jis^cjJieglstrqiiTtLorne, Royal Courts of J u s t i c e

^ c t J i i J ^ . — "? f a d i n g ; — B e r k s . Friday. 15Uh Kovetcber«1964.

*\

K-^f-^^ Before:

THS i'JloTr^ Cy -Jrif; R 0 L . 3

LORD J L 3 T I C E j-iSArtSUis and

LUHJO JUoTaCii; DAViiSS

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 0 <5»gR SQPREME COURT OF JUDICATURE

nffTRT OF APPEAL

ffipppRAL FROM MR DISTRICT REGISTRAR THORNS, S i t t i n g a t t h e

p a t r i o t R e g i s t r y , Reading, B e r k s .

R o y a l C o u r t s of J u s t i c e , London
F r i d a y , 1 3 t h November, 1964.

Before :
THE MASTER OF THE ROLLS,
LORD JUSTICE PEARSON and
LORD JUSTICE DA VIES.

IN THE MATTER OF THE MARRIED '.TOKEN'S PROPERTY ACT 1882

BED WEEN:

GRACE MARY APPLETON (Petitioner)

'(Respondent)

v --

FREDERICK THOMAS CHARLES APPLETON (Respondent)

(Appellant)

(Transcript of t h e S h o r t h a n d N o t e s of The A s s o c i a t i o n of O f f i c i a l
S h o r t h a n d s i t e r s , L t d . , Room 3 9 2 , R o y a l C o u r t s of J u s t i c e , ILondon,
and Hoi 2 , New S q u a r e , L i n c o l n ' s I n n , London, W . C . 2 . ) .

THE APPELLANT appeared in Person.

MR CHRISTOPHER ILEA ( i n s t r u c t e d b y M e s s r s . Pitman & B a z e t t ,
of Reading) appeared f o r t h e Respondent (Petitioner).

JUDGMENT

1.
jgg j&STER OP THE ROLLS: Mr and Mrs Appleton were married on the
3rd August 1931 a t the B a p t i s t Tabernacle a t West Ham, when he
was 23 and she was22. They l i v e d t o g e t h e r a t v a r i o u s houses
until* on the 24th August 1962 - t h a t i s , a f t e r 31 y e a r s of
aarrlage - the wife l e f t the husband, who wasthen in the
afitrimonial home a t Ivy C o t t a g e , The S t r e e t , Woodhsta F e r r e r s ,
n
Chelmsford. She l e f t a note on the t a b l e Dog a t kennels
Chelmsford". On t h e 1 6 t h A p r i l of the following y e a r , 1963, she
took proceedlngsfor d i v o r c e a g a i n s t him, a l l e g i n g t h a t he had
been cruel to h e r . He put i n an Answer denying c r u e l t y , and
seeking r e s t i t u t i o n of conjugal r i g h t s . He said t h a t he d e s i r e d
that she should r e t u r n t o him and waswilling t o r e n d e r her
conjugal r i g h t s . Those proceedings a r e s t i l l pending and have
not yet come f o r h e a r i n g .
Against t h a t background t h e r e i s a d i s p u t e a s t o the
occupation and p o s s e s s i o n of the matrimonial home. The Divorce
Registrar has ordered the house to be sold and the proceeds to be
applied e n t i r e l y xor t h e w i f e ' s b e n e f i t . Mr Appleton a p p e a l s
In person t o t h i s c o u r t .
The f a c t s a r e t h e s e : The husband himself has not much
money. He i s a woodcarver - a craftsman - who does work, as he
told us, such as c a r v i n g c o a t s of a r m s . He makes h i s money i n
that way, working a t home. In 1958 the w i f e , Mrs Appleton,
bought a house a t 1 3 , Lawrence Road, Upton Manor, London. That
house was bought by t h e wife out of the proceedsof monies l e f t
to her by her mother i n a w i l l . I t was undoubtedly the w i f e ' s
house. I t was put i n her name, f o r the good r e a s o n , amongst
other t h i n g s , t h a t t h e husband had been bankrupt £BK some time
before and had not been d i s c h a r g e d . I t was intended t o be h e r s
In any e v e n t .
In t h a t house t h e husband did a g r e a t d e a l of work
by way of r e n o v a t i n g i t . So did the wife and the young son
of 14 or 1 5 . A f t e r t h r e e years the wife wanted t o move to the

2.
 country* So she sold t h a t h o u s e and, with th© p r o c e e d s , she
bought a c o t t a g e , Ivy C o t t a g e , The S t r e e t , Woodham F e r r e r s .
It was an old c o t t a g e , some 300 y e a r s o l d and i n a had c o n d i t i o n ,
jhe family - a g a i n the husband, the wife and the young son - did
a great d e a l of work i n r e n o v a t i n g i t . While t h e family were
A
s t i l l l i v i n g t h e r e , the wife on t h e 24th August 1962, l e f t .
Then, pending the d i v o r c e proceedings whioh I have mentioned, sbs
took &ut t h i s a p p l i c a t i o n under s e c t i o n 17 of the Matrimonial
Causes Act 1882, asking t h a t o e r t a i n items of f u r ^ n i t u r e be
declared her p r o p e r t y - and thehusband a g r e e s t h a t t h e y are her
B
property - but f u r t h e r asking t h a t the p r o p e r t y Ivy Cottage be
sold. The R e g i s t r a r has made an order for the s a l e of t h e
property f o r t h w i t h and for the whole of the p r o c e e d s t o be
paid to the w i f e .
Mr Appleton c l a i m s , In the f i r s t p l a c e , t h a t some
portion of the proceeds a t l e a s t should be h i s because of a l l the
work he did a t both houses'; and he a s k s a l s o t h a t the house
should not be s o l d f o r t h w i t h . There i s a shed In the garden
where he does h i s work upon which he i s dependant for h i s
livelihood. He says t h a t he i s r e a d y to pay r e n t for h i s
occupation.
I w i l l f i r s t d e a l w i t h the q u e s t i o n whether, i f the
house i s sold, Mr Appleton i s e n t i t l e d t o any p a r t of the proceeds.
The Registrar held hewas not e n t i t l e d to any p a r t . I tiiink
g the Registrar m i s d i r e c t e d himself i n point of law on t h i s r a a t t e r .
He said: "Although I found t h a t the Respondent" - t h a t I s the
husband - "undertook between o n e - t h i r d and one-half of t h e work
of renovating each of the two houses p r e v i o u s l y r e f e r r e d t o i t
»ould not, i n my o p i n i o n , have a s s i s t e d him In h i s c a s e to have
p demonstrated t h a t he had performed the g r e a t e r p a r t of the t a s k s .
It seemed q u i t e c l e a r t o me t h a t the Respondent had v o l u n t a r i l y
improved h i s w i f e ' s p r o p e r t y and such a n a c t i o n i n t h e absence of
evidence of any b a r g a i n or expressed I n t e n t i o n t o t h e c o n t r a r y
gave hira no i n t e r e s t i n e i t h e r of the p r o p e r t i e s or the proceeds
3.
 ooontry* So & 0 sold thathouse and, w i t h the proceeds, she
boogkt a o o t t a g e , Ivy C o t t a g e , The S t r e e t , Woodham F e r r e r s .
It »as an old c o t t a g e , some 300 y e a r s o l d and i n a bad c o n d i t i o n .
jk 8 family - a g a i n the husband, the wif - and the young son - did
ft great d e a l of work i n r e n o v a t i n g i t . While the family were
A

s t i l l l i v i n g t h e r e , the wife on t h e 24th August 1962, left.

Then* pending the divorce proceedings whioh I have mentioned, she
took t u t t h i s a p p l i c a t i o n under s e o t i o n 17 of the Matrimonial
Causes Act 1882, asking t h a t o e r t a i n items of f u r ^ n i t u r e be
declared her p r o p e r t y - and thehusband a g r e e s t h a t t h e y are her
B
property - b u t f u r t h e r asking t h a t the property Ivy Cottage be
sold* The R e g i s t r a r has made an order for the s a l e of t h e
property f o r t h w i t h and for t h e whole of the p r o c e e d s t o be
paid to the w i f e .
Mr Appleton c l a i m s , i n the f i r s t p l a c e , t h a t some
portion of the proceeds a t l e a s t should be h i s because of a l l the
work he did a t both h o u s e s ; and he a s k s a l s o t h a t the house
should not be s o l d f o r t h w i t h . There i s a shed in the garden
where he does h i s work upon which he i s dependant for h i s
livelihood. He says t h a t he i s r e a d y to pay r e n t for h i s
occupation.
I w i l l f i r s t d e a l with the q u e s t i o n whether, i f the
house i s s o l d , Mr Appleton i s e n t i t l e d to any p a r t of the proceeds.
The Registrar held hewas not e n t i t l e d to any p a r t . I think
g the R e g i s t r a r m i s d i r e c t e d himself i n point of law on t h i s m a t t e r .
He said: "Although I found t h a t the Respondent" - t h a t i s the
husband - "undertook between o n e - t h i r d and one-half of t h e work
of renovating each of the two houses p r e v i o u s l y r e f e r r e d t o i t
would not, i n my o p i n i o n , have a s s i s t e d him In h i s c a s e to have
p demonstrated t h a t he had performed the g r e a t e r p a r t of the t a s k s .
It seemed q u i t e c l e a r t o me t,nat t h e Respondent had v o l u n t a r i l y
improved h i s w i f e ' s property and such a n a c t i o n i n t h e absence of
evidence of any b a r g a i n or expressed i n t e n t i o n t o t h e c o n t r a r y
Save him no i n t e r e s t In e i t h e r of the p r o p e r t i e s or the proceeds
3.
 of s a l e . "
I t h i h k t h a t w a s an erroneous d i r e c t i o n i n point of l a w .
Aa Mr Appleton pointed out to u s , when he was doing the work i n
the house, the matrimonial home, i t was done for the sake of the
family a s a whole. None of them had any thought of s e p a r a t i o n
at that t i m e . There could be no occasion for any b a r g a i n to be
made as t o what wasto happen i n case t h e r e was a s e p a r a t i o n , f o r
it was a thing which no one contemplated a t a l l .
In those c i r c u m s t a n c e s , i t i s not c o r r e c t t o look and
g see whether t h e r e was any b a r g a i n i n t h e p a s t , or any expressed
intention. A judge can only do what i s f a i r and reasonable i n
the o ire urns t a n c e s . Sometlmesit has been put i n tiie c a s e s : What
terra i s to be implied ? What vrould the p a r t i e s have stipulated
had they thought about i t ? That isone way of p u t t i n g i t . But,
C asthey never d i d t h i n k about i t a t a l l , I p r e f e r t o take the
simple t e s t : What i s r e a s o n a b l e and f a i r i n t h e circumstances
as they have developed, seeing t h a t t h e y are circumstances which
no one contemplated before ? I should have thought that,
Inasmuch a s the R e g i s t r a r found t h a t the husband had done up t o
D about one-half of the work of r e n o v a t i o n , t h a t the husband
should be e n t i t l e d t o so much of the enhanced value of b o t h of
the p r o p e r t i e s aswas due to h i s work and m a t e r i a l s t h a t he
supplied. He should be given c r e d i t for a j u s t p r o p o r t i o n on
any r e a l i s a t i o n of t h e house. A percentage of t h e proceeds
E ought to go t o him commensurate t o the enhancement du© t o h i s
work in improving the p r o p e r t y or p r o p e r t i e s and g e t t i n g a b e t t e r
price on t h a t a c c o u n t . So I t h i n k t h a t the R e g i s t r a r m i s d i r e c t e d
himself on t h a t p o i n t . Mr Appleton i s e n t i t l e d t o a percentage
tf the proceeds of s a l e , i f and when tiie house i s sold.
But t h e next q u e s t i o n i s whether t h e house should be
sold f o r t h w i t h , Mr Lea, on b e h a l f of the w i f e , put forward the
contention t o us t h a t when the wife i s t h e owner of the house,
fcaich i s the matrimonial home, t h e n , even i f she d e s e r t s her

4.
 husband, she i s e n t i t l e d almost a s of r i g h t , t o have the
bouse so0& f o r t h w i t h . I But the case t o him: Suppose t h a t the
husband were a p r o f e s s i o n a l man, w i t h a c o n s u l t i n g rooai, o r , as
is the case h e r e , w i t h Mr Appleton having h i s workshop t h e r e .
Nevertheless, Mr Lea said t h a t when the wife l e a v e s fehe
A
matrimonial home, i f i t happens t o he her p r o p e r t y , she i s
entitled - almost e n t i t l e d a s o f r i g h t - t o have i t sold forthwith.
She can e j e c t the husband so a s t o s e l l i t w i t h vacant p o s s e s s i o n .
He r e l i e d for t h i s p r o p o s i t i o n on the r e c e n t oase of
a Rawliogsv* Rawlings, r e p o r t e d i n 1964 3 Weekly Law R e p o r t s , a t
page 294. That case was, t o my mind, a very d i f f e r e n t case
from t h i s . There was a d i v i s i o n of opinion i n t h e c o u r t a s t o the
way in which the d i s c r e t i o n should be e x e r c i s e d . But a l l the
court were of one mind i n holding t h a t , even when t h e wife i s
Q the owner, in any proceedings under s e c t i o n 1 7 , t h e R e g i s t r a r
has a d i s c r e t i o n whether or not t o order a s a l e , whether or not
to order p o s s e s s i o n , and i f so a t what t i m e .
The c o u r t has a d i s c r e t i o n . That i s t h e e s s e n t i a l
principle. I t i s not confined to proceedings under s e c t i o n 1 7 .
D It applies whatever be the c o u r t i n which proceedings a r e t a k e n .
Where a wife happens t o be t h e owner of the house, and seeks t o
evict the husband from t h e matrimonial home, t h e n the c o u r t has
a d i s c r e t i o n whether to order him out or n o t .
In t h a t c a s e , Rawlings v . Rawlings, i t a p p e a r s t h a t
E the husband wanted t o stay i n the h o u s e , t o the c r a c k of doom
almost, paying no r e n t and o f f e r i n g no sum i n r e g a r d t o i t , and
apparently doing nothing t o get her back, no proceedings for
r e s t i t u t i o n of conjugal r i g h t s or a n y t h i n g of t h a t k i n d . The
present case i s q u i t e d i f f e r e n t . Here the husband wants h i s
* wife back* He i s seeking i t by a p r o c e s s i n the c o u r t s , by an
order for the r e s t i t u t i o n of conjugal r i g h t s . He does not say
that he is e n t i t l e d to s t a y r e n t f r e e , without paying for h i s
occupation. He has t o l d t&ls c o u r t t h a t he i s ready t o pay a
reasonable r e n t .
 I t seems t o me t h a t i n the circumstances of t h i s oase no
order for s a l e should be made a t l e a s t b e f o r e t h e d i v o r c e
proceeding shave been heard and d e t e r m i n e d . The only r i g h t and
fair thing i s t h a t any sale should be postponed u n t i l after
that day and u n t i l a f u r t h e r o r d e r i s made by the c o u r t . I
A
hope t h a t arrangements can be made f o r t h e d i v o r c e proceedings
to be heard f i r s t , and t h e n t h e s e proceedings under s e c t i o n 17
be disposed of immediately a f t e r w a r d s . I should l i k e , if it
can be done, for t h e s e proceedings t o be r e f e r r e d t o the Judge
D who hearsthe d i v o r c e case so t h a t he can d e a l w i t h t h e s e
matters immediately a f t e r he h e a r s t h e divorce c a s e . He can then
deal with such q u e s t i o n s a s maintenance, whether the house i s
to be sold or n o t , and i f thehouse i s t o be s o l d , theproportions
in which theproceeds of s a l e a r e t o be d i v i d e d ; and f u r t h e r m o r e ,
C any contra-account on account of the occupation by the husband
of the house meanwhile.
In the c i r c u m s t a n c e s , I t h i n k the R e g i s t r a r e r r e d i n
two r e s p e c t s . He e r r e d i n saying t h a t thehusband was n o t
entitled t o any p r o p o r t i o n of theproceeds of s a l e , and In
D ordering t h e s a l e of t h e house f o r t h w i t h . I think theappeal
should be allowed anl the m a t t e r r e m i t t e d for d e t e r m i n a t i o n by
the R e g i s t r a r ; but I would p r e f e r , i f i t can be a r r a n g e d , for
it to be determined by the judge who h e a r s t h e d i v o r c e c a s e ,
after the h e a r i n g of the d i v o r c e p r o c e e d i n g s .
E LORD JUSTICE PEARSON J I agree.
LORD JUSTICE DAVIES: I would a l s o a g r e e .
Order: Appeal allowed w i t h c o s t s ; Respondent t o
have l e g a l aid t a x a t i o n .

6.
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Before; o m e n t a ^estu&Terff-
THE TASTER OF THE ROLLS
LORD JUSTICE JTEARSOIM and
LORD JUSTJ.CE DAVIES

MICHAEL rlURGAl;

v.

J.-.j JUORD KAYOR.ALDERhEl'j and CITIZENS c the

CITE OF BliihlHUHAh

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 jy fTggjgOBRMEE COURT OF JUDICATURE,
nflPRT OF APPEAJL
(^Appeal from Hla Honour Judge N l c k l l n , Birmingham County Court,

R o y a l C o u r t s of J u s t i c e , London
F r i d a y , 1 3 t h November, 1 9 6 4 .

Before ;
THE MASTER OF THE ROLLS,
LORD JUSTICE PEARSON and
LORD JUSTICE DAVIES.

MICHAEL HORGAN (Applicant)

(AppellanT)

THE LORD MAYOR, ALDERMEN and CITIZENS (Respondents)

(Respondents)
of t h e CITY of BIRitENOEAM

p (Transcript of t h e ST h o r t h a n d N o t e s of The A s s o c i a t i o n of O f f i c i a l
-'•'"•
Shorthandwr i t•e r s , I i' t^d . , ~Room -3~9-2 , -R- o y all C o u r t s of J u s t i c e ,
london, and No. 2 , New S q u a r e , L i n c o l n ' s I n n , London, W . C . 2 . ) .

MR M.K. HARRISON-HALL ( i n s t r u c t e d b y M e s s r s . F r e e l a n d & P a s s e y ,

of Birmingham: London a g e n t s , M e s s r s . Simpson, Palmer & Winder)
E appeared f o r t h e A p p e l l a n t (Applicant).
MjLAlAN FIETCHER ( i n s t r u c t e d by T.H. P a r k i n s o n , Town C l e r k ,
Birmingham; London a g e n t s , Messrs,, Sharj^e, P r i t c h a r d & Co.)
appeared f o r t h e R e s p o n d e n t s (Respondents).

JUDGMENT

1.
«HE MASTER OF THE ROLLS: Thie case raises a short point under
Section 16 of the Housing Act, 1961. That section provides:
"If it appears to a local authority that a house which, or a
part of which, is let in lodgings or which is occupied by
members of more than one family, is not provided with such
means of escape from fire as the local authority consider
necessary, the local authority may serve a notice requiring
works to be done so as to provide means of escape". Then, in
Section 17, there is a provision for appeal from the decision
of a local authority on this matter to the county court Judge.
We are concerned with a house, No. 1J+, City Road,
Birmingham. It is a, house in a terrace of houses. There is a
ground floor, a first floor and a second floor. It is let out
by Mr Horgan, the owner, in separate rooms to young men who
use them as bed-sitting rooms. On the first floor he lets off
six rooms to six persons; on the second floor, two rooms to
two persons. In many of the rooms there are gas fires.
The Birmingham Corporation inspected the house. They
gave directions as fco what should be done. They directed that
two escape hatches should be provided, one of them on the second
floor from the house, No. lij., through the next door house, No.
16, and another on the balcony. They also ordered smoke
screens to be put up on each landing of No. 1U. The smoke
screens were to prevent the smoke, if there were a fire down
below, sweeping up through the house, and also to prevent the
fire spreading.
The county court judge, on appeal to him, has found
that one'of the escape hatches was not necessary, namely, the
one on the. balcony. He also found that one of the smoke
screens, the one on the second floor, was not necessary. But
he did confirm the order of the Corporation as to one escape
hatch on the second floor and as to one smoke screen on the
first floor.
The owner appeals to this court about the smoke screen
2.
 on the first floor. He raises this point of law: He says that a
gmoke screen is not a 'means of escape' within Section 16. He
lifcene it to a safety curtain in a theatre. It is not a means
of escape. It is only a means of preventing the fire from
apreading.
A But Mr Fletcher made a very good answer. If there is a
fire 4n one of the rooms, the occupier of the room can make his
escape "by means of the common landing. He escapes from his own
room across the common landing to another part of the house and
thus gets away. If smoke came up and obscured the common landing
it would mean that that means cf escape would he blocked. But a
smoke screen would prevent smoke coming up, and thus it would
enable a person in a burning room to escape across the common
landing instead of being blinded by smoke.

It seems to me that Mr Fletcher's argument is right. A

C
smoke screen operates not only to prevent a fire spreading, but
it also operates ao as to keep the means of escape clear,
whether it be along a corridor or across a common landing. On
this ground, in my judgment a smoke screen is a 'means of
escape' within the section.
So I think that the judge was quite right in holding
that there ou^ht to be a smoke screen on the first floor. The
appeal must be dismissed.
Then the Corporation put in a cross-appeal. They said
that the judge ought also to have confirmed the order for a
smoke screen on the second floor. The judge said this about it:
"I find it difficult to believe two men will bother to keep it
shut. I think they will keep it propped open to secure some
ventilation, and I do not think it will be much use. I do not
think a smoke screen door on the second floor is necessary".
M
P Fletcher urges us to hold that that finding was erroneous.
1
have had some hesitation about this point; but on the whole
1
am not prepared to disturb the finding of the judge. I would

3.
 emphasise that it is only on the facts of this particular case
that I hold that view. It is no precedent for other cases.
The cross-appeal must "be dismissed.

LORD JUSTICE PEARSON: 1 agree, and want only to add one point
with regard to the question of construction. The local
A
authority have come to the conclusion that the house in
question is not provided with such means of escape from
fire as they consider necessary. The means of escape from
fire which can he provided is a secure passage from a room
that faces the second floor landing in the one case, or the first
B
floor landing in the other case, to a place of safety. The
local authority consider that the passage is not a safe and
adequate means of escape unless it is rendered proof against
smoke. If smoke intrudes, the passage will not be a safe or
r- adequate, or satisfactory, means of escape, because the people
trying to escape along that escape route may be asphyxiated
as they go. Therefore, in order to provide a satisfactory
means of escape in the sense of an escape route, a smoke-
proof screen has to be erected in order to keep the escape
E route free from 3moke.
It is that view which the local authority have taken;
and in my view it involves a true cons/truction and application
of the provisions of this section.
On the second point, I would only say that I entirely
E agree that on the facts of this particular case, having
regard to the view taken by the learned county court judge,
it would not be right for this court to interfere. I agree
that the appeal should be dismissed.

LORD JUSTICE DAVIES: I agree, an& have nothing to add.

F
THE MASTER OP THE ROLLS: The appeal will be dismissed. There is
a cross-appeal. That also will be dismissed.
Order: Appeal and cross-appeal dismissed; the
Respondents to havetev>=-th^rtiaof their costs.