Payne v Cooper: CA 1958

An absolute possession order had been made against the statutory tenant, but, on later application to suspend, vary or discharge this order under section 4 of the 1923 Act, the statutory tenant obtained a further order postponing the date for possession by 28 days on condition that the tenant pay the arrears within that period. The order further provided (‘proleptically’) that ‘on such payment the order for possession shall be discharged’. The landlord challenged the court’s jurisdiction to convert an absolute order into a conditional order for possession.
Held: The provision in the 1923 Act could be seen as a ‘proleptic’ exercise of the power of discharge which the statutory wording provides. A further, separate application by the tenant after compliance with the conditions was therefore unnecessary. ‘As a matter of English, at first sight it might be said with force that it is only when the conditions have in fact been complied with that [the] power [to discharge or rescind] arises, and may be invoked’,
Lord Evershed MR said: ‘The last two lines of the subsection are: ‘and if such conditions are complied with, the court may, if it thinks fit, discharge any such order’. As a matter of English, at first sight it might be said with force that it is only when the conditions have been in fact complied with that that power arises, and may be invoked. In the present case it will be recalled that the judge combined all the operations into one order’.
Romer LJ explained that section 4(2) showed that the court could suspend execution or postpone the date for possession on terms ‘and that, if those terms are complied with, then the court may discharge or rescind the original absolute order’ and ‘the county court judge made in the present case . . [a] compendious form of order directing that on fulfilment of conditions, the original order should be discharged, instead of making an order imposing conditions, and then waiting to see if the conditions had been performed, and, if they had been performed, then making another order. I agree with the Master of the Rolls in thinking there is nothing wrong, or beyond the power of the court, in making an order in that compendious form.’ and ‘In my opinion, the meaning and effect of this judgment [the judgment for possession], when taken as a whole, and especially in view of the concluding paragraph, is that the defendant might remain on as tenant of the premises so long as he performed the conditions as to payment of the prescribed instalments in addition to the current rent; and that, on payment of the final instalment, the operation of the judgment would automatically cease. In other words, the judgment for possession was not intended to have an immediate effect, and would never indeed take effect at all provided that the conditions as to payment were fulfilled.’


Lord Evershed MR, Romer LJ


[1958] 1 QB 174


Rent and Mortgage Interest Restrictions Act 1923 4(2)


CitedSherrin v Brand CA 1956
The landlord had obtained a possession order against his secure tenant. The order was suspended, but the landlord then failed to enforce the order after the date and when the tenant had failed to comply with the terms of the suspension. The tenant . .

Cited by:

CitedKnowsley Housing Trust v White; Honeygan-Green v London Borough of Islington; Porter v Shepherds Bush Housing Association HL 10-Dec-2008
The House considered situations where a secure or assured tenancy had been made subject to a suspended possession order and where despite the tenant failing to comply with the conditions, he had been allowed to continue in occupation.
Held: . .
Lists of cited by and citing cases may be incomplete.


Updated: 10 May 2022; Ref: scu.278697