. Premature preliminary issue. The Court of Appeal declined to decide the construction of Condition 3(1). The relevant facts had not been found and the construction issue might become academic. The court applied the warning in Tilling and Whiteman [1980] AC 1 that preliminary points decided on assumed facts can create delay, anxiety and expense. The case was a further example of the danger of poorly formulated preliminary issues.
3. Proper questions for determination. The phrase capable of enforcement did not identify the real issues. The court should determine: whether a triggering event occurred; what event constituted the trigger; and whether it had to occur before termination of the tenancy. Those questions included whether the wife's homelessness application or the husband's request for a rent card had triggered the Council's obligations.
4. Tentative construction observations. Lewison J observed that Condition 3(1) appeared to make the Council's duties arise when either party provided conclusive evidence of permanent relationship breakdown. The wording did not expressly require a separate application by the remaining partner. He also observed that an accrued right to a tenancy might be enforceable by specific performance, and that delay might affect the remedy without extinguishing the right. The condition was ambiguous about whether the remaining partner had to call for a tenancy or the Council had to offer one, and whether the six-month period applied to both obligations. No concluded view was expressed.
5. Final order. Paragraphs 1 and 7 of the order dated 5 May 2005 were set aside. Paragraph 5 of the order dated 22 October 2004 was discharged. The claim was remitted to the County Court for trial of all issues insofar as they arose after the facts had been ascertained.

• Court of Appeal (Civil Division): The appeal was allowed. The possession order was set aside in part, the order directing trial of the preliminary issues was discharged, and the claim was remitted for trial of all issues as they arose.
• Lambeth County Court: On 5 May 2005, following the trial of preliminary issues ordered on 22 October 2004, Judge Gibson made an order for possession after accepting that a claim under Condition 3(1) had to be made before the tenancy expired.