Agricultural holding–Notice to remedy numerous breaches must specify a reasonable time for all to be remedied, or it will be valid in respect of none–Shepherd v Lomas (1963) interpreted in that sense–Decision and dicta of practical importance to landlords and their agents
This was an
appeal by Mr and Mrs Eric Albert John Davis, from a judgment of Judge Pratt at
Barnstaple County Court on July 11 1974 upholding the validity of notices to
remedy dilapidations at Saunton Barton Farm and East Saunton Farm served on the
appellants by their landlords, Norman Gordon Wykes, William Lloyd Baxendale,
Peter Baring and Ronald George Price, on January 26 1973.
Mr A Fletcher
(instructed by Parker, Garrett & Co) appeared for the appellants, and Mr D
Wood (instructed by Freshfields) represented the respondents.
Giving
judgment, BUCKLEY LJ said: This is an appeal from a judgment of His Honour
Judge Pratt of July 11 1974 on a case stated by an arbitrator for the opinion
of the court under the Agricultural Holdings Act 1968, as amended by the
Agriculture (Miscellaneous Provisions) Act 1963. The arbitrator submitted two
questions of law for the opinion of the court, with only one of which we are
concerned. It is this: on a true construction of section 24 (2) (d) of the
Agricultural Holdings Act 1948 and section 19 (1) of the Agriculture
(Miscellaneous Provisions) Act 1963, was a notice to remedy given on January 26
1973 invalid on the ground that the period specified in the notice was not a
reasonable period in which to remedy all of the breaches specified in the
notice, although it was a reasonable period in which to remedy some of the
breaches? The learned judge answered
that question in the negative, holding in effect that the notice was valid in
part, although invalid as to part.
The appellants
are yearly tenants of two farms in Devon known as Saunton Barton and East
Saunton Farms, comprising some 500 acres, under an agreement of May 29 1969.
The year of the tenancy ends on September 29. The respondents are the
landlords. I shall refer to the parties as ‘the tenants’ and ‘the landlords’
respectively. On January 26 1973 the landlords by their agent gave the tenants
notice in the prescribed form required by section 19 (1) (a) of the Act of
1963, requiring them to remedy within seven months from the date of service of
that notice the breaches of which particulars were set out in the notice. The
terminal date of that notice, which was August 26 1973 or there-about, was such
as to allow the landlords time to serve notice to quit on the tenants before
September 29 1973, so as to terminate the tenancy at September 29 1974. On
August 29 1973 the landlords served the tenants with notice to quit the farms
on September 29 1974 on the ground of their failure to comply with the notice
to remedy.
The tenants
did not dispute their liability to carry out any of the remedial works
specified in the notice to remedy. These works were listed in the schedule to
the notice to remedy, which is headed in accordance with the prescribed form,
‘Particulars of breaches of terms or conditions of tenancy.’ They were grouped under three headings:
first, ‘Dilapidations to hedges and banks,’ under which heading work was
required to be carried out upon nine separate hedges or banks; secondly, ‘Dilapidations
to field surfaces,’ under which heading work was required to be done in five
fields; thirdly, ‘Dilapidations to gates,’ under which heading work was
required upon gates in nine fields. By August 26 1973 the tenants had done all
the work required by the notice except that (1) they had not repaired all the
‘growth banks’ mentioned under the first heading, and (2) they had not fully
cleaned one field of couch.
The arbitrator
made two important findings of fact. He found that the period of seven months
specified in the notice to remedy was not a reasonable time in which to repair
all the growth banks, because according to the rules of good husbandry this
type of work was to be carried out during the winter months; and he found that
the period of seven months specified in the notice to remedy was a reasonable
time within which to eradicate the couch from the field, which was still to
some extent infested at August 26 1973. The tenants contend that in these
circumstances the notice to remedy was wholly invalid, because seven months was
not a reasonable period in which to carry out all the work required by it. The
landlords contend that the notice was valid, notwithstanding the first of the
two findings which I have mentioned, to the extent of all the works required by
the notice with the exception of the repair of the growth banks.
The question
to be determined is rightly formulated as a question of construction of section
24 (2) (d) of the Act of 1948 and of section 19 (1) of the Act of 1963. Section
24 (1) of the 1948 Act provides that where a tenant is given notice to quit an
agricultural holding he may give a counternotice to the landlord, whereupon,
subject to the provisions of subsection (2) the notice to quit shall not have
effect unless the Agricultural Land Tribunal consents to the operation thereof.
Subsection (2), so far as material for present purposes, was originally enacted
in the following terms:
‘The
foregoing subsection shall not apply where . . . (d) at the date of the giving
of the notice to quit the tenant had failed to comply with a notice in writing
served on him by the landlord requiring him . . . within a reasonable time or
within such reasonable period as was specified in the notice to remedy any
breach by the tenant that was capable of being remedied of any term or
condition of his tenancy which was not inconsistent with the fulfilment of his
responsibilities to farm in accordance with the rules of good husbandry, and it
is stated in the notice to quit that it is given by reason of the matter
aforesaid.’
By section 19
(6) of the 1963 Act, section 24 (2) (d) of the 1948 Act was amended by deleting
the words ‘within a reasonable time or.’
Section 19 (1) provides:
‘for the
purposes of paragraph (d) of section 24 (2) of the Agricultural Holdings Act
1948 . . . (a) a notice requiring the tenant to remedy a breach of any term or
condition must be in the prescribed form and must specify the period within
which the breach is to be remedied; (b) where such a notice in the prescribed
form requires the doing of any work of repair, maintenance or replacement, any
further notice requiring the doing of any such work and served on the tenant
less than twelve months after the earlier notice shall be disregarded, unless
the earlier notice was withdrawn with his agreement in writing; (c) a period of
less than six months shall not be treated as a reasonable period within which
to do any such work.’
Subsections
(2), (3) and (4) of that section enable the Lord Chancellor to make regulations
and to prescribe forms by statutory instrument, subject to annulment by
resolution of either House of Parliament. This power includes power to
prescribe different forms for the purposes of section 19 (1) (a). The form
appropriate to the present case was prescribed by the Agriculture (Forms of
Notices to Remedy) Regulations 1964. It was adopted in the present case. It is
headed: ‘Notice to tenant to remedy breach of tenancy agreement by doing work
of repair, maintenance or replacement.’
It provides for identifying the holding in respect of which the notice
is given and the tenants to whom it is addressed, and then proceeds in the
following terms:
‘1. I hereby
give you notice that I require you to remedy within (blank) months from the
date of service of this notice the breaches whereof particulars are given below
of the terms or conditions of your tenancy, being breaches which are capable of
being remedied of terms or conditions which are not inconsistent with the
fulfilment of your responsibilities to farm the holding in accordance with the
rules of good husbandry. 2. This notice requires the doing of the work of
repair, maintenance or replacement specified below. 3. This notice is given in
accordance with section 24 (2) (d) of the Agricultural Holdings Act 1948 and
section 19 (1) of the Agriculture (Miscellaneous Provisions) Act 1963. Failure
to comply with it within the period specified above may be relied on as a
reason for a notice to quit
attention is drawn to the notes following the signature to this notice.’
There then
follows the schedule, headed in the manner I have already mentioned, which
contains spaces for indicating the term or condition of tenancy alleged to have
been contravened in each case and particulars of the breach alleged and the
work required to remedy it. A marginal note is printed opposite to paragraph 1
of the notice relating to the words ‘within (blank) months.’ The note is in these terms: ‘This period must
be a reasonable period for the tenant to remedy the breaches and must in any
event be not less than six months.’ At
the foot of the space left to contain the schedule there are some explanatory
notes which I do not think it necessary for me to read.
The tenants
contend that the natural meaning of the statutory language is such that the
landlord must serve a notice allowing a reasonable period for all the work
specified in it to be completed. In this connection they rely by way of analogy
on decisions under the Conveyancing Act 1881, section 14, now superseded by the
Law of Property Act 1925, section 146. They contend that the language of those
sections is very similar to the language of section 24 (2) (d) of the 1948 Act
as originally enacted, and they say that if a landlord had served a notice
under that section requiring works to be done within a reasonable time without
specifying any particular period, a reasonable time would not have been held to
have elapsed until the expiration of a sufficient period to allow of the completion
of all the works required by the notice. They say that it would be illogical if
a different principle or construction were to be adopted in a case in which the
landlord chose to specify the period. They contend that the 1963 amendment
cannot have been intended to alter the effect of the words ‘within such
reasonable period as was specified in the notice’ drastically to the advantage
of the landlord. They say that it is for the landlord to decide what works he
shall require by the notice, and that it is for him to determine what period he
thinks will be sufficient to enable the tenant to complete all those works. In
this situation, Mr Fletcher says, the landlord is in control of the position
and is not exposed to any difficulty, embarrassment or hardship, while the
tenant is free, as he should be, to decide how and in what order he will tackle
the works which he is required to carry out.
Mr Wood, for
the landlords, has placed much emphasis upon the inconvenience which he submits
would arise from adopting the tenants’ argument. He points out that under the
Agriculture (Notices to Remedy and Notices to Quit) Order 1964, article 5 (3),
a tenant who does not contest his liability to do the required works need not
dispute the validity of the notice to remedy on any other ground until after a
notice to quit has been served. Suppose, in the case of a yearly tenancy
expiring on the September quarterday in each year, a landlord were to serve a
six months’ notice to remedy early in March to expire in the following September
before the end of the current tenancy year, the tenant, if he did not dispute
liability, would be under no obligation to assert the invalidity of the notice
on the ground that the period allowed was unreasonable until after the notice
to quit had been served. In the following September the landlord serves a
notice to quit and the tenant thereupon disputes the validity of the notice to
remedy. If the tenants’ contention here succeeds, upwards of six months have
been wasted and the landlord would be precluded by section 19 (1) (b) of the
1963 Act from serving a new notice to remedy until the following March. The
notice to remedy which he would then serve would have to allow a reasonable
period for the works to be done, which ex hypothesi would be more than
six months. He would consequently be unable to serve a notice to quit before
the next September quarterday. Instead of being able to terminate the tenancy
at about 18 months after his original notice to remedy, the landlord would be
unable to recover possession of the holding until some 42 months from that
date. The landlord cannot himself initiate arbitration upon the reasonableness
of his notice to remedy. Mr Wood says that this state of affairs would enable a
tenant to continue in default under his obligations with impunity.
In answer to
this Mr Fletcher says that in any ordinary case the alternative remedy of
forfeiture would at all times be available to the landlord, subject to the
possibility of the tenant obtaining relief from forfeiture. Then Mr Wood goes
on to contend that where a notice to remedy specifies a period which is
reasonable as regards some of the works comprised in the notice but
unreasonable as regards others, the notice is invalid in respect of the latter
works but valid in respect of the former, and can be severed so that the bad
does not infect the good. The tenant, says counsel, can at any time require
arbitration of the question to what extent the notice is a good one: he ought
not to be allowed to remain in default in respect of obligations in relation to
which a good notice has been served merely because the notice has also included
works for which no reasonable time has been allowed. Upon the language of
section 24 (2) (d), Mr Wood contends that the words ‘any breach’ should be
construed, as he says, distributively; so that the question to be asked in any
case would be whether the notice requires the tenant to remedy any breach
within a reasonable period, and, if so, whether the tenant has in fact remedied
that breach within that period. If the tenant has not done so, Mr Wood says
that the landlord is entitled to serve a notice to quit based upon that
default, whatever may be the position with regard to any other works specified
in the notice to remedy.
The learned
judge approached the construction of the subsection in this way: ‘On a strict
construction of the words quoted the period stated in the notice for remedying
the breaches (assuming there is more than one breach) is to be a reasonable
period for remedying all the breaches. Therefore a notice specifying a period
reasonable for remedying some but not all of the breaches is not a notice in
accordance with the section. But there is a less strict construction of these
quoted words, namely, that the period stated in the notice is to be a
reasonable period for remedying each of the breaches. Therefore, a notice
specifying a period reasonable for remedying some but not all of the breaches
is valid as regards the breaches for which a reasonable time has been given and
invalid as regards the others, ie the notice is not void in toto.’ Before discussing any authorities, I will
consider the language of the subsection. It is to be observed that the
condition precedent of an effective notice to quit under section 24 (2) (d) is
that the tenant shall have failed to comply with a notice. The words which
follow are words describing the notice, not words defining the condition. The
notice is to be one by which the landlord requires the tenant within a
reasonable period to remedy any breach by the tenant of any term or condition
of his tenancy. It is common ground that it is open to a landlord to include
more than one breach in one notice. So the words ‘any breach’ must be read as
equivalent to ‘any breach or breaches.’
It may be that the words ‘reasonable period’ should also be read as
equivalent to ‘reasonable period or periods,’ but that does not arise for
determination in this case. It seems to me that the use of the word ‘any’ in
this context merely signifies that the landlord may select what breach or
breaches he chooses to specify in the notice. By what, then, is the
reasonableness of the period to be measured?
It must surely be by reference to the length of time required to remedy
the breach or breaches in question. If more than one breach is required to be
remedied, it seems to me that the period must be such as will reasonably allow
time to remedy all the specified breaches. If this is right, a notice
comprising a number of breaches will not be such a notice as is described in the
subsection unless it allows a reasonable period within which to remedy all of
them. If the notice is not such as to satisfy the description in the
subsection, failure to comply with it cannot satisfy the condition for an
effective notice to quit.
That is the
construction which the learned judge described as a ‘strict construction.’ In arriving at that conclusion the learned
judge was largely influenced by the circumstance that he thought that the
strict construction would, for reasons which I have already indicated, throw a
burden upon a landlord and give a bonus to a tenant which seemed to him
unreasonable and unfair. The effect of these two constructions can perhaps best
be demonstrated by an illustration. Suppose that a landlord serves a notice to
remedy in which he complains of nine breaches which he requires the tenant to
remedy. Suppose that eight of those
remedied in less than 12 months. If the notice were to specify seven months as
the period within which the necessary works were to be done, would the notice
be entirely ineffective, or would it be effective in relation to the eight
breaches but ineffective in relation to the ninth? Upon the strict construction the notice would
be wholly bad. Upon the less strict construction it would be bad only as
regards the ninth breach. But now suppose that in a similar case any one of the
nine breaches could reasonably be remedied within two months, but circumstances
were such that all nine could not reasonably be remedied in less than 12
months. In these circumstances, could a notice requiring the tenant to remedy
the breaches within seven months be good?
Upon the strict construction it would not, but upon the less strict
construction it would seem that it would be wholly good, notwithstanding that
the tenant would almost certainly be unable to comply with it. The learned
judge seems to have considered that this would have occasioned a difficulty for
the tenant of a theoretical rather than a practical kind, because he could at
once apply for arbitration under article 5 of the order to have the question of
the reasonableness of the period determined; but if the reasonableness of the
period is to be measured in relation to individual breaches and not in relation
to all the specified breaches taken together, it is difficult to see how the
arbitrator could in such a case decide in relation to which breaches the notice
should be treated as valid and in relation to which it should be treated as
invalid.
We were
referred to cases in which it has been decided under the Conveyancing Act 1881,
section 14, that a notice requiring true breaches to be remedied, and also
requiring the tenant to remedy a matter in respect of which he was not in fact
in breach, was not invalidated by the latter circumstance (Pannell v City
of London Brewery Co [1900] 1 Ch 496), and that a notice which specified
certain breaches with sufficient particularity would not be invalidated by the
fact that other alleged breaches were referred to in the notice with
insufficient particularity (Fox v Jolly [1916] 1 AC 1). I, for my
part, do not find these authorities of great assistance in the present case.
The landlords here did not require the tenant to carry out any work which he was
not liable to do. It may be said that the landlords failed to give any
effective notice in respect of the dilapidations to hedges and banks because
seven months was not a reasonable period within which those works could be
completed, but this is not a defect of the same kind as reliance upon a
non-existent obligation, nor, for reasons which I will shortly explain, do I
think that it is a defect of the same kind as failure to specify alleged
breaches with sufficient particularity. There is in my opinion an important
difference between the Conveyancing Act 1881, section 14 (1), and the
subsection with which we are directly concerned in this case. As I have already
pointed out, the condition for an effective notice to quit under the latter
subsection is a failure on the part of the tenant to comply with a notice.
Under section 14 (1) of the Act of 1881 the condition precedent for forfeiture
of a lease is the failure of the lessee within a reasonable time after a notice
to remedy a breach complained of in the notice. Under that subsection the
question to be asked is whether a lessee has failed to remedy a breach and has
been required to remedy that breach by a notice given at a sufficient interval
before. What else may have been contained in the notice, whether justifiably or
unjustifiably, is irrelevant to the answer to that question. It follows, I
think, that a notice given under that section in respect of a number of
breaches is capable of operating as a separate notice in respect of each of
those breaches. This is not, however, in my opinion the case under section 24
(2) (d) of the 1948 Act.
In Price
v Romilly [1960] 1 WLR 1360, Diplock J (as he then was) had to consider
what amounted to compliance with a notice served under section 24 (2) (d). The
notice to remedy in that case had specified seven distinct works required to be
done. At the expiry of the period limited by the notice the tenant had not done
the work comprised in the first of these seven items. The tenant contended that
a partial failure to comply with the notice was insufficient to satisfy the
subsection. Diplock J disposed of this argument by saying: ‘It seems to me that
if he had not remedied it and remedied it completely, he has failed to comply
with the notice.’ In some closing
observations the learned judge referred to the fact that the arbitrator had
found as a fact that one of the seven breaches was not capable of being
remedied within the time stated in the notice. He mentioned this only to
negative an argument that it was not apparent whether the arbitrator had
considered whether or not the notice gave a reasonable time for doing the work.
It does not appear that the question whether this circumstance might have
invalidated the entire notice was canvassed. In Shepherd v Lomas
[1963] 1 WLR 962, Harman LJ at page 974 referred to this part of Diplock J’s
judgment, pointing out that if the argument of the tenant in Shepherd v Lomas
was right the notice in Price v Romilly would have been invalid;
but Harman LJ pointed out that the point was not taken before Diplock J.
In Shepherd
v Lomas the court was concerned with a case in which the landlord served
a notice to remedy in respect of a number of breaches of covenant, in
connection with some of which the landlord was under an obligation to provide
materials for carrying out the repairs, while with others he was under no such
obligation. The landlord did not deliver the necessary materials until too late
to make it possible for the tenant to carry out the required repairs within the
period limited by the notice. When the time expired, the tenant had carried out
none of the repairs for which the landlord was obliged to provide materials; he
had also failed to carry out much of the work for which the landlord was not
bound to provide materials. The landlord served a notice to quit and the case
went to arbitration under the Act. The arbitrator made this finding, viz: ‘That
the period of time specified in the notice was reasonable in respect of the
breaches for the remedy of which the landlords were not required to supply any
materials and was unreasonable with regard to those for the remedy of which the
landlords were liable to provide materials.’
The Court of Appeal reached the conclusion that, properly interpreted,
this finding meant that the period was reasonable in respect of the first group
(where no materials were required), and that it would also have been reasonable
in respect of the second group (where materials were required), provided always
that the landlord did his part and supplied the materials, but that in the
events that happened the period turned out to be unreasonable for the second
group because of the landlord’s failure to provide the materials. Lord Denning
MR said at page 970:
‘So
interpreting the finding, I do not think that the notice to remedy breaches was
void ab initio. It was good in the beginning because six months was
reasonable for all the breaches, not only the first group but also the second
group, seeing that it could fairly be assumed that the landlord would do his
part and fulfil his covenant to provide the materials.’
The Master of
the Rolls then made a passing reference to Pannell v City of London
Brewery Co and Fox v Jolly, and proceeded as follows:
‘So also it
seems to me that under the Agricultural Holdings Act, even though some of the
matters that are specified in the notice turn out not to be breaches, or the
tenant afterwards is excused from performing some of them, the landlord is
still entitled to rely on the others. It follows that in this case, although
the tenant was excused from remedying the second group of breaches (because the
landlords did not provide the materials) nevertheless he ought to have remedied
the first group. He was not entitled to ignore the whole notice and do
nothing.’
Towards the
end of his judgment, the Master of the Rolls said:
‘I would only
add this. In considering what is a reasonable time for any of the breaches the
arbitrator should always take into account the rest of the breaches specified
in the notice. It may often be quite reasonable for the tenant to postpone some
work until other work has been done: or to wait until he has men to spare for
the task; or to abide a suitable season. The time specified ought to be time to
do them all.’
Harman and
Pearson LJJ expressed similar opinions, the latter saying at page 974:
‘The effect
of that notice was not to impose any new obligation to remedy breaches, but to
prepare the way for the landlord to serve an effective and operative notice to
quit if the tenant failed
them–within a period of six months. That notice when it was served was a good
and valid notice. It was at that time reasonable to specify six months as the
period within which all those breaches had to be rectified.’
Having reached
the conclusion which they did about the arbitrator’s finding, the court did not
have to consider in that case whether, if the time specified in the notice had
not been a reasonable time for remedying some one breach referred to in the
notice, the notice to remedy would have been wholly ineffective; but, in my
opinion, it is an inescapable inference from their judgments that if they had
not interpreted the finding in the way in which they did they would have held
the notice to be bad and wholly ineffective. I am inclined to think that we are
bound by the decision in Shepherd v Lomas to adopt what has been
called the strict construction, but however that may be, I am of opinion that
that is the true meaning and effect of the subsection. On a proper reading of
the language the condition of a valid notice to quit is not that the tenant
shall have failed to remedy any breach alleged in a notice to remedy within the
period specified in that notice, but that the tenant shall have failed to comply
with the notice. Compliance with the notice to remedy must involve compliance
with all the legitimate requirements of it. It may be that if some alleged
breach was not in truth a breach of the tenant’s obligations, the fact that the
time for compliance specified in the notice did not allow a reasonable period
for the work required to remedy that alleged breach would not invalidate the
notice; but nothing of that kind arises here, where the tenant has not disputed
liability to do any of the required works. If that is the right view of what is
involved in compliance and failure to comply, it necessarily follows, in my
opinion, that the reasonableness of the period within which the tenant is
required to remedy the breach or breaches alleged in the notice must be judged
in relation to all the work required to be done. The same reasoning would, I
think, have applied before the 1963 amendment to a case in which the landlord
by a notice to remedy required a tenant to remedy a number of breaches within a
reasonable time without specifying any particular period for compliance. In
such a case the landlord could not, in my opinion, have served an effective
notice to quit on the ground of non-compliance until a reasonable period within
which to remedy all the breaches had elapsed or, perhaps, until it had become
manifest that the tenant would not be able to remedy all the breaches within
such a period from the date of the notice to remedy. It does not seem to me,
therefore, that the amendment can be said to have had any effect upon the true
interpretation of the words ‘within such reasonable period as was specified.’
Mr Fletcher
presented an argument to us in support of the strict construction based upon
the terms of the prescribed form of notice to remedy, and in particular upon
the marginal note to paragraph 1 of that form which I have read. I do not find
it necessary to deal with that argument, because in my judgment the true
interpretation of the subsection is clear without any assistance which might
otherwise have been available from the form or the note. So I need not consider
whether any such assistance could be invoked in this case. The subsection is
not in my judgment susceptible of the construction contended for by the
landlords without some violence to the language. Since the so-called strict
construction does not, in my opinion, do any violence to the language, and
since it leads, as it seems to me, to a reasonable interpretation and result,
it must, in my judgment, be preferred. For these reasons, I would hold that
this appeal succeeds. I would amend the learned judge’s order to declare that
the question referred to at the outset of this judgment should be answered
affirmatively, to the effect that the notice to remedy dated January 26 1973
was invalid on the ground that the period specified in it was not a reasonable
period in which to remedy all the breaches specified in the notice.
BROWNE LJ
delivered a short judgment in which he stated his agreement with the reasoning
of both Buckley LJ and MacKenna J, remarking that in his opinion the court was
bound by the decision in Shepherd v Lomas to come to its
conclusion, and adding: I have a good deal of sympathy with Mr Wood’s point
that if a tenant is guilty of two breaches, one of which could be remedied in
six months, but the other of which could not be remedied in less than twelve
months, it is unreasonable that the tenant should be allowed twelve months to
remedy the former. Mr Wood suggested that by a properly-drafted notice or
notices different periods could validly be specified in respect of different
breaches, but that point does not arise in this case, and I express no opinion
about it.
MACKENNA J
referred to section 24 (2) (d), observed that notice must be in writing and
must have been served by the landlord on the tenant, and continued: The notice
must state the landlord’s complaint. He is not limited to complaining of a
single breach. He may complain of breaches in the plural. The breaches must be
of terms and conditions of the tenancy, and the terms must be such that the
tenant’s observance of them would have been consistent with the rules of good
husbandry. And lastly, the notice must specify a period which is reasonable for
some purpose. The question is, for what purpose? Must it be, as the tenant in our case
contends, a reasonable period in which to do the whole of the remedial work
which the notice properly requires him to do, so that if it is too short for
that purpose the notice is bad? Or will
the notice be pro tanto a good one, if the landlord can prove that the
period was long enough for the tenant to remedy at least one of the stated
breaches, and that the tenant failed to remedy that breach, which is the
landlord’s contention?
During the
argument the meaning of the word ‘any’ in the expression ‘any breach’ was
discussed. I do not think that there is any doubt about its meaning. In this
context it means ‘every.’ Where the
notice mentions more than one breach, the tenant will be required to remedy
every one of those mentioned, and if he omits to remedy any of them within the
prescribed reasonable period, he will have failed to comply with the notice. As
the notice will require the tenant to remedy all the breaches complained of, it
would seem that the period specified must be reasonable for the whole of the
work. There are two different ways in which a period might be unreasonable.
First, it might not be sufficient to remedy all the breaches taken together,
though each breach could be separately remedied within the period. For example,
the notice might require a tenant to repair gates and to eradicate weeds–two
separate obligations–within a period of six months. If that period were long
enough to do either job separately, but not long enough to do them both
together, it would be unreasonable. Secondly, the period might not be
sufficient to remedy one breach taken by itself, though long enough to remedy
the other, as, in the case I have supposed, if the six months were enough for
the gates but not for the weeds. In this case, too, the specified period would
be an unreasonable one.
What then is
the effect of the landlord’s specifying an unreasonable period? The effect, in my opinion, is to make his
notice invalid. If the period is, in either of the ways I have described,
unreasonably short, the notice imposes no obligation on the tenant and he may
disregard it with impunity. The landlord argues that a notice stating several
breaches and specifying a single period for remedying all of them can be
treated as if it were a series of notices each stating a single breach and
specifying the same period for remedying it. If the period is reasonable for
remedying any one of the breaches, the composite notice is, it is argued, pro
tanto valid, and the tenant who has failed to comply with the valid part
loses the protection of the Act. I find this argument unacceptable. The notice
requires the tenant to remedy all the breaches. To treat it as if it
required him to remedy just one of them, or even some of them, is to change its
character. Answering the argument in other words, I would say that in deciding
whether the specified period is reasonable, it is impossible to disregard any
of the breaches which the tenant is required to remedy within that time. It is
impossible to treat the notice as if it only required him to remedy such
breaches as he reasonably can within the specified period.
This
conclusion is, I believe, supported by the judgments of Lord Denning MR and
Pearson LJ in Shepherd v Lomas. I must examine at a little length
the facts of that confusing case.
terms as those employed by Buckley LJ, concluding:] I have not found it easy to understand the
judgment of Harman LJ in this case. Mr Blundell’s argument which the Lord
Justice describes at p 972 as ‘formidable’ was, I think, the argument that the
six months given to do the 30 jobs was insufficient because of their number,
and this argument failed because it had not been raised before the arbitrator.
What the Lord Justice describes at p 974 as ‘Mr Blundell’s point’ must, I
think, have been a different argument from the earlier one, and was presumably
the argument that the time was too short for doing that part of the work for
which the landlord should have provided the materials. The Lord Justice in
rejecting this argument pointed out that in the earlier case of Price v Romilly,
where the point we are considering was not argued or discussed by the judge,
the landlord had succeeded, even though the time specified by him had been too
short for remedying one of the breaches, and it was clearly the Lord Justice’s
view that the decision was right on those facts. I find it difficult to
reconcile the two passages of Harman LJ’s judgment unless it was his view that
the landlord may fail where the time is unreasonably short for repairing all
the breaches together though long enough to remedy each separately (the
‘formidable argument’), but succeeds where the time is too short for remedying
one of them (‘Mr Blundell’s point’). If that is the explanation of the two
passages, I do not think that the distinction is a sound one.
I have
considered the cases cited to us under section 14 of the Conveyancing Act 1881,
I do not find that they give us any clear guidance in construing the 1948 Act,
and I do not refer to them. For these reasons I would allow the appeal and
amend the learned judge’s order as proposed by Buckley LJ.
The
appellants were awarded their costs of the appeal despite the wording of
paragraph 21 of the Sixth Schedule to the Act of 1948, ‘The costs of, and
incidental to, the arbitration and award shall be in the discretion of the
arbitrator who may direct to and by whom and in what manner the costs or any
part thereof are to be paid.’ Counsel on
both sides referred to the fact that the arbitration was still notionally in
progress, the proceedings on appeal being technically the decision of a case
stated by the arbitrator; to an agreement by which the costs in the county
court were to abide the decision of the main issue posed in the case; and to
the observation of the learned county court judge that in view of the
provisions in paragraph 21, that agreement would have to be mentioned to the
arbitrator. Buckley LJ stated, ‘As nobody asks for any order as to the costs in
the county court, we leave that to be dealt with by agreement between the
parties or as the arbitrator shall award.’
No order was made as to the costs of an interlocutory application by the
landlords for £750 to be paid into court as security for costs, which resulted
in a consent order for payment-in of £300, the costs of the application being
reserved. The landlords were given leave to appeal to the House of Lords.
