Termination of Tenancies for Tenant Default - Law Commission

committed by the incoming tenant (the unlawful assignee). 76 This will allow a
landlord to take effective action to terminate a tenancy that has been unlawfully
assigned. The rationale for these separate cases has therefore been removed.
5.99 Case (4) addressed the situation in which a court would not, on the facts before
it, be minded to make a termination order, but considered that the tenant would
not in practice comply with any remedial action ordered. Rather than make an
order which would in practice be futile, the court could terminate the tenancy on
grounds that would otherwise not be sufficient to justify termination of the
tenancy. This remains an important consideration but we now believe that this
circumstance can be adequately addressed within the guidance that we intend to
give the court in deciding what order to make.
5.100 We are also no longer satisfied that the court should be required to make a
remedial order if it does not make a termination order. In many cases the court
will be minded to make a remedial order in these circumstances but to insist on
this as the default position in every case is, we now believe, unnecessarily
prescriptive.
5.101 We now recommend that, where the court is satisfied that tenant default has
been committed, it should have discretion to make any order under the scheme.
This discretion will not be fettered, in the sense that a particular case must be
established before any particular order may be made. But we accept the
suggestion that the court should be offered guidance as to the exercise of its
discretion, referred to by some consultees as a “structured discretion”. This
guidance should be of general application when the court is considering making
any order under the scheme and should not be restricted to the consideration of
one particular order.
5.102 In the light of consultation responses and our own research, we have discerned
two levels of guidance which we believe will assist the court to reach sound and
consistent decisions. The first level promotes the principle of proportionality. The
second level requires the court to take account of relevant factors. To this end we
provide a “statutory checklist” which the court will be expected to consider before
making any order.
Proportionate and appropriate
5.103 In its consultation response, the Committee of HM Circuit Judges criticised the
current law for failing to work consistently in a way which is seen to be “efficient,
proportionate and just”. We believe that these criteria are valuable, and that
proportionality, in particular, should be a cornerstone of the court’s discretion.
5.104 The Civil Procedure Rules (“CPR”) promote the “overriding objective” of enabling
the court to deal with cases justly. 77 This includes, so far as is practicable, dealing
with the case in ways which are proportionate to the amount of money involved,
the importance of the case, the complexity of the issues and the financial position
76 Draft Bill, sch 2, para 8(2).
77 Civil Procedure Rules, r 1.1(1).
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