Agricultural Holdings Act 1948 — Sixth Schedule, para 6 — Whether arbitrator should have given consent to amendment or addition to statement of case — Following a ‘Tomlin Order’ in the Chancery Division, the tenancy of an agricultural holding was surrendered and the tenants served notice of intention to claim on the landlords — An arbitrator was appointed and statements of case delivered to him — Tenants’ particulars did not make clear whether claims were under section 13 in respect of fixtures or under section 47 in respect of improvements — Landlords’ statement contended that a claim under section 13 was not competent as the conditions required by section 13(2) were not satisfied and that any alternative claim for improvements was defeated by lack of evidence of landlords’ consent — Tenants then submitted to arbitrator a ‘supplemental statement of case’, accepting that a claim in respect of fixtures was not competent, but claiming in respect of improvements — Question then raised as to whether arbitrator should give consent to the addition — Landlords opposed consent and arbitrator refused it — County court judge on case stated upheld arbitrator’s refusal — Different view taken by Court of Appeal — Interesting contrast drawn between section 16(2) of Agricultural Holdings Act 1923, with its ‘Draconian’ one-stage procedure containing no provision for amendments or additions if claim did not give full particulars, and the 1948 Act two-stage procedure with preliminary notice of claim followed by statement of case and particulars, with provision for amendments or additions if arbitrator consented — Analysis of the well-known 1923 Act decisions in Re O’Connor and Brewin’s Arbitration and Spreckley v Leicestershire County Council — These old cases still provide guidance if it is applied not merely to sufficiency of original statement of case but to the case as amended or as subject to additions — It is not fatal if a party does not get everything right first time — Advice to arbitrators as to considerations which should influence them in deciding whether to consent to amendments or additions — Church Commissioners for England v Matthews misunderstood — No doctrine preventing fundamental change in amendments or additions — ‘As much relevance to this case as the principle of ‘No Popery” — Consent should have been given to supplemental statement of case — Appeal allowed
This was an
appeal from the decision of Judge Kellock in Spalding County Court on a case
stated by an arbitrator raising the question whether he should give consent to
the delivery by E D & A D Cooke-Bourne (Farms) Ltd, tenants of an
agricultural holding, High Park Farm and Low Park Farm, Aslackby, in the county
of Lincoln, of an amendment or addition to their statement of case, taking the
form of a ‘supplemental statement of case’, under paragraph 6(a) of Schedule 6
to the Act of 1948. The landlords, A R Mellows and H C O’Neill, executors of
the late E D Cooke, objected. The judge upheld the view taken by the arbitrator
that consent to the supplemental statement of case should be refused. The
tenants appealed.
J Knox QC and
V Chapman (instructed by Andrews, Stanton & Ringrose, of Bourne,
Lincolnshire) appeared on behalf of the appellants; Anthony Cripps QC and P M
Darby (instructed by Turner, Peacock) represented the respondents.
Giving
judgment, CUMMING-BRUCE LJ said: On October 8 1975 the landlord, described as
the executors of the late Mr E D Cooke, who had died in 1960, entered into a
tenancy agreement with the tenant, described as E D and A D Cooke-Bourne
(Farms) Ltd, whereby Bourne Farms Ltd became, under the agreement, tenants of
an agricultural holding, described as High Park and Low Park, to hold from
October 11 1975 on a yearly tenancy determinable on October 11 in any given
year for a rent of £6,000. There were elaborate but usual covenants by the
landlord and the tenant and the obligations of the landlords included obligations
for repair, and I refer in particular to clause 3 of the Second Schedule to the
agreement and clauses 4 and 5 of those agreements. By clause 6 of the agreement
the landlord was under no obligation to ‘execute repairs or replacements or to
insure buildings or fixtures which are the property of the tenant’. There was a
special provision inserted which read as follows:
It is hereby
agreed between the parties that the following buildings erected on High Park
Farm shall be regarded as tenants fixtures: The ten bay Dutch barn, workshops
and glasshouses and the grain and potato store with two fan tunnel equipment.
Also brick and asbestos open shed and workshop at Brickpits off West Road,
Bourne.
Whatever
effects that special provision may or may not have had, it clearly had a
relevance to the obligations of the landlord to repair, since these buildings
are to be regarded as tenant’s fixtures. It may well be that, in arriving at
the rent which the tenant was to pay during the period that he enjoyed the occupation
of the land with its buildings and fixtures, that rent may have been agreed
between the parties by reference to the provision in the special provision.
By the same
agreement, when one comes to the rights of the parties upon the determination
of the tenancy, the landlord accepted the obligation in clause 2.
On termination
of the tenancy to pay the tenant compensation:
(a) for the unexhausted value of the improvements
referred to in the Second and Third Schedules to the Act, subject to and in
accordance with the provisions of the Act,
(b) for fixtures paid for on entry at a fair
valuation and in respect of other fixtures subject to and in accordance with
the provisions of the Act.
The parties
did address their minds to the question of compensation on the termination of
the tenancy, and agreed that the landlord should be under an obligation to pay
for the value of improvements referred to in the Second and Third Schedules to
the Act in accordance with the provisions of the Act.
This agreement
succeeded an earlier oral tenancy. The background of the whole matter was that
Mr Cooke senior, the late E D Cooke who died in 1960, by his will constituted
trusts of the will and it emerged that there were disputes between the
beneficiaries which led to an action the title of which appears in the title to
the Tomlin Order at p 1 of the bundle. The action was compromised upon the
terms of the Tomlin Order which appears exhibited in the bundle.
It is not
necessary for me to refer at this juncture to other provisions of the agreement
which took its final form in the Tomlin
of ‘The Final Distribution’ and provide for the final distribution from the
trust fund as soon as practicable after the death of Mrs Cooke there are
careful provisions providing for the change in the voting rights in the company
‘in order to procure Bourne Farms Ltd would surrender its tenancy of the land
comprised in the trust fund without compensation being payable in respect
thereof, save as provided in paragraph 12.2 hereof.’ Paragraph 12.2 of the Tomlin Order provided:
Tenant right
and compensation for tenants improvements and tenants fixtures shall be payable
to Bourne Farms in accordance with the provisions of the Agricultural Holdings
Act 1948 (or any re-enactment thereof) . . .
and further
provisions for final distribution provided that
Andrew shall
have the option of purchasing the land comprised in the Trust Fund at the value
determined in accordance with paragraph 2 hereof.
In paragraph 2
the provisions for valuation had been set out, and the subsequent provisions
dealt with the exercise of the option. I think it is unnecessary to refer
further to the Tomlin Order. That was made on November 18 1976, that is to say
just over a year after the commencement of the tenancy under the subsisting
tenancy agreement.
In September
1978 Mrs Cooke died, which brought into practical operation the provisions for
the final distribution following the death of Mrs Cooke, and the tenancy in
accordance with those provisions was duly terminated by surrender on March 28
1980.
On April 3
1980 agents for the tenants served a notice under the Agricultural Holdings Act
upon the trustees of E D Cooke deceased and gave notice as follows:
I HEREBY GIVE
YOU NOTICE pursuant to sect 70 of the above Act of my intention to make against
you certain claims arising out of the termination of the tenancy of the above
holding or part thereof, the nature of which claims is set out in the Schedule
hereto.
THE SCHEDULE
|
Nature of claim |
Statutory provisions, Customs or term of Agreement |
Those are the headings. Under the nature of claim the endorsement
was ‘Tenantright Fixtures of the above Farms £60,000. Tenantright of the above
farms £15,000’. The statutory provisions: ‘Agricultural Holdings Act 1948 (or
any re-enactment there of) As provided under clause 12.2 of the statement in
the High Court of Justice Chancery Division’, namely the Tomlin Order.
That notice
was addressed to the trustees of the deceased. It was followed by a second
notice dated May 22. That notice recited again that it was a notice pursuant to
section 70 of the Agricultural Holdings Act 1948, and set out a different
schedule. Under ‘Nature of claim’, the following words: ‘Compensation for new
Improvements, viz: the erection of a grain and potato store in the field
Ordnance Survey Number 1 and the erection of a Dutch barn in the field Ordnance
Survey Number 42 the sum of £75,000.00’. Further, under ‘Nature of Claim’:
‘Compensation for Tenant-Right matters, viz: seeds sown and cultivations
fallows and acts of husbandry performed on the holding at the expense of the
Tenant.’
When one looks
at what was endorsed under the heading ‘Statutory Provisions . . .’ etc, it reads:
Section 47 of
the Above Act. Third Schedule or part I of the Fourth Schedule and Minute 12.2
of the Minute of Order of the High Court of Justice Chancery Division in the
matter of the Estate of Everitt Delanoix Cooke deceased and in the Matter of
the Trusts of the Will of Everitt Delanoix Cooke deceased dated November 29
1960 and in the Matter of the Judicial Trustees Act 1897 and in the Matter of
the Trustee Act 1925 between Joy Delanoix Richardson and Robert Kevin Andrew
Feltham (formerly Kevin Andrew Richardson) as Plaintiffs and Kate Elizabeth
Cooke and Andrew Delanoix Cooke and Paul Delanoix Tointon as Defendants
Then:
Section 47 of
the above Act and Part II of the Fourth Schedule and the above mentioned Minute
of Order
On July 2 the
arbitrator was appointed, and we are told that the practice was followed of
serving documents thereafter upon the arbitrator. Thus it came about that on
July 14 in the same year a tenant’s statement of case was served upon the
arbitrator. That statement of case reads as follows:
Statement
of Case for the Arbitrator
with
particulars on behalf of the Tenant
1. The Tenant, a Limited Company, was formed
on May 10 1951 and from that date assumed the Tenancy of the Holding on a
Verbal agreement only.
2. On October 8 1975 a written Tenancy
Agreement was drawn up and remained in force until it was terminated by the
provisions of an Order of the High Court of Justice, Chancery Division (Group
A) given by Mr Justice Templeman on November 18 1976. The date of termination
was March 28 1980.
3. With one exception every provision of the
aforementioned Order of the High Court has been discharged by mutual agreement
between Landlord and Tenant.
4. Under Clause 12(2) of the High Court Order,
the Tenant was to be paid for Tenantright and Compensation for Tenants
Improvements and Tenants Fixtures in accordance with the provisions of the
Agricultural Holdings Act 1948 (or any re-enactment thereof).
5. The Tenant claims Compensation in respect
of Tenants Fixtures situate at High Park Farm, Aslackby as Scheduled in the
Tenancy Agreement.
6. The Tenant claims the sum of £75,000
(SEVENTY FIVE THOUSAND POUNDS) being the value of the two buildings referred to
in paragraph 5 above.
7. The Tenant will produce evidence in support
of the sum claimed as compensation which fairly represents the value of the two
buildings to an incoming tenant.
8. The Tenant reserves the right to be legally
represented at the Arbitration Hearing if such representation should be
considered necessary to support his case.
Particulars
of Claim referred to above
Compensation
for Tenants Fixtures viz:
|
The 120-ft x 105-ft steel |
£60,000 |
|
The 180-ft x 30-ft steel |
£15,000 |
On July 28 the landlords served upon the arbitrator their statement
of case. It was submitted on behalf of the landlords by their experienced
agents, and I summarise it by saying that it began by reciting that the tenants
had claimed under section 70 of the Agricultural Holdings Act under a formal
claim dated April 3, which was attached to the landlords’ statement of case.
The landlords then pleaded their case in respect of tenants’ fixtures, which
would be a claim under section 13. Messrs Strutt & Parker recited the
provisions of section 13 and accurately pointed out that the provisions of
section 13(2) had not been followed, and therefore the section 13 claim could
not get off the ground. They appreciated, and drew the attention of the
arbitrator to, the fact that the section 13 claim, based as it had to be on a
notice by the landlords to purchase the buildings, could not arise on the determination
of this tenancy in the circumstances that had happened. The landlords’ case
continued by referring to an alternative method of considering claims for
tenant-right fixtures, namely to regard them as tenants’ improvements. They did
not in that passage of the landlords’ statement of case refer to the notice of
May 22. I know not the explanation and I do not think it matters. They did not
refer to it, but they set out that in so far as there was an alternative claim
for tenants’ improvements the landlords claimed to defeat such claim because
the tenants had not produced to them, the landlords’ agents, ‘any evidence that
a written landlords’ consent exists in connection with the improvements for
which compensation is claimed.’ They go
on: ‘We thus submit that any claim made by the Tenants in this matter, either
for Tenantright Fixtures or alternatively as Tenants’ Improvements is invalid:
and that under the legal requirements of the Agricultural Holdings Act 1948 the
Landlords are entitled to dismiss any claim for compensation.’
Then they went
on in their statement of case to ‘Assume an unconditional landlords’ consent,
compensation for New Improvements must be assessed in accordance with section
48 of the Act’. They recite part of that section, and then they plead a case on
the merits, leading to the conclusion that if there were a legal enforceable
claim under section 47 the amount of compensation would not exceed £35,000 as
compared to the claim for £75,000
those were the statements of case which the respective parties served upon the
arbitrator.
On October 14
the tenants’ agents submitted to the arbitrator the document entitled
‘Supplemental Statement of Case’ which read as follows:
9. The tenant
has read the Landlord’s statement of case dated July 28 1980.
10. The tenant
accepts that no compensation is due under s 13 of the Agricultural Holdings Act
1948.
11. The
tenant’s case is that compensation is due under s 47 of the Agricultural
Holdings Act 1948.
12. The
landlord’s written consent to the erection of the Corn and Potato Store Shed
was given on March 2 1965.
13. The
tenant will ask the arbitrator to infer that the landlord’s written consent to
the erection of the Dutch barn was also given in that the said barn was erected
with the assistance of a Government grant, a precondition of which grant is
production of evidence of landlord’s written consent to erection.
On November
23, we are told, the tenants wrote to the landlords giving them notice of their
application for leave to amend. The arbitrator fixed a preliminary meeting to
deal with the tenants’ application for leave to amend, and fixed that meeting
for February 9 1981. When that hearing came on before the arbitrator the
tenants sought leave, and, if they were given leave to file their supplemental
statement of case, leave to file a further amendment pleading that the tenants
had quitted the holding, the subject-matter of the claim for compensation. There
was an amendment for which the landlords were seeking leave on the same basis,
and it was agreed before the arbitrator and accepted by the arbitrator that if
he gave leave to the tenants to file a supplemental statement of case the
further amendment would follow and the landlords’ amendment to their statement
of case should also be allowed.
Those further
amendments, therefore, gave rise to no issue, and the only issue before the
arbitrator was whether he should give leave to file and serve the supplemental
statement of case.
The arbitrator
heard argument upon that issue. He understood counsel for the landlords to make
the following submissions:
19. The
Landlord appeared by counsel who submitted:
1. The
Tenant’s statement of case of July 14 1980 is the Statement of Claim and in
paragraph 5 is restricted by reference to ‘Tenants fixtures’ that is to say s
13 of the 1948 Act.
2. Tenant’s
counsel has already admitted s 13 is not a sustainable basis of claim in this
case.
3. The claim
for cultivations and acts of husbandry referred to in the Notice of Intention
to Claim dated May 22 1980 was dropped before the claim was made and the claim,
so far as the buildings are concerned, relates to tenants fixtures and hence a
s 13 claim.
4. Once the
buildings had been accepted by both parties as Tenant’s Fixtures, no claim for
compensation could be sustainable in respect of them under any other category
than as Tenant’s Fixtures.
5. To consent
to the Tenant’s request would give rise to injustice to the Landlords as they
would then have to come again for a two to three day and then a one to two day
hearing on two further separate matters.
6. Whilst the
sixth paragraph of the Sixth Schedule to the 1948 Act gives an arbitrator power
to consent to an amendment it follows that the arbitrator also has the power
not to consent, there is nothing automatic about it, the arbitrator should
decide what is just.
The decision
of the arbitrator, with his reasons, is set out in paragraphs 20, 21 and 22 of
his statement of case, which read as follows:
20. Although
not referred to by Landlord’s or Tenant’s counsel my subsequent researches
brought to light the case of Church Commissioners for England v Matthews
(1979) 251 EG 1074, [1979] 2 EGLR 6 which seems to have followed previous
precedents established in County Court judgments which prevents fundamental
changes to Statements of Case under the 1948 Act.
21. Having
considered in detail the arguments put forward at the preliminary hearing and
having read the legal research referred to and having done my own research I
conclude that following precedent I could not accept the fundamental amendment
to the Tenant’s Statement of Case and accordingly my Decision in writing dated
February 20 1981 indicated that I would refuse my consent to the admission of
the Tenant’s supplemental statement of case.
22. At the
preliminary hearing counsel for both Landlords and Tenant requested me to state
in the form of a special case for the opinion of a County Court the following
question of law arising in the course of the arbitration.
On that
reasoning the arbitrator refused leave to amend by filing the supplementary
statement of case and the further amendment, therefore, fell with it.
The tenants
asked for a case stated, for an opinion of the court. That case was stated,
from which I have already quoted, and the matter came before the learned county
court judge, who gave judgment and made an order on September 23 ordering that
there be judgment in accordance with the copies delivered to the advocates,
which does not reveal very much. That refers back, I suppose, to the note of
judgment which the learned county court judge signed on September 18 1981. In
effect, the learned judge upheld the decision of the arbitrator, on different
grounds, and gave leave to appeal.
With regard to
the decision of the learned judge, he took the view:
In this case,
subject to the fundamental point as to there being a valid Statement of Case to
be amended, I have no doubt that the amendments or additions proposed could be
effected without manifest or grave injustice. The Landlord has had it well in
mind from the beginning that these claims might be being made.
But he decided
the case had upheld the decision of the arbitrator on the ground that there was
no valid statement of case. So there was nothing to amend. That is to say, on a
scrutiny of the statement of case filed by the tenant, on the proper
understanding of that statement of case there was no valid statement of case
within the relevant legislation.
I now,
therefore, turn, before examining the reasoning of the learned judge, to the
scheme of the legislation, and I begin by referring to the 1923 Act, since it
was in relation to the statutory scheme under that Act that two important
decisions of this court were made. By the 1923 Act provision was made for
compensation to the tenant for various kinds of loss, compensation for
improvements on holdings, compensation for damage by gale, compensation for
disturbance. Section 16 provided the procedure for settling any question or
difference arising out of any claim by the tenant of a holding against a
landlord, or for any sums claimed to be due to the tenant from the landlord for
breach of contract. The provision which is relevant for consideration is
section 16(2), which reads:
Any such
claim as is mentioned in this section shall cease to be enforceable after the
expiration of two months from the termination of the tenancy unless particulars
thereof have been given by the landlord to the tenant or by the tenant to the
landlord, as the case may be, before the expiration of that period.
There is a
provision for extension in the proviso under a certain contingency.
When one
considers section 16(2), it is apparent that there is a statutory and mandatory
period within which the claimant is under an obligation to give particulars of
the claim, and there is no provision in subsection (2) or elsewhere in that Act
for any amendment or correction or addition to the particulars required by
subsection (2). Therefore, if the tenant failed to give particulars such as
were in contemplation by the subsection he was for ever precluded from
proceeding with his claim. That is the subsection which was under consideration
in this court in 1933 and 1934. In Re O’Connor and Brewin’s Arbitration
[1933] 1 KB 20 the matter for consideration was whether sufficient particulars
had been delivered pursuant to section 16(2), and the court decided that on the
facts in that case no sufficient particulars had been delivered and, therefore,
the claim was barred. Giving his judgment in that case, Slessor LJ referred to
a passage in the judgment of Warrington LJ in the case of Jones v Evans
[1923] 1 KB 12, where the lord justice said:
It is in
general sufficient if the document or the conversation which contains the
particulars gives an indication to the landlord or the tenant, as the case may
be, of the particular kind of claim which is going to be made in order that he
may have an opportunity of himself examining the subject matter and seeing what
evidence he will have to adduce, or what information he will have to give the
arbitrator.
Slessor LJ
approving that passage in the judgment considered the facts of the case before
him, and decided that on those facts the landlord had not by the particulars
given by the tenant been given the particulars to which he was entitled.
Slessor LJ went on:
Indeed, I
find great difficulty in seeing that he has really been given any particulars
at all. It is required under the Act that the landlord shall receive notice of
a claim, and that notice of a claim is to be made before the tenant had ended
the tenancy. What is called ‘particulars’ in this case appears to be no more
than a notice of a claim given after the tenancy has come to an end.
In the
following year, in the case of Spreckley v Leicestershire County
Council [1934] 1 KB 366, the court decided, reversing the decision of the
learned county court judge
that no
sufficient particulars had been delivered and, therefore, that the claim was
barred on the grounds: (1) that the notice of November 23 1931 was merely a
notice that a claim would be made and not a rendering of particulars, . . .
So there
again, the question was against the background of the statute which imposed
upon the claimant the obligation to particularise his claim sufficiently to
enable the opposite party to appreciate the nature of the claim and to
determine what evidence was required in order to meet it. The court decided on
the facts that there were no particulars which would sufficiently arm the
opposite party with the opportunity for understanding the nature of the claim
and for appreciating the evidence that it would be necessary to give in order
to meet it.
Those were the
cases which gave guidance as to the kind of particularity which was appropriate
to valid particulars complying with the statutory requirement laid down in
section 16(2) of the 1923 Act.
I have
referred to those cases because they evidently played a part, not only in the
subsequent decision of Church Commissioners v Matthews, but also
in the reasoning of the learned judge when he was considering the instant case.
By contrast, I
come to the scheme of legislation in the Agricultural Holdings Act 1948, which
incorporates provisions that first appeared in the Agriculture Act 1947, to
which it is unnecessary to make separate reference. In the 1948 Act, I refer
first to two provisions for compensation.
By section
13(1) it was provided
(1) Subject to the provisions of this section —
(a) . . . (b) any building (other than one in
respect of which the tenant is entitled to compensation under this Act or
otherwise) erected by him on the holding; . . . shall be removable by the
tenant at any time during the continuance of the tenancy or before the
expiration of two months from the termination of the tenancy, and shall remain
his property so long as he may remove it by virtue of this subsection.
(2) The right conferred by the foregoing
subsection shall not be exercisable in relation to a fixture or building unless
the tenant —
(a) has paid all rent . . . (b) has, at least one
month before both the exercise of the right and the termination of the tenancy,
given to the landlord notice in writing of his intention to remove the fixture
or building.
(3) If, before the expiration of the notice
aforesaid, the landlord gives to the tenant a counter-notice in writing
electing to purchase a fixture or building comprised in the notice, subsection
(1) of this section shall cease to apply to that fixture or building, but the
landlord shall be liable to pay to the tenant the fair value thereof to an
incoming tenant of the holding.
It is to be
observed that by virtue of that section it is provided that the tenant may give
notice of the intention to remove fixtures or buildings, but if after such notice
the landlord gives a counternotice electing to purchase the fixture or
building, then the landlord may purchase, but on such purchase shall be liable
to pay a fair value thereof to an incoming tenant of the holding.
I turn next to
section 47. By that section and the succeeding sections there is provision for
compensation for new improvements and for other matters.
47(1) The tenant shall, subject to the provisions
of this Act, be entitled on the termination of the tenancy, on quitting the
holding, to obtain from his landlord compensation for a new improvement carried
out by the tenant and for any such matter as is specified in Part II of the
Fourth Schedule to this Act: . . .
subject to
certain provisos which do not arise in the present case.
By section 48
the measure of compensation for long-term new improvements was enacted:
The amount of
any compensation under this Act for new improvement specified in the Third
Schedule thereto shall be an amount equal to the increase attributable to the
improvement in the value of the agricultural holding as a holding, having
regard to the character and situation of the holding and the average
requirements of tenants reasonably skilled in husbandry.
That measure of
compensation may be contrasted with the different measure of purchase price
imposed upon the landlord under section 13 if he elects to purchase.
I refer next
to section 50, which provides that where the landlord has refused consent there
is an alternative provision that the tenant may apply to the minister to
override the landlord and to grant a consent which binds the landlord.
By section 70
the Act sets out the scheme for the settlement of claims between landlord and
tenant on termination of tenancy, and specifies that disputes should be settled
by arbitration; it sets out the provisions relating to the appointment of an
arbitrator and has an important and quite new provision in subsection (2) of
section 70:
No such claim
as aforesaid shall be enforceable unless before the expiration of two months
from the termination of the tenancy the claimant has served notice in writing
on his landlord or tenant, as the case may be, of his intention to make the
claim.
A notice
under this subsection shall specify the nature of the claim, and it shall be a
sufficient specification thereof if the notice refers to the statutory
provision, custom or term of an agreement under which the claim is made.
It is to be
observed that that imposes upon the claimant the duty in pursuit of a claim
which has not been settled to give a notice in writing of an intention to make
the claim, and that notice is sufficient if it specifies the nature of the
claim by specifying the statutory provision, custom or term of agreement under
which the claim was made.
So, to use the
language which has appeared in some of the judgments given in this court in
relation to the 1923 Act Parliament, by subsection (2), has provided that the
first stage in pursuing a disputed claim shall be to give a notice which
specifies the class of claim as compared to the particulars of claim.
After such
notice, the procedure is enacted in the Sixth Schedule. After appointment of
the arbitrator, by paragraph 6 of the Sixth Schedule:
The parties
to the arbitration shall, within
what is now
by a subsequent amendment to the Act a period of 28 days
from the
appointment of the arbitrator, deliver to him a statement of their respective
cases with all necessary particulars and —
(a) no
amendment or addition to the statement or particulars delivered shall be
allowed after the expiration of the said 28 days except with the consent of the
arbitrator;
(b) a party
to the arbitration shall be confined at the hearing to the matters alleged in
the statement and particulars delivered by him and any amendment thereof or
addition thereto duly made.
Thus, in
contrast to the statutory procedure prescribed under section 16 of the 1923
Act, the 1948 Act prescribes a procedure materially different in two respects.
It became a two-stage procedure instead of a one-stage procedure. The two
stages were to be: a notice specifying the nature of the claim, followed by a
statement of case pursuant to paragraph 6 of the Sixth Schedule, which instead
of stating particulars has to state all necessary particulars. Secondly,
whereas under the 1923 Act the particulars served were final and did not
provide for amendment or addition of any description, by paragraph 6 of the
Sixth Schedule to the 1948 Act, whereas the statement of case had to state all
necessary particulars as compared to all particulars, it provided that those
particulars could be amended or added to provided that the arbitrator gave
consent. By subparagraph (b) to paragraph 6 the party to the arbitration is
confined at the hearing to matters alleged in the statement and particulars
delivered by him and amendment thereof or addition thereto duly made.
It seems to me
clear that the explanation of this important relaxation of the procedure
enacted in 1923 was that Parliament had appreciated by 1947 that an arbitration
under the Agricultural Holdings Act had characteristics arising from the
subject-matter which made the arbitration something importantly different from
arbitrations under the Arbitration Acts or from proceedings at law. In
particular, it was likely that a significant number of claimants would be small
people, landlords or tenants of smallholdings who, competent, no doubt, as
farmers, were likely to be ill-versed in the delicacy of pleading for the
purposes of a statutory arbitration. The Draconian character or the Draconian
effect of section 16(2) of the 1923 Act was recognised by Parliament as being
inappropriate to the kind of arbitration which was provided for in the
Agricultural Holdings Acts. Against that background it is easy to understand
how it was that Parliament, while imposing upon the claimant a duty to file not
only particulars, but more elaborately all necessary particulars within a
stated time, decided that there should be room for amendment or addition to
those particulars, provided that the arbitrator gave his consent to the
amendment or addition. The scheme was completed by the provision under
subparagraph (b) of paragraph 6 that at the arbitration the parties shall be
confined to the statement and particulars delivered and any amendment or
addition thereto duly made, that is to say with the consent of the arbitrator.
The relevance
of the observations in the judgments in the cases to which I have referred,
being cases under the 1923 Act, has to be very carefully considered in the
light of the novelty of the statutory scheme under the 1948 Act, because those
cases under the 1923 Act were concerned with section 16(2) of the 1923 Act,
which made it mandatory upon the claimant to complete his particulars without
any opportunity for addition or amendment. The courts decided that in that
legislation those particulars which alone were the particulars which fell for
consideration at the arbitration must be such as would enable the opposite
party to appreciate the nature of the claim, and to appreciate the evidence
that he should produce in order to meet that claim.
For the
purposes of the scheme in the Sixth Schedule, the guidance given in the
judgments in the cases to which I refer remains, in my view, an entirely appropriate
guidance, provided that the arbitrator focuses his attention on the sufficiency
of the particulars given by the claimant, not only in his original statement of
case but also in the statement of case which has been amended or been the
subject of addition on supplemental statements, leave to file which has been
the subject of consent by the arbitrator.
It seems to me
that it would be entirely misleading and quite wrong to apply the reasoning of
this court in the two cases to which I have referred to the statement of case
filed under the Sixth Schedule, rather than applying the reasoning of those
judgments to a statement of case, together with such amendment or addition as
an arbitrator thinks it right to consent to. The schemes of legislation are significantly
different in the ways to which I have already referred. It is now a two-stage
instead of a one-stage procedure; the second stage of that procedure does not
impose upon the claimant an obligation to get everything right the first time,
but an obligation to do his best to get everything right, provided that he can
get it right by amendment and addition to which the arbitrator gives his
consent.
So I come in
the light of the present statutory scheme to consider the judgment in this
case. First I refer to the decision of the arbitrator. It is quite clear to me
that the arbitrator took the view, expressed in paragraphs 20, 21, and 22 of
his judgment, that he was precluded by authority from exercising his discretion
because he took the view, in my view quite wrongly, that he had no power, in
the light of the guidance given in the county court in the case of Church
Commissioners v Matthews, to consent to the particulars. That view,
which I think he clearly expressed, is based on a complete misunderstanding of
the case to which he refers.
Church
Commissioners v Matthews is reported in
(1979) 251 EG 1074, [1979] 2 EGLR 6. What the case was concerned with was the
sufficiency of a landlord’s statement of case, for the purposes of paragraph 6
of the Sixth Schedule, and the point of the case was that the landlords had
delivered a statement of case which they never sought to amend, and the learned
county court judge decided that the purported statement of case hopelessly
failed to comply with the statutory requirement of a statement of case with all
necessary particulars. The statement of case there under consideration read as
follows:
If the
arbitrator finds that the above notice was valid, he will be asked to give an
award on the validity and/or quantum of 30 times of dilapidations to house,
buildings, cottage and land still outstanding between valuers.
The learned
county court judge, and I would respectfully submit correctly, took the view
that there was no particularity at all about the landlord’s statement of case,
and it therefore failed to comply with the provisions of paragraph 6. That case
is nihil ad rem to the issues in the instant case, and the arbitrator
was wrong in thinking that it would assist him, because the point in the case
was that the statement of case, without any application for amendment, was
hopelessly inadequate, and there was no conclusion that the learned county
court judge could reach other than that which he did reach. The problem before
the arbitrator was not the problem that faced the learned county court judge in
Church Commissioners v Matthews. It was a quite different
problem. Faced with an imperfect statement of case, as the arbitrator
undoubtedly was in the instant case, he had to ask himself ‘Ought I to permit
it to be made clear by amendment or addition as drafted by the landlords’ agent
in the application to file a supplemental statement of case?’ I find it impossible to see how in answering
that question there is any reason for thinking that any assistance would be
derived from the learned county court judge’s judgment in the case of Church
Commissioners v Matthews. But it is clear that the arbitrator
thought that he was bound, as he said: ‘Following precedent I could not accept
the fundamental amendment to the tenant’s statement of claim.’ That was a misconception, because he was not
bound at all by anything that appeared in the case that he was relying upon.
So the matter
came before the learned county court judge. It is to be observed that in his
note of judgment the learned county court judge began by expressing his
conclusion that he had no doubt that the amendments or additions proposed could
be effected without manifest or grave injustice, although there had been
apparently an argument to the contrary. On the facts, that finding of the
learned judge was clearly right.
The judge then
went on to consider another question, and he put it like this:
The landlords
allege that the amendments produce such a fundamental change of case that they
should not be allowed even if the statement of case is valid in itself. I find
this a difficult argument to accept as the tenant’s statement of case is so
vague in itself that a claim under section 13 or section 47 can be justified
under it.
This is the
real difficulty in this case. The rules in the Sixth Schedule to the Act lay
down that ‘the parties . . . shall, within 28 days from the appointment of the
arbitrator, deliver to him a statement of their respective cases with all
necessary particulars.’ The time-limit
is mandatory and inflexible. If this is not done the party is unable to produce
any evidence in support of his case.
Therein the
learned judge was wrong. The time-limit is not mandatory and inflexible,
because the time-limit in the sixth paragraph is a time-limit of 28 days for the
delivery of the statement with all necessary particulars, but there is
provision for amendment or addition to a statement or particulars with the
consent of the arbitrator. There is nothing mandatory or inflexible about the
scheme of the Sixth Schedule. Indeed, as I understand it, the reason for the
legislative change between the scheme in section 16(2) of the 1923 Act and the
scheme in the sixth paragraph of the Sixth Schedule to the 1948 Act was to
introduce a flexibility that was absent from the 1923 Act. The object of the
change was to enable the claimant to put his house in order. I quite understand
that there could be, hypothetically, a filing of a purported statement of case
which was so hopelessly at variance with the intention of a statement of case
within paragraph 6 that it could be said that there was nothing to amend. I
think it is unnecessary to elaborate the kind of hypothetical situations that I
have in mind. If the statement of case were merely frivolous or something of
that sort it might well be held that there was nothing to amend. But that is
not this case at all.
The notice
dated May 22 gave notice of a claim for compensation for new improvements under
section 47. As the judge found, it
extraordinary muddled statement of case which the tenant’s agents filed in
purported compliance with the duty of the claimant to give all necessary
particulars. It was an odd document. It used language that on its face would
leave a respondent in profound obscurity as to what kind of case the claimant
was really presenting. Paragraph 4 recited a provision of the Tomlin Order.
Paragraph 5 read:
The tenant
claims compensation in respect of tenants fixtures . . . as scheduled in the
Tenancy Agreement.
Paragraph 6
claimed £75,000, ‘being the value of the two buildings referred to.’ If the draftsman thought he was presenting a
claim under section 47 he would only have pleaded that measure of loss if he
had completely failed to appreciate the measure of compensation provided for
the purposes of a claim under section 47, because the measure of compensation
under section 48 is not the value of the buildings.
There was a
sufficient particularity of the physical subject-matter of the claim because two
buildings were sufficiently described and a figure was put against each of them
in respect of their value. I do understand that as long as the opposite party
was faced only with that document he could have been in great difficulty in
deciding what was the case that he had to meet.
The statement
of the landlords’ case does indicate that the landlords’ agents realised there
was confusion, because they pleaded reasons for negativing the section 13 claim
and then proceeded to plead an affirmative case in the event of the claim being
eventually regarded as a section 47 claim, as had been foreshadowed in the
notice of May 22. But all those difficulties were swept away as soon as the
supplementary statement of case was considered by the arbitrator or by the
landlords’ agents, because in the supplemental statement of case the tenants,
by paragraph 10, accepted that no compensation was due under section 13,
pleaded that the case for compensation was under section 47, and pleaded that
the landlords had given written consent for the erection of the corn and potato
shed, and pleaded the facts relied on as leading to an inference of consent by
the landlords to the erection of the Dutch barn. That was still imperfect and
defective, because they still failed to plead that the tenants had quitted the
holding. That was the subject-matter of the further supplement, which everybody
agreed should be allowed if the supplemental statement of case was consented to
as an amendment or addition.
For my part,
once the supplemental statement of case is scrutinised it clears up all the
difficulties arising from the muddle of language and confused thinking in the
statement of case originally filed; and faced with the statement of case, plus
the supplemental statement of case, a respondent would have no difficulty in
appreciating the nature of the tenants’ case, the particulars that describe
that case, and in mobilising his resources by way of evidence in order to meet
it. When the two are read together, all the difficulties are swept away. If the
amendment is allowed, the statement of case thus amended and added to, with the
further addition to which I have referred, will comply completely with the
prescribed requisite of pleading all the necessary particulars.
In this court
I think it is unnecessary to dwell longer on the question of whether those
amendments could have been consented to without injustice, because I find it
quite impossible to apprehend any injustice or any difficulty confronting the
respondents that could not adequately be dealt with by an adjournment, if any
adjournment were necessary, and by costs if costs were thrown away. I say
adjournment if any adjournment were necessary because the appointment for the
arbitrator in February was only an appointment for the purpose of deciding a
preliminary point, namely consent to the amendment, and as far as the
information before this court goes no date for the arbitration on the merits
was ever fixed.
So I come to
the reasons relied upon by the learned judge as the basis of his decision in
upholding the determination of the arbitrator to refuse his consent. In my
view, the error into which the learned judge fell is manifest on reading the
last two pages of his note of judgment. He was misled by the cases of O’Connor
v Brewin and Jones v Evans into thinking that faced with
an application for leave to amend it was appropriate to look at the defective
statement of case to decide whether it by itself afforded all necessary
particulars, and on reaching that decision the judge evidently thought that he
was precluded from giving leave to amend or that it would be wrong to give
leave to amend. But that reasoning was based on a misapprehension of the scheme
set out in the 1948 Act. This two-stage scheme, culminating in a statement of
case which may be amended or added to with the consent of the arbitrator, has
this effect: on an application to amend ordinary considerations of justice and
fairness make it appropriate to amend, if after amendment the respondent will
know sufficiently the particulars of the case that he has to meet. In such a
situation, leave to amend should ordinarily be granted. The consent should
ordinarily be given. It is manifest that when the Sixth Schedule expressly
enacted the power to amend or add, Parliament contemplated that the statement
of case first filed would be defective in some respect. Otherwise there would
be no point in seeking leave to add necessary particulars. The mere fact of the
absence of all necessary particulars in the original statement of case cannot
itself be a ground for refusing consent to an attempt to remedy the deficiency.
As I
understand it, if the notice given on May 22 is read with the statement of
case, together with the amendments and additions sought to be made, all the
requirements of the Sixth Schedule to the 1948 Act would be amply satisfied.
For those reasons I would, respectfully, reverse the learned judge’s decision
and state that the arbitrator was wrong in refusing his consent and that the
judge was wrong in upholding his decision.
Two other
points arise for mention. Mr Cripps drew the court’s attention to the familiar
case of Gray v Ashburton (Lord) [1917] AC 26 which brought home
the point that an arbitration under the Agricultural Holdings Acts has
characteristics which differentiate and distinguish it from an arbitration
under the Arbitration Acts or an action at law. So that, as was held in that
case, in their Lordships’ House, the way in which the arbitrator under the
Agricultural Holdings Act exercised his discretion in relation to costs was not
bad because he did not follow the practice of the High Court in relation to the
judicial exercise of discretion as to costs in the High Court. But, having said
that, I am unable to discover in the guidance in the speeches in their
Lordships’ House any assistance for the purpose of deciding the question before
this court, which is whether the arbitrator and the learned county court judge
were wrong in law in the decisions which they respectively reached.
Another point
was raised by Mr Cripps which turned on the effect of a special provision which
was a provision of the tenancy agreement of October 8 1975 in relation to the
obligations of the landlord. That special provision stated:
It is hereby
agreed between the parties that the following buildings erected on High Park
Farm shall be regarded as tenant’s fixtures: The ten bay Dutch barn, workshops
and glasshouses and the grain and potato store with two for tunnel equipment.
Also brick and asbestos open shed and workshop at Brickpits off West Road,
Barnes.
Mr Cripps’
argument was that, because those buildings had been the subject of that
agreement, they should be regarded as tenant’s fixtures, so that that agreement
in some way precluded the tenant from exercising his right to claim for new
improvements. This is a very puzzling submission in the light of clause 2(1) of
the tenancy agreement, which provided that:
On the
termination of the tenancy to pay to the Tenant compensation: (a) for the
unexhausted value of the improvements referred to in the Second and Third
Schedules to the Act, subject to and in accordance with the provisions of the
Act, (b) for fixtures paid for an entry at a fair valuation and in respect of
other fixtures subject to and in accordance with the provisions of the Act, . .
.
In spite of Mr
Cripps’ argument I remain unable to follow how he could submit successfully
that the special provision which I have recited could possibly have the effect
of negativing or modifying or reducing any claim of the tenant for unexhausted
value of the improvements without meeting the difficulty provided for by
section 65 of the 1948 Act, which expressly provides that contracting out is not
permitted. The grounds that he submitted suggesting a special agreement to the
contrary seem to me difficult to sustain.
For those
reasons, I would reverse the order of the learned county court judge, and I
would move that consent to this amendment should have been given by the
arbitrator because nothing in the facts recited in the case stated by the
arbitrator could be consistent with any just determination of the application
for leave to amend, save consent. There is, therefore, to my mind, no room for
sending the case back to the arbitrator, because the facts stated by the
arbitrator point only to one correct legal conclusion, which is that consent
should be given to the amendments sought. I would allow the appeal.
Agreeing,
TEMPLEMAN LJ said: I agree that there are no grounds upon which consent to the
additions and amendments to the statement of case sought by the tenants could
properly have been withheld. But as the arbitrator and the judge in their
different ways have gone sadly astray in construing and applying the relevant
provisions of the Agricultural Holdings Act 1948, I will as shortly as possible
endeavour to give my reasons.
On May 22 1980
the tenants served on the landlords a notice that they were seeking under
section 47 of the Act compensation for new improvements identified as the
erection of a grain and potato store in OS No 1 and the erection of a dutch
barn in OS 42 on the holding known as High Park Farm and Low Park Farm,
Aslackby, in the County of Lincoln, in the sum of £75,000. Nothing could be
plainer or clearer. However, the tenants’ statement of case which followed was
defective. First, the statement of case dated July 14 1980 did not refer either
to section 13 or to section 47 in express terms. So far as the landlords were
concerned section 13 was out, because section 13 can come into play only if the
landlords had elected to purchase the fixtures in question, and the landlords
above all knew that they had not made any such election. Secondly, the
statement of case gave the wrong measure of damages. But that did not affect
the landlords, who could prove and give evidence of the right measure of
damages. Thirdly, the statement of case did not specify the date of quitting.
But it did give the date of termination of March 28 1980, which was the same as
the date of quitting, and it does not seem to me that the landlords were in any
difficulty, as they presumably knew as much as the tenants; and the arbitrator
waiting in the wings could always be enlightened by both of them. Fourthly, and
more importantly, the statement did not allege or give particulars of the
landlords’ consent, which is a prerequisite to an entitlement to compensation
under section 47. Therefore, if the landlords chose to challenge the tenants on
the question of consent — and at that stage nobody knew whether they would or
would not — and if, that consent being challenged, the tenants’ statement of
case was not amended, then clearly the tenants would be bound to fail in their
application.
That this was
all clear to the landlords appears from the landlords’ own statement of case,
dated July 28 1980. First of all, they dealt with a possible claim under
section 13, which in my view was an unnecessary elaboration, but understandable
in view of the difficulties in the tenants’ statement. Secondly, they dealt
with the tenants’ failure to allege and prove that the landlords’ consent had
been given for the purpose of section 47. They took the point, and the point
being taken was good so long as the tenants’ statement of case remained
unamended. Then, no doubt feeling the possibility that the tenants might wish
to amend, no doubt feeling in their bones that there might be some possibility
that amendment might be allowed, the landlords’ statement of case very
efficiently and in great detail dealt with the merits of the application for
compensation under section 47, ending with the conclusion that the compensation
payable to the tenants could not exceed £35,000.
When the
landlords’ statement of case was received by the tenants, or when for some
other reason the tenants woke up, they realised the defects in their original
statement of case, and so they applied for additions and amendments. On
November 17 1980 the landlords received the tenants’ supplemental case in which
the tenants proposed to make additions and amendments to their statement of
case which would repair all the defects which I have mentioned in their
original statement of case. In particular, the tenants supplied the necessary
particulars with regard to what they said was the landlords’ consent given for
the purposes of section 47. At that stage, the landlords had a choice. They
could either go along to the arbitrator and say ‘We consent to your making the
order which the tenants seek’, or they could choose to oppose. They chose to
oppose and that is the reason we are here today. I say that, not to blame them:
it was a choice perfectly open to them and they took it.
The arbitrator
on February 21 1981 gave two reasons for refusing to consent to the tenants’
application to repair the defects in their original statement of case. The
first reason he gave was:
After
consideration of legal argument and accepting that the Tenancy Agreement
clearly scheduled both buildings in question as Tenants Fixtures, I concluded
that no claim for these items under section 47 of the Agricultural Holdings Act
1948 could possibly be sustained.
In the first
place, that conclusion as a matter of law on the construction of the tenancy
agreement was quite wrong. In the second place the arbitrator was not being
asked to construe the tenancy agreement or the claim; he was being asked to
allow an amendment. Then the arbitrator states in paragraph 21 that his
researches had established ‘County Court judgments which prevent fundamental
changes to Statements of Case under the 1948 Act.’ There is no trace in the Act of any reference
to fundamental changes, and one reason why the arbitrator may have gone wrong
is that he entirely failed to set out and consider the perfectly simple words
of paragraph 6 of the Sixth Schedule, which told him what he ought to be doing.
The principle of ‘no fundamental change’ has as much relevance to this case as
the principle of ‘No Popery’. However, those were the reasons given by the
arbitrator, and so the parties, not unnaturally, went along to the county court
judge.
The county
court judge was not impressed with the arbitrator’s reasons, and he considered
what attitude the arbitrator should have taken. In the first place, and quite
correctly, as my lord has pointed out, he said: ‘I have no doubt that the
amendments or additions proposed could be effected without manifest or grave
injustice. The landlord has had it well in mind from the beginning that these
claims might be being made.’ But then
the learned judge proceeded, so far as I can see, without applying his mind to
the exact words of paragraph 6 of the Sixth Schedule with which he ought to
have been concerned. He began to point out defects in the original statement of
claim. He said: ‘I see that there is no reference to either section 47 or
section 13 in it.’ That is precisely why
the tenants sought an amendment, and it is no answer to a request for an
amendment to say that the original document was wrong and to knock out the
amendment because of the defect in the earlier document. He said that the
tenants’ original statement of case would leave any landlord in a state of
confusion; but the object of the tenants’ amendment was to remove the state of
confusion and make everything clear to the landlords to whom, as I have said,
it was already pretty clear in the first place. It cannot be right to refuse an
amendment because an amendment is necessary.
In my
judgment, one simply has to look at the words of paragraph 6 of the Sixth
Schedule as amended. Parliament has provided that a claimant shall deliver a
statement of case with all necessary particulars within 28 days from the
appointment of the arbitrator. Parliament has recognised that the draftsman of
the statement of case may be fallible, whether he be farmer, bailiff, chartered
surveyor, solicitor or counsel. Parliament in its wisdom has given the
draftsman an opportunity to repent. He can repent at will within the 28 days,
because the paragraph goes on: ‘No amendment or addition to the statement of
particulars delivered shall be allowed after the expiration of the said 28
days, except with the consent of the arbitrator.’ So that if within that 28 days the draftsman
has a rush of commonsense to the head and realises that he has left out a
necessary particular, he can rapidly fill in the gap. Or, if he has another
rush of commonsense and realises that he has got it wrong and that the
statement needs amending he can do so. Parliament in its wisdom has realised
that people do not necessarily come to their senses within a fixed limit of 28
days. So Parliament has given the draftsman another chance of repenting: after
the 28 days he can amend with the consent of the arbitrator, and he can go
along and say ‘I have made a mistake. I have left this out. I have put this
wrongly. I have not given the necessary particulars, and now I want to do
so.’ If the arbitrator and the learned
county court judge are
not going to help you out of your difficulty.’
That is not the object of the power given by that paragraph; that is not
the object of requiring the consent of the arbitrator. The object is to enable
the arbitrator to allow an amendment or an addition to be made, and the reason
that his consent is required and can be refused is simply this. That he has to
say to himself: ‘What about the poor landlord?
Is he going to be any worse off than he would have been if the amendment
had been incorporated in the original statement of case?’ It is no good the landlord saying: ‘Oh, but if
you allow this amendment the tenants might be able to get £35,000 out of
me.’ The £35,000 does not become payable
because of the amendment. It becomes payable because the necessary conditions
are satisfied, if they are satisfied, which Parliament has laid down for the
payment of £35,000. But, of course, if the landlord is going to be in any worse
position as a result of the amendment than he would have been if it had
originally been in the statement of case, then the arbitrator may pause. If he
finds that since the original statement of case by lapse of time or because the
landlord has altered his position or for some other reason it would be unfair
on the landlord to impose the amendment upon him, then the arbitrator has power
to refuse consent. But if the answer is, as it is in the present case, that the
landlord is no worse off, if all these amendments had been put in the original
statement of case he would not have been any better or worse off, then consent
ought to be given to the amendment. Although there may be some difficulty in
knocking sense into the Agricultural Holdings Act, we have not yet got to the
stage where arbitrators and county court judges can foist on the Act the kind
of machinery that is more appropriate to the ages of Lord Eldon and the
Circumlocution Office than it is to the twentieth century. The object and
proper application of paragraph 6 of the Sixth Schedule are quite clear and I
hope that there will be no difficulty in the future. Amendments ought to be
allowed as of course, unless the landlords have a strong case for saying that
because the tenants got it wrong in the first place and because of actions
taken thereunder or for various other reasons it would be unfair to allow the amendment;
and the test as I have adumbrated it is whether the landlords are any worse off
than they would have been if the statement of case had been properly drafted in
the first instance.
That only
leaves Mr Cripps’ point that all this is beating the air anyway, because the
tenants cannot get their claim under section 47 off the ground, because of the
addition of the special provisions of the Second Schedule to the tenancy
agreement.
That addition
makes it quite clear that the Dutch barn and the grain and potato store are not
to be taken into account when fixing the rent, because they are tenants’
fixtures. They are not to pin on the landlords’ liability for repairing them
because they are tenants’ fixtures. It makes it quite clear that
notwithstanding that this appears to be a new tenancy agreement, and
notwithstanding that The Dutch barn and the grain and potato store have been
there from the beginning, they were nevertheless in the tenants’ part of the
world instead of the landlords’ part of the world. That means to my mind that
there was recorded not only the facts as regards these two buildings but also
maintenance of any claim which the tenants might have in respect of them either
under section 13 or under section 47 or under any other section of the Agricultural
Holdings Act. The insertion of that special provision had advantages from the
landlords’ point of view and the tenants’ point of view. It may be that it was
unnecessary, because the Agricultural Holdings Act, section 53, provides that
the rights of a tenant with regard to improvements and compensation can be
preserved from one tenancy through a succession of tenancies, but no doubt it
was put in ex abundanti cautela. That this particular provision has to
be wrenched by construction into an abandonment by the tenants of any rights
they may have under section 47 seems to me quite unarguable; and, as my lord
has pointed out, it is not only unarguable, it is also probably illegal.
For those
reasons I agree with my Lord.
Also agreeing,
DAME ELIZABETH LANE said: I would make only these comments. In the second
paragraph of section 70(2) of the 1948 Act there is a description, if not a
definition, of what amounts to a sufficient specification, for the purposes of
a notice of claim. But when it comes to paragraph 6 of the Sixth Schedule and
the mandatory requirement of a statement of case with all necessary
particulars, no guidance whatsoever is given as to what particulars are
necessary, and there are no statutory prescribed forms such as are to be found,
for example, in the Rent Acts Rules and Regulations or in the Matrimonial
Causes Rules.
So, a layman,
seeking as he may under this Act to draft a statement of case, who is unlikely
to have studied such authorities as those to which we have been referred or a
report of this case or any helpful textbook, is left to guess what particulars
are necessary.
Unless and
until such forms are prescribed, in my view whoever has drafted the statement
of case, an arbitrator, exercising his discretion under this Act should expect
to be, and be, liberal in the exercise of the discretion to consent to
amendments so long as such amendments will not cause injustice to the opposite
party, as was the case here; and if there are any consequential costs, those
can be ordered in the opposite party’s favour.
I agree that
this appeal should be allowed, and the order suggested made.
The appeal
was allowed with costs in the Court of Appeal and in and about the appeal to
the county court, including costs of the case stated. Leave to appeal to the
House of Lords was refused.
