Common law notice requirements

Thursday 2 February 2017

Gibson v Douglas [2016] EWCA Civ 1266, 8 December 2016

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Gibson v Douglas [2016] EWCA Civ 1266, 8 December 2016

Mr Gibson, the appellant, was the licensee of Mrs Douglas. He lived together with Mrs Douglas and her son Ian Douglas. As such the licence did not attract the protection of the Protection of Eviction Act 1977, since it was an excluded licence under s3A of that Act.

Mr Gibson alleged that on 9 January 2013, he was unlawfully evicted from the property by Ian Douglas, at a time when Mrs Douglas – who was suffering from the onset of some form of vascular dementia or Alzheimer’s – was in hospital.

The background to this was that Ian Douglas had attended the hospital to see his mother. His mother around this time had begun to make allegations against Mr Gibson, including allegations of violence. And upon seeing her, Mr Douglas established that she did not want to return to the property so long as Mr Gibson was there. Ian Douglas then contacted the police who attended the property. There was ‘something of a fracas’ between the police and Mr Gibson, who was forcibly ejected from the property and taken away in a police car. Ian Douglas was present at the time, though some way off.

Mr Gibson commenced proceedings in the county court against Ian Douglas for unlawful eviction. His claim was dismissed on the basis the Mr Gibson had only a very limited right to stay at the property as an excluded licensee and that Mrs Douglas had communicated to him, through the authorities, that she wished him to leave. Ian Douglas was found to be merely the ‘conduit’ for his mother’s wishes. The judge made no finding as whether Mr Gibson was given any notice prior to his eviction.

Mr Gibson then sought to appeal to the Court of Appeal. Permission to appeal was granted ‘limited to the question whether a licensee may lawfully be evicted without notice.’

The Court of Appeal dismissed his appeal. Given the judge’s factual findings that the physical removal had been affected by the police and the Ian Douglas was simply a conduit for his mother’s wishes, there was nothing to suggest Ian Douglas had done anything capable of making him a joint tortfeasor. As such the legal question, in respect of which permission to appeal had been granted, did not arise.

Nevertheless, Munby LJ (with whom Briggs LJ agreed) made the following obiter comments about the requirements of notice and the rights of the licensee in such cases:

  1. Leaving on one side the question of whether notice, written or oral, is required to terminate a licence (a question which, in the circumstances, I need not go into), it is clear law that, where the relevant period has not been specified by the licence itself, a licensee is entitled, following revocation of the licence, to whatever in all the circumstances is a reasonable time to remove himself and his possessions: see Minister of Health v Bellotti [1944] KB 298. With all respect to counsel who suggested otherwise, it is impossible to define the principle with any greater precision and undesirable that we attempt to do so.
  2. I add these observations. At one end of the spectrum, the unwanted visitor who presents himself at the front door, is asked in but then told to go, must leave immediately, taking the quickest route back to the highway and not delaying; so his period of grace may be measured in minutes: see Robson v Hallett [1967] 2 QB 939. On the other hand, a period measured in years may in some cases be appropriate: see, for example, Parker v Parker [2003] EWHC 1846 (Ch), where the Earl of Macclesfield was held entitled to two years to leave the ancestral home, Shirburn Castle, which he had been occupying as a licensee for some ten years. There was some discussion before us as to what the appropriate period might be in a case such as this. It depends on the circumstances. That said, I very much doubt that it would be a period measured in minutes, hours or even days. On the other hand, I can well imagine that it might typically be a period measured in weeks rather than months or years. Further than that I am not prepared to go.

Click here for the judgment.

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