Landlord and Tenant Act 1954, Part II–Tenants’ request for new tenancy under section 26 defective because date of commencement was too early–Defect not observed by either party–Tenants made application to court for new tenancy and as a result of sections 33 and 64 any defect in request in fact became academic–Landlords subsequently applied under section 24A for an interim rent–This application, which assumed the validity of the tenants’ request for a new tenancy, was not pursued–Landlords’ counsel subsequently advised that tenants’ request was bad–Landlords gave notice under section 25 terminating tenancy, opposing any application for a new tenancy and stating intention to demolish or reconstruct premises–Landlords applied to county court to strike out tenants’ application as bad–Held, affirming decision of county court judge, that the landlords had waived the defect in the tenants’ request–An alternative ground, although doubted by Bridge LJ, was that the landlords were estopped from denying the validity of the request
This was an
appeal from a decision of Judge Corcoran at the West London County Court in
favour of the tenants, Bristol Cars Ltd, occupiers of car showrooms and
premises in Kensington High Street, London W14. The appellants were the present
landlords, The Sharjee Centre for International Real Estate Investment and
Investment & Trading Company Sharjah, who had acquired the reversion from
the previous landlords, RKH Hotels Ltd (in liquidation). The latter, although
named in previous proceedings, took no part in the present appeal.
Bernard Marder
QC and R A Campbell (instructed by Gershon, Young & Co) appeared on behalf
of the appellants; Leonard Hoffmann QC and Michael Barnes (instructed by
Chethams) represented the respondent tenants.
Giving the
first judgment at the invitation of Megaw LJ, TEMPLEMAN LJ said: This is an
appeal against a judgment of His Honour Judge Corcoran delivered in the West
London County Court on October 30 1978. The question is whether a defective
request by tenants for a new lease under section 26 of the Landlord and Tenant
Act 1954 can be and has been validated by waiver of the defect on the part of
the landlords.
By an
underlease dated September 6 1973 the tenant respondents, Bristol Cars Ltd
(then named Anthony Crook Motors Ltd), were granted part of the ground floor
and basement of premises then known as Eastbury Court in Kensington High Street
and Holland Road, Kensington, and now car showrooms and premises in the Royal
Kensington Hotel, for a term which was due to expire on October 31 1976.
By 1976 the
original landlords RKH Hotels Ltd, were in receivership and in liquidation. By
a request dated February 4 1976, made under section 26 of the Landlord and
Tenant Act 1954, the tenants requested a new tenancy of 21 years, ‘commencing’
(so the notice read) ‘on the 16th day of February 1976.’ That request was not in accordance with the
provisions of the Act, because by section 26(2) ‘A tenant’s request for a new
tenancy shall be for a tenancy beginning with such date, not more than twelve
nor less than six months
proviso that ‘the said date shall not be earlier than the date on which apart
from this Act the current tenancy would come to an end by effluxion of time. .
. .’ Thus, by giving a notice dated
February 4 for a new tenancy to commence on February 16 the tenants failed to
give a date six months ahead and failed to give a date which would be on or
after October 31 1976 when the lease was due to determine. In these
circumstances the tenants’ request should have been for a new tenancy beginning
on October 31 1976, and it would then have been in order.
The rent under
the existing lease was £2,850 per annum. The rent proposed in the tenants’
request was £4,250. So the only practical effect of the defect was that the
tenants were offering to pay more rent than was strictly necessary between
February 16 and October 31 1976. Nevertheless it is rightly conceded that the
request was defective and did not comply with the provisions of section 26.
The landlords’
receiver on February 10 1976 acknowledged receipt from the tenants of their
request. He did not spot, and nobody for a long time spotted, that there was
anything wrong with the date named in the request; and he wrote back saying
that he would send a copy to Clive Lewis & Partners, who were the surveyors
advising him, who, he said, would be in touch with Cyril Leonard & Co–those
were the tenants’ surveyors–‘in connection with the Form 12 since I do not
agree the proposals that you are making.’
That letter implied that the landlords did not intend to oppose the
grant of a new tenancy but that there would be the usual negotiations between
surveyors to see if they could arrive at an acceptable new term and new rent.
Under the Act
the landlords had a period of two months during which to notify the tenants as
to whether they were going to oppose the grant of a new tenancy. That period
expired on April 4 1976 without any such notice being given. From then onwards
the tenants, who were as blissfully unaware of the defect in the request as
were the landlords, were entitled to assume that they were bound to get a new
lease, because the landlords had not given a notice saying that they would
oppose the grant of a new lease. Indeed, thenceforward the landlords and the
tenants proceeded, from that date, namely, April 4 1976, and down to April 29
1977, when the landlords woke up to the defect, on the footing that the
landlords would not and could not oppose the grant of a new lease. That being
so, the tenants were in a position to apply for a new lease and in a position
to negotiate with the landlords regarding the terms of the new lease.
The
application to the court was made on May 13 1976. That was in time as
prescribed by the Act; and it was in proper form. There was nothing defective
about it, but it stated that the current tenancy had been terminated by the
tenants’ request for a new tenancy dated February 4 1976 and that the date
specified in that request was February 16 1976.
The result of
the application was that the defect as regards the date for the commencement of
the new term which had been contained in the tenants’ request became wholly
academic and of no importance whatsoever. That arises because section 33 and
section 64 make provisions whereby, once an application to the court has been
made, the date when the new tenancy shall begin is to be governed, not by the
tenant’s request, but by the provisions of the Act itself. Section 33 provides
that ‘Where on an application . . . the court makes an order for the grant of a
new tenancy, the new tenancy shall be such tenancy as may be agreed between the
landlord and the tenant’–so they are left to agree anything they please–‘or, in
default of such an agreement, shall be such a tenancy as may be determined by
the court to be reasonable in all the circumstances, being . . . a tenancy for
a term not exceeding 14 years, and shall begin on the coming to an end of the
current tenancy.’ Section 64 provides
that in any case where a request for a new tenancy has been made the effect of
the notice or request shall be to terminate the tenancy at the expiration of
three months beginning with the date on which the application is finally
disposed of.
So February 16
1976 as a date of any importance disappeared completely; and the Act provided
that the new tenancy, when granted, should begin at the expiration of three
months after the application had been dealt with. Both sides were still
blissfully unaware of the defect, which, as I say, had now become unimportant.
Both sides clearly thought that all that remained was for the terms of the new
tenancy to be agreed or to be determined by the court.
On July 15
1976 the landlords’ surveyors wrote to the tenants’ surveyors saying that the
hotel had been sold but that the landlords’ surveyors had been instructed by
the new owners to proceed with negotiations on their behalf. The new owners,
who contracted to buy the property in June and took a conveyance of the
reversion in August, were the appellants in these proceedings, The Sharjee
Centre for International Real Estate Investment and Investment and Trading
Company Sharjah. That letter referred to ‘lengthy negotiations’ and to an
agreement ‘subject to contract’ in which the new lease was to be for 10 years
and was to begin on June quarter-day 1976. So, apart from the date for the
commencement of the term which the court could fix, the parties themselves were
talking about a date beginning on a date other than that which was contained in
the request. Then it was set out that the agreed rent was to be £5,250 a year.
Those were the
negotiations. They did not fructify into an agreement. On July 27 1976, on the
application of the tenants, the West London County Court Registrar ordered that
experts’ reports be exchanged within 21 days, and fixed the action for
Wednesday, November 24 1976. That order was, of course, served on the
landlords. In August 1976 both sides, the landlords and the tenants, agreed
that as negotiations were still proceeding for the grant of a new lease by
agreement instead of under an order of the court it would be sensible not to
keep the hearing date for the county court action but for the action to be
adjourned generally. By agreement between both sides, the action was adjourned
sine die by an order of the West London County Court on September 7 1976.
The
negotiations did not come to anything. Eventually, on February 24 1977, the
tenants woke up and asked the county court to restore the action so that, in
default of agreement, the court could determine the new lease and the rent. A
date for trial was fixed, namely May 25 1977.
On March 2
1977 the landlords took a step which certainly acknowledged the existence and, pro
tanto, the validity of the application. They applied, by a notice of
application dated March 2 1977, to the court for the determination of a
reasonable interim rent for the applicants to pay until the action for a new
tenancy had been heard. There was only jurisdiction for such an order to be
made, under section 24A of the 1954 Act, if the landlords had given notice
under section 25–that had not happened–or if the tenants had made a request for
a new tenancy in accordance with section 26 of the Act. Only in those
circumstances may a landlord apply to the court to determine a rent which it
would be reasonable for the tenant to pay while the tenancy continues by virtue
of section 64. So the foundation for an application for an interim rent is an
application, in the present instance, by the tenants for a new lease.
That
application for an interim rent was not heard. There was some more
correspondence exchanged between the landlords and the tenants. With a view to
saving costs, it was proposed that there should be a preliminary issue before
the court relating to the terms of the lease other than rent and that hearing
experts as to the value and the rent and so on would not be required. Then the
landlords asked for 21 days to file an answer in response to the originating
application. That answer should have been in a form dictated by the rules and
would not, according to the form, constitute any challenge to the validity of
the notice or to any matter other than the terms of the proposed lease. The
extension was granted, the
what perhaps they might have done earlier: they went to counsel. The result was
that counsel advised that the notice was defective.
On April 29
1977 the tenants, who had been proceeding for over a year on the basis that
their request was going to result in a new tenancy, received what counsel for
the landlords himself called a bomb-shell, a letter saying the landlords had
been advised that the tenants’ section 26 request was bad. What was worse, on
the assumption that it was bad, the landlords themselves enclosed a notice
under section 25 of the Landlord and Tenant Act 1954. Under that notice the
landlords themselves terminated the tenancy on December 24 1977. That did not
matter much, because the tenants had also given a notice determining the
tenancy and asking for a new tenancy. But the rub came in paragraph 3 of the
landlords’ notice, which said, for the first time, ‘I would oppose an
application to the court for the grant of a new tenancy on the ground that on
the termination of the current tenancy we intend to demolish or reconstruct the
premises comprised in the holding of a substantial part of those premises. . .
.’
The result was
that, whereas in February 1976 the tenants had served a notice on a receiver
and a liquidator, and it is very doubtful whether the landlords would have been
in a position to put forward any ground for opposing the grant of a new
tenancy, now, as a result of the delay, here were new landlords in possession
and, apparently, by April 1977 in a position to form an intention to demolish
or reconstruct the premises.
The landlords
then brought an action to strike out the tenants’ application on the ground
that the application was invalid because of the defect in the tenants’ request.
That was not decided as a preliminary point; but on October 30 1978 His Honour
Judge Corcoran held that the landlords had waived the defect in the tenants’
request dated February 4 1976; and the landlords now appeal to this court, on
alternative grounds. First, they say that the court has no jurisdiction to
entertain an application for a new tenancy based on a defective request, and
that waiver is not possible. Secondly, they say that if waiver were possible
the landlords did not in fact waive the defect. Thirdly, they say that if
waiver were possible and the landlords had acted, nevertheless the tenants did
not rely on the waiver in any way or put themselves into a disadvantageous position.
So far as the
first point is concerned, it seems quite plain that on principle and authority
this is a defect in a document which is capable of being waived. So far as
principle is concerned, in Tennant v London County Council (1957)
55 LGR 421 the landlords served a notice under section 25 of the 1954 Act
determining the tenancy and objecting to the grant of a new tenancy. The tenant
served a counter-notice and applied under the 1954 Act for a new tenancy. He
was held to have waived any objection to the validity of the landlords’ notice.
His point there was that the notice was not signed by the correct person and
therefore was not binding on the tenant and was a defective notice. Jenkins LJ
found, I think as an alternative ground for his decision, that the tenant had
waived objection. It never seems to have occurred to him or to the other
members of the court, or to counsel, that waiver was not possible. Not only did
Jenkins LJ find that waiver had taken place, but he had these words of advice
to give at p 434:
I do regard
it as most desirable in cases under the Landlord and Tenant Act 1954, where
time may be an important consideration, that parties who wish to take objection
to the form or the validity of the proceedings should act promptly and not reserve
objections of this sort until the proceedings have been on foot for a matter
perhaps of months.
That seems to
be an indication of what should be done in principle.
So far as
direct authority is concerned, the matter is determined by the decision of the
House of Lords in Kammins Ballrooms Co Ltd v Zenith Investments
(Torquay) Ltd [1971] AC 850. In that case the tenants made a request for a
new tenancy on August 2 and applied to the court for a new lease on September
4. The application was itself defective, because section 29(3) of the Act
provides that ‘No application . . . shall be entertained unless it is made not
less than two nor more than four months after the giving of the landlord’s
notice under section 25. . . .’ Having
regard to the dates, the application to the court in Kammins’ case was
made less than two months after and therefore offended against the peremptory
order that it should not be entertained unless made not less than two months
after the date of the landlords’ notice or the tenants’ request. The House of
Lords (Lord Dilhorne dissenting) held that the requirements of section 29 (3)
‘were only procedural, and consequently the landlords had a right to ignore or
object to the tenants’ premature application but could waive that right.’ In that case the House of Lords, again by a
majority, this time of three to two decided that on the facts of that case the
landlords had not waived their right to object that the application was bad;
but nevertheless the case is clear authority that the requirements of the
Landlord and Tenant Act 1954 can be waived. I can see no ground for
distinguishing a waiver of the requirements of section 29 from a waiver of the
requirements of section 26.
Lord Reid at p
860 said:
What public
interest can there be in preventing parties, who want as speedy a decision as
possible, from going to the court before a certain period has elapsed. The only
suggestion was that difficulties might be caused if a tenant made an
application long after the statutory period had elapsed on a trumped-up case of
waiver: a land lord is entitled to know where he stands after that time. This
seems to me to be so improbable that it can really have no weight against the
desirability of allowing parties to get on quickly if they want to. The Act contains
nothing to indicate that contracting out is forbidden on the contrary the
parties are encouraged at every stage to come to an agreement. And there is
another factor of some importance. If this is a direction to the court
forbidding it to entertain applications made out of time, then it is the duty
of judges to scrutinise the very numerous applications made under this section
so as to satisfy themselves that they are made within the time prescribed. It
is most unlikely that Parliament would put such a burden on judges without very
good reason and I can find none. So I am satisfied that the time limits in
section 29 are not essentially different in character from ordinary statutory
provisions limiting the time during which various procedural steps can be
taken. If the parties can agree not to insist on a time limit then it was not
disputed that one of them can waive his right to insist on it.
At p 862 Lord
Morris of Borth-y-Gest said:
The effect of
section 24 of the Act is that a tenancy . . . does not come to an end unless
terminated as provided by the Act. A tenant may apply for a new tenancy if the
landlord has given a notice under section 25 to terminate the tenancy or if he
(the tenant) has made a request for a new tenancy under section 26. On the making
of an application the court must make an order for the grant of a new tenancy
(see section 29(1)) unless the landlord successfully opposes the application. .
. . The application of the tenant is made under section 24 but it is ‘subject
to the provisions’ of section 29. In this way the time limits set out in
section 29 are introduced. In my view they are time limits which regulate
procedure. They provide for an orderly sequence of procedural steps. A tenant
who fails to keep within the prescribed time limits will fail at his peril. He
may find that his landlord will insist, as insist he may, upon strict
observance. But if a landlord agrees to waive the strict observance of a time
stipulation I do not consider that the language of section 29 makes it obligatory
upon the court to hold that in spite of the landlord’s agreement the court
cannot and must not proceed.
So, at any
rate in this branch of the law of landlord and tenant, the House of Lords
relaxed the strait-jacket of rules, which so often in common law cases under
landlord and tenant produce rather bizarre results. In my judgment it is quite
clear that the defect in the present case could be waived. It remains to
consider whether in the instant case the landlords did waive the requirements.
At p 881 of
the Kammins case, to which I have just referred, Lord Diplock, having
agreed upon what he called ‘the purposive approach to statutory construction,’
said:
This is the
reason why in a statute of this character a procedural requirement imposed for
the benefit or protection of one party alone is construed as subject to the
implied exception that it can be ‘waived’ by the party for whose benefit it is
imposed even though the statute states the requirement in unqualified and
unequivocal words. In this context ‘waived’ means that the party has chosen not
to rely upon the non-compliance of the other party with the requirement, or has
disentitled himself from relying upon it either by agreeing with the other
party not to do so or because he has so conducted himself that it would not be
fair to allow him to rely upon the non-compliance.
Then the
learned Law Lord proceeded to analyse what he meant by the expression that ‘it
would not be fair,’ which, as one might expect, he reduced to judicial and
legal characteristics and did not leave to the general discretion of the court
on any particular occasion.
On the
question whether in the present case the landlords have waived the defect in
the request, the argument for the landlords is beguilingly simple. Mr Marder put
it in a variety of ways, but at the end of the day I think it comes down to
this. He says that there can be no waiver or acquiescence without knowledge:
that the landlords did not know that the tenants’ request dated 4 February 1976
was invalid until April 1977, and as soon as they found that it was, they then
took the point and objected to the grant of a new tenancy. If knowledge is
requisite, as it is in some cases of waiver and acquiescence, then it is quite
clear that the landlords did not have that knowledge. But in my judgment this
is a case of estoppel rather than waiver. The landlords innocently led the
tenants to believe that the landlords would not, and after a certain period
could not, oppose the grant of a new tenancy. By the time the landlords sought
to assert the contrary, the position of the tenants had so altered that it
would be unfair to allow the landlords now to contest the validity of the
request and then to oppose the grant of a new tenancy. When the tenants served
their request on the landlords they were seeking, as is plain from the statute
and the form, to ascertain whether the landlords would oppose the grant of a
new tenancy–and of course a tenant does need to know that when he is
contemplating how he is to conduct his business in the future. The landlords,
on receiving that request, could have challenged the request. They could have
opposed the grant of a new tenancy. Or they could have said nothing. If the
validity of the request was challenged, or if the grant of a new tenancy had
been opposed, or if the landlords had remained silent, the tenants would at any
rate have been on their guard. They might have reconsidered the request and
served another notice. They might have looked elsewhere for premises. At any
rate they would not necessarily have spent the next year blissfully in the
illusion that they were bound to obtain a new tenancy–a belief which no doubt
affected their business administration and planning throughout the year.
The time came,
namely April 4 1976, when the tenants, having received the letter from the
receiver and knowing that the surveyors were in negotiation, were entitled,
because of those events and because the time for delivering a counternotice had
expired, to assume thereafter that the landlords not only were not going to
oppose the grant of a new tenancy but could not successfully do so. On that
hypothesis, so far as the tenants were concerned time was irrelevant. No matter
how long the negotiations took, no matter what changes of landlord there were,
everything could be governed by an application to the court, and as long as
that was kept alive they were bound to end up with a new tenancy in the long
run.
The lapse of
time between February 1976, when the tenants served their request, and April
1977, when the landlords sought to assert the invalidity of the request, is a
long time in the life of businessmen. The tenants were faced with an entirely
new situation, the danger of losing their premises in 1977 at a time when
possibly the property market had altered or the position as to alternative
accommodation had altered: any plans they had made during that year, on the
assumption that they were going to stay, would be frustrated. But, worse than
that, the position was that whereas, as I have indicated, it seems highly
likely, to put it at its lowest, that the landlords and their predecessors in
title had no grounds on which to oppose the grant of a new tenancy, by April
1977, as a result of the passage of time and (I suppose) the landlords getting
themselves organised, the landlords were in a position at least to allege that
they had the intention at that time of reconstructing the premises. So that
this delay, which took place because the tenants were blissfully thinking that
they were bound to get a lease and that time was of no importance, radically
changed the position of the landlords and faced the tenants with an entirely
new situation which meant that if they had known of it originally they might
have taken a very different course of action.
It seems to me
that in those circumstances the landlords are estopped from denying the
validity of the notice because they had, innocently, led the tenants to believe
that they would not oppose the grant of a new tenancy. Of course, not every
delay or every representation will support an estoppel. In the present case Mr
Marder has pointed out that the landlords did nothing; that they knew nothing;
and he said there was very great difficulty in assessing the particular date on
which, on this analysis, they become estopped from disputing the validity of
the request. But in my judgment there is no doubt or difficulty in the present
case. The inevitable conclusion from the facts which I have outlined is that
the date when the landlords were estopped occurred before April 1977, certainly
not later than March 2 1977, when the landlords applied for their interim rent.
Accordingly, for my part I would hold that the landlords are estopped from
disputing the validity of the tenants’ request.
It was urged
that the circumstances in the present case are not different from the
circumstances in the Kammins case, upon which, as I have said, the House
of Lords, by a majority, held that the landlords had not been guilty of waiver.
But there are striking differences between the Kammins case and the
present. In the first place the time span was shorter. Secondly, the time span
was not such and the circumstances were not such that it could be seen quite
plainly that the tenants would be in a position, when faced with an allegation
of the invalidity of the request, different from that in which they would have
been a year earlier. Thirdly, in Kammins the landlords had persistently
opposed the grant of a new tenancy. They had given grounds for opposition, and
the invalidity of the application was a second or alternative ground which came
into operation admittedly at the last minute. But the complaint of the tenants
in the present case is that the inevitable assumption which they would make
from the landlords’ actions in negotiations between February 1976 and April
1977 would be that they need not bother to do anything but negotiate for the
terms and, if necessary, ask the court to decide the terms, of the lease which
they were bound to get: whereas in Kammins’ case the landlords made it
clear that they would if possible resist the grant of a new lease. Accordingly,
I do not find that the circumstances in Kammins’ case, to which Mr
Marder pointed, govern the present.
As an
alternative ground, it seems to me that the action of the landlords in the
present case in asking the court to grant an interim rent was an action which
plainly waived any defect. On this head of the case, Lord Diplock, at p 883 of
the Kammins case, as I have said, analysed the various grounds on which
waiver could be put forward, and one ground to which he referred but which did
not apply in the Kammins case is waiver which arises
In a
situation where a person is entitled to alternative rights inconsistent with
one another. If he has knowledge of the facts which give rise in law to these
alternative rights and acts in a
the law holds him to his choice even though he was unaware that this would be
the legal consequence of what he did. He is sometimes said to have ‘waived’ the
alternative right, as for instance a right to forfeit a lease or to rescind a
contract of sale for wrongful repudiation or breach of condition; but this is
better categorised as ‘election’ rather than as ‘waiver.’ It was this type of ‘waiver’ that Parker J
was discussing in Matthews v Smallwood [1910] 1 Ch 777.
It seems to me
that those words describe what happened in the present case. Although the
landlords did not know it, they had the choice between affirming the request
and application and applying for an interim rent on the basis that that was the
course which they elected to take, or alternatively of arguing that the
application was invalid, in which case, of course, they could not apply for an
interim rent. The action of applying for an interim rent is, in the words of
Lord Diplock, an act inconsistent with their relying on their other choice,
namely, to contend that the request was invalid.
Accordingly,
on each of these two alternative grounds I would dismiss the appeal.
Agreeing, BRIDGE
LJ said: For my own part, turning to the question whether there was in fact a
waiver, I am content to rest my judgment on this foundation: that the facts
here show a waiver by election between inconsistent rights falling fairly and
squarely within the doctrine enunciated in relation to that type of waiver by
Lord Diplock in his speech in Kammins Ballrooms v Zenith Investments
in the passage last cited by my Lord, Templeman LJ. The application to the
court was invalid because the request for a new tenancy which preceded it had
given a date for the commencement of the new tenancy which did not comply with
the requirements of section 26 of the statute. The landlord knew the material
facts which vitiated the proceedings, albeit he did not appreciate their legal
import. Accordingly he had, as one alternative, the option of attacking the
validity of the proceedings on the ground that the section 26 notice on which
they depended was a bad notice. But he had the other alternative, which he
chose to exercise, of applying to the court under section 24 to determine an
interim rent. To make such an application was to claim a right to which he
could only be entitled on the footing that there was a valid application for a
new tenancy in existence before the court.
Accordingly,
it seems to me that here there was a situation precisely analogous to the
situation arising in a common law landlord and tenant relationship where there
has been a breach of covenant on the part of the tenant giving rise to a right
in the landlord to forfeit and the landlord has elected to affirm the continued
subsistence of the lease by demanding rent under it from the tenant. In this
type of waiver it is immaterial, as Lord Diplock explained in the passage
referred to, that the party waiving does not appreciate the legal consequences
of what he does. It is equally unnecessary, in such a situation, to show that
the party entitled to the benefit of the waiver has altered his position to his
detriment in reliance upon it. The waiver is complete by the mere fact of the
exercise of an election in favour of one set of rights rather than another.
For my own
part, I felt great difficulty about the other issue raised in the case, the
issue of estoppel. On the facts of the case I find it difficult to see how precisely
it can be said that there was either an estoppel in the strict and classic
sense of that term or an equitable or promissory estoppel upon which the
tenants are able to rely. But I express no concluded opinion upon the matter,
being content, as I said earlier, to rest my judgment on the footing that there
has been a waiver; and for that reason I too would dismiss this appeal.
MEGAW LJ
expressed his agreement with the judgment which had been delivered by Templeman
LJ, both in its conclusions and in its reasoning.
The appeal was dismissed with costs.
