Business tenancy–Landlord or tenant who sends notice by ordinary post runs the risk of losing his rights under the Act of 1954 should the letter go astray–To be safe, he must prove registration or use of the recorded delivery service–In the particular case of a notice of unwillingness to give up possession, the tenant must prove service within two months of receipt of notice to terminate–If he cannot do this, he loses his right to a new lease
This was an
appeal by Mr Michael Henry Chiswell, from a judgment of Judge Ifor Lloyd at
Wandsworth County Court on October 29 1974 holding that the court was debarred
from entertaining his application for a new lease of business premises at 5
Sheen Road, Richmond upon Thames, Surrey, from the respondents, Griffon Land
& Estates Ltd, by reason of his failure to notify them in due time of his
unwillingness to give up possession.
Mr B A Payton
(instructed by Yahuda & Co) appeared for the appellant, and Mr D A Wood
(instructed by Williams & James, Warren & Lacey) represented the
respondents.
The court did
not call upon counsel for the respondents to argue.
Giving the
first judgment, ORR LJ said: The appellant in this case applied in the
Wandsworth County Court under the provisions of Part II of the Landlord and
Tenant Act 1954 for a new lease of business premises at 5 Sheen Road, Richmond.
He now appeals against an order made on the trial of a preliminary issue in
those proceedings by His Honour Judge Ifor Lloyd on October 29 of last year
that the court was debarred from entertaining the applicant’s application by
reason of his failure to notify the respondent landlords, within two months
after his receipt from them of a notice terminating the tenancy, of his
unwillingness to give up possession of the premises. The provisions of the 1954
Act which are directly relevant are contained in sections 24 to 29 and section
66. Section 24, by subsection (1), provides:
A tenancy to
which [Part II] of this Act applies shall not come to an end unless terminated
in accordance with the provisions of this Part of this Act; and, subject to the
provisions of section 29 of this Act, the tenant under such a tenancy may apply
to the court for a new tenancy (a) if the landlord has given notice under
[section 25 of this Act] to terminate the tenancy, or (b) if the tenant has
made a request for a new tenancy in accordance with section 26 of this Act.
Section 25 of
the Act provides, in subsection (1):
The landlord
may terminate a tenancy to which this Part of this Act applies by a notice
given to the tenant in the prescribed form specifying the date at which the
tenancy is to come to an end. . . .
Subsection (5)
of the same section provides:
A notice
under this section shall not have effect unless it requires the tenant, within
two months after the giving of the [landlord’s] notice, to notify the landlord
in writing whether or not, at the date of termination, the tenant will be
willing to give up possession of the property comprised in the tenancy.
Section 29 of
the Act provides:
(1) Subject to the provisions of this Act, on an
application under subsection (1) of section 24 of this Act for a new tenancy
the court shall make an order for the grant of a tenancy comprising such
property, at such rent and on such other terms, as are hereinafter provided.
(2) Where such an application is made in
consequence of a notice given by the landlord under section 25 of this Act, it
shall not be entertained unless the tenant has duly notified the landlord that
he will not be willing at the date of termination to give up possession of the
property comprised in the tenancy.
(3) No application under subsection (1) of
section 24 of this Act 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 of this Act or, as the case may be, after the making of the tenant’s
request for a new tenancy.
Section 66 of
the Act, in subsection (4), provides that section 23 of the Landlord and Tenant
Act 1927 shall apply for the purposes of the 1954 Act; and that section
provides:
Any notice .
. . under this Act shall be in writing and may be served on the person on whom
it is to be served either personally, or by leaving it for him at his last
known place of abode in England or Wales, or by sending it through the post in
a registered letter addressed to him there. . . .
As a result of
the Recorded Delivery Service Act 1962, the same effect as was given by that
section to a registered letter now falls to be given to a letter despatched by
the recorded delivery service. In the present case it is common ground that the
document with which we are concerned, to which I shall be referring in a
moment, was not sent either by registered post or by recorded delivery service,
and accordingly section 23 of the Act of 1927 does not apply. It was argued on
behalf of the applicant tenant in the court below that what did apply was
section 26 of the Interpretation Act 1889, which is the only remaining
statutory provision to which I find it necessary to refer. Section 26 provides
as follows:
Where an Act
passed after the commencement of this Act authorises or requires any document
to be served by post,
other expression, is used, then, unless the contrary intention appears, the
service shall be deemed to be effected by properly addressing, prepaying, and
posting, a letter containing the document, and
–and I
emphasise the following words–
unless the
contrary is proved, to have been effected at the time at which the letter would
be delivered in the ordinary course of post.
The facts of
the case are, briefly, these. On April 19 1974 there was sent to the appellant
by the landlords’ solicitors, by recorded delivery post, a notice terminating
his tenancy with effect from December 1 of that year. That letter was received
by the appellant on April 22. He subsequently took the notice to his
solicitors, Yahuda & Co. There was evidence before the judge from both Mr
Yahuda and a member of his staff that on June 12 a letter addressed to the
landlords’ solicitors was dictated by Mr Yahuda, transcribed by his
audio-typist, a Mrs De Buisson, brought by her for Mr Yahuda to sign, signed by
him, a carbon copy being retained, and handed to a Mrs Turner for posting and
thereafter entered by her in the post-book under that date. It was stamped for
first-class mail, but was not registered or despatched by recorded delivery
service; and it was posted by Mrs Turner, according to her evidence, on her way
home that day from the office at about 5.30 in a pillar box, being one of two
letters which she posted on that evening. Mr Yahuda in his evidence said that
it was not his practice, in addressing a letter to another firm of solicitors,
to register it or to despatch it by recorded delivery service, and that he had
not expected to receive an acknowledgement of the notice which was contained in
the letter of June 12. As I have said, there was evidence on these matters not
only from him but from Mrs Turner.
At the
hearing, evidence was also given by two witnesses for the respondents as to the
system prevailing in the office of the respondents’ solicitors. The first
witness was a Mr Watson, a member of the Corps of Commissionaires, who is in
charge of that firm’s general office. He gave evidence as to the procedure
which he followed with regard to incoming mail. His evidence was that that mail
would normally amount to something like 500 letters by the first post in the
day, and he described the system by which the letters which were the concern of
particular partners were put in individual baskets for them, and a partner who
found something in his basket which was not his concern would then pass it on
to another partner or might bring it back to Mr Watson, who would then try to
find out who was dealing with the matter. If he failed entirely to find out, he
would telephone the sender of the letter. The letter with which we are here
concerned did not in fact bear a reference of the respondent firm upon it, but
there is no reason to suppose that there were not many letters coming in to a
firm of solicitors which would not bear such a reference. The evidence of Mr
Watson was that letters had sometimes gone missing, but he had always been
successful in finding them. The evidence given by Mr Davis, the partner dealing
with this particular matter, was that he had searched his office for the letter
in question and failed to find it; and that four of his partners were well
aware that he was handling that matter and, if they had received the letter,
would have passed it to him. In cross-examination he accepted that there were
two cases to his knowledge where letters had gone astray, and he accepted that
it was a possible thing, but said that it was rare. I pause to say that if in
fact there have been only two cases of that happening of which he was aware, in
the case of a firm receiving some 500 letters a day, it would not be at all a
bad record. It was not discovered until early July 1974 by the appellant’s
solicitors that receipt of their letter by the respondents’ solicitors was in
dispute. How it came to light was that on July 1 the appellant’s solicitors
notified the respondents’ solicitors that they had made application that day to
the county court for a new lease. They referred in that letter to their letter
of June 12, but on July 3 the respondents’ solicitors wrote to say that they
had not received it. On July 5, in answer, the appellant’s solicitors wrote
repeating that they had sent the letter of June 12, and they enclosed a copy of
it. I pause to say that by this time, July 5, the period of two months after
the landlords’ notice to terminate the tenancy had long since expired.
Before the
learned judge, it was argued first for the applicant that the letter of June 12
had been duly served. That was a matter on which the learned judge had to
arrive at a conclusion of fact upon the evidence. It was further argued that it
was enough if the tenant’s notice of unwillingness was given before the court
actually entertained the application for a new tenancy, which it was claimed
was at the date of hearing, provided that four months had not then elapsed
since the giving of notice by the landlords, that being the requirement imposed
by section 29 (3) of the Act, to which I have referred. The learned judge came
to the conclusion that the letter of June 12 had not been duly served. He
considered that the three possibilities which he had to consider were: first,
that it had not been posted; second, that it had been lost in the post; and
third, that it had been mislaid after being received within the respondents’
solicitors’ offices. He summarised his conclusions of fact on that matter in a
passage at page 6 of the judgment, where he said: ‘I am satisfied on the
evidence which I have heard that the letter of notification from the
applicant’s solicitor was properly addressed, prepaid and posted. I am also
satisfied on the evidence that the letter was never received in the office of
the respondents’ solicitors. As a matter of reasonable probability I find that
the letter went astray in the post.’ As
to the second argument advanced before him for the applicant, the learned judge
held that on the true construction of section 29 (2) and section 25 of the Act,
the words ‘duly notified’ in section 29 (2) were a reference back to section 25
and to the passage in which the two-months’ time-limit is imposed, to which I
have already referred. Accordingly, he dismissed the application upon this
preliminary ground. It is against that decision that this appeal is now
brought, and the grounds of appeal are three. First of all, it is claimed that
the judge was wrong in holding that the presumption contained in section 26 of
the Interpretation Act 1889 can be displaced by a finding, on a balance of
probabilities, that the letter in this case went astray in the post. That
amounts to an argument that the burden imposed by section 26 of the
Interpretation Act by the words ‘unless the contrary is proved’ is something
higher and heavier than the ordinary civil burden of proof. The second ground
of appeal is that the judge was wrong in finding, on a balance of
probabilities, that the letter had been lost in the post. The third and final
ground is the argument that was addressed to the learned judge as to the
construction of the words ‘duly notified’ in section 29 of the Landlord and
Tenant Act 1954.
I am unable to
find any substance in the first two of these grounds. As to the first, there is
in my judgment no reason to construe the words ‘unless the contrary intention
is proved’ as imposing any heavier burden than the ordinary civil standard of
proof. As to the second, I am satisfied that the judge in reaching his
conclusions had regard to the whole of the evidence, and upon the evidence was
fully justified in deciding as he did. With regard to the third ground of
appeal, Mr Payton, for the appellant, has referred us to a number of
authorities, none of which, I am bound to say, with all respect to his
argument, seem to me to be of any assistance for the present purpose. He
accepted frankly that the argument he was putting was contrary to what the
accepted practice has been, as shown by passages in textbooks and in the County
Court Practice, and indeed contrary to the notes apearing on the back of
the prescribed form
one provided under statutory powers given by the Act. But it is accepted for
the respondents in this case, and must be right, that such a form, let alone
the notes upon it, cannot affect the construction of the Act of Parliament
under which the form is made. I therefore approach this matter entirely on the
basis of the words themselves as they appear in the Landlord and Tenant Act
1954. The argument advanced for the appellant is that nothing contained in
section 25 of the Act in its terms imposes any burden upon a tenant as to what
he is to do, but merely a burden upon a landlord. It is claimed that the words
‘duly notified’ in section 29 (2) of the Act involve no more than that the
notice must be a proper notice in its terms, and cannot be read, or should not
be read, as introducing the time-limit contained in a different section
imposing duties only on the landlord. If that argument be right, the
consequence would seem to be that there would be no time-limit after the
receipt of a landlord’s notice for the tenant to put in a counternotice, and
that there would be great difficulties about the jurisdiction of the court,
which must, as it seems to me, depend on there being a dispute between the
parties which would be constituted by the giving of a notice on the part of a
tenant in answer to a notice given by the landlord.
I am quite
unable to give to the word ‘duly’ the limited meaning which counsel for the
appellant has claimed. It seems to me that that word clearly relates back to
section 25 (5) of the Act, which provides that the landlord is to require the
tenant within the period of two months after the giving of the landlord’s
notice to notify him in writing whether or not he would be willing to give up
possession; and although section 25, considered by itself, imposes obligations
only upon the landlord, it is in my judgment clear that section 29, read, as I
am satisfied it must be, with section 25 (5), does impose an obligation on the
tenant to give his notice within the two months’ period. I therefore find it
impossible to accept this argument for the appellant; and as I say, none of the
authorities to which we have been referred by Mr Payton seem to me to help in
this matter at all. This is not a case of the court being asked to read words
into a statute. Here we are considering solely words that are contained in a
statute. The question is whether the word ‘duly’ does refer back–as I am
satisfied it does–to this earlier passage in section 25 (5). I take the view,
therefore, that the earlier decision–apparently the only decision on this
matter–of His Honour Judge Reid in the county court in the case of Smale
v Meakers Ltd (1957) 169 EG 287 was right. I reach the conclusion that
this appeal must be dismissed with some regret, for there is an undoubted
hardship to the appellant in losing his opportunity of obtaining a new lease.
But in my judgment there is no hardship involved by the provisions of the Act
as I construe them. It is open to the tenant to give a notice by the various
forms of service which are provided for, and I cannot see that the terms of the
Act are in any way unfair in this respect to a tenant. For these reasons, with
great respect to the arguments to which we have listened, I can find no
substance in them, and I would dismiss this appeal.
ROSKILL LJ: I
also would dismiss this appeal. I agree so entirely with the judgment which Orr
LJ has just delivered that I hesitate to add to it. I also entirely and
unreservedly agree with the admirably clear and careful judgment of His Honour
Judge Ifor Lloyd. It seems to me that on the second point which Mr Payton
sought to argue before us there is a very short answer. A court has no
jurisdiction to entertain an application by a tenant for a new tenancy unless
the matter is properly before it. When one looks at section 29 (2) of the Act
of 1954, it says, ‘Where such an application’–that is, an application referred
to in subsection (1) of section 29–‘is made in consequence of a notice given by
the landlord under section 25 of this Act, it shall not be entertained unless
the tenant has duly notified the landlord that he will not be willing at the
date of termination to give up possession of the property comprised in the
tenancy.’ Therefore it seems to me that
unless the condition precedent contemplated by that subsection has been satisfied
at the date of the application there is no justiciable matter before the court.
How, then, is the court to be satisfied that the tenant has ‘duly notified’ the
landlord? Obviously, as a matter of
construction, having regard to the position in which section 29 (2) appears in
the structure of the group of sections to which Orr LJ has referred, one looks
back to see what is provided in the earlier sections. I therefore go back, as
my Lord has done, to section 25 (5), and I see: ‘A notice under this section
shall not have effect unless it requires the tenant, within two months after
the giving of the notice, to notify the landlord in writing whether or not, at
the date of termination, the tenant will be willing to give up possession of
the property comprised in the tenancy.’
It seems to me, therefore, that it is quite plain that within two months
from the date when the landlord gives his original notice the tenant must give
his counternotice, and unless he does so, the provisions of section 29 (2),
which require the tenant to have ‘duly notified’ the landlord of his
unwillingness to surrender his tenancy at the date of termination, have not
been complied with. The point of construction is short and simple; and, with
all respect to the argument to the contrary which has been presented on behalf
of the tenant, I venture to think that it is unarguable.
So far as Mr
Payton’s first point is concerned, it seems to me plain that the learned judge
was entitled to reach the conclusion which he did on the evidence before him,
that on a balance of probability the landlords had shown that the letter in
question had never been received by their solicitors. There was ample evidence
to support that view. The learned judge set out the three possible alternatives
in his judgment. He considered each with care, and on evidence which entitled
him to do so, he reached the conclusion that the most probable explanation was
that the letter had got lost in the post. The consequences of it having been
lost in the post (since the tenant’s solicitors failed to take advantage of the
provisions incorporated in the 1954 Act from the 1927 Act about posting by
recorded delivery) must fall upon the tenant. It is his misfortune, which he
has to bear. Accordingly, I am of the clear view that this appeal must be
dismissed.
MEGAW LJ: I
agree. In my view, the learned judge was right in his conclusions. With regard
to Mr Payton’s first point, the provisions of section 23 of the Landlord and
Tenant Act 1927 are incorporated in the 1954 Act by section 66 (4) of that
latter Act. The provisions of section 23 of the Landlord and Tenant Act 1927
lay down the manner in which service can be effected. It is provided, as what I
may call at any rate the primary means of effecting service, that it is to be
done either by ‘personal’ service, or by leaving the notice at the last-known
place of abode, or by sending it through the post in a registered letter, or
(as now applies) in a recorded delivery letter. If any of those methods are
adopted, they being the primary methods laid down, and, in the event of
dispute, it is proved that one of those methods has been adopted, then
sufficient service is proved. Thus if it is proved, in the event of dispute,
that a notice was sent by recorded delivery, it does not matter that that
recorded delivery letter may not have been received by the intended recipient.
It does not matter, even if it were to be clearly established that it had gone
astray in the post. There is the obvious, simple way of dealing with a notice
of this sort. But, as I think may be assumed for the purposes of this appeal,
if the person who gives the notice sees fit not to use one of those primary
methods, but to send the notice through the post, not registered and not by
recorded delivery, that
person to whom the notice has to be given. But a person who chooses to use that
method instead of one of the primary methods is taking the risk that if the
letter is indeed lost in the post, notice will not have been given. I am
prepared to assume, for the purpose of this appeal, that in those circumstances
section 26 of the Interpretation Act 1889 applies. On this hypothesis, it is
permissible to give the notice by means of a letter posted in the ordinary
post. So the result of section 26 may be that, once it is proved that such a
notice, in proper form, has been duly posted, there is a presumption that the
notice has been effected at the time when that letter, so posted, would be
delivered in the ordinary course of post. But of course the result of adopting
that method must be that, if the letter is not in fact delivered, or its
receipt is denied and cannot be proved, then notice has not been given. Here
the learned judge has found as a fact, after consideration of the evidence
before him, that the letter, not sent by registered post, not sent by recorded
delivery, was indeed duly posted but was never received by the solicitors to
whom it was addressed. Mr Payton’s point, as I understand it, is that by reason
of the provisions of section 26 of the Interpretation Act 1889 the judge, once
he had held that such a letter had been duly posted, ought to have applied the
presumption of the effecting of service at the time when the letter would have
been delivered in the ordinary course of post, unless the other party, to whom
the notice was required to be given, was able to prove the contrary: and to
prove it so as to satisfy some standard of proof the extent of which I am not
sure that I followed, but certainly a standard of proof that was higher than a
mere balance of probability. The judge, it is contended, erred because the
standard of proof which he applied was merely the balance of probabilities.
There is nothing in any of the authorities which have been cited to us, in my
opinion, which begins to give support to the existence of such a higher
standard of proof in such circumstances.
With regard to
the second issue argued before us by Mr Payton, the provisions of section 25
(5) of the Landlord and Tenant Act 1954 prescribe that the landlord’s notice
given under that subsection has to require the tenant, within two months after
the giving of the notice, to notify the landlord in writing whether or not he
is willing to give up possession. Mr Payton’s argument involves that, although
Parliament has required that that notice, if it is given, is to contain that
specific requirement, nevertheless that requirement is wholly without any
effect of any sort because the tenant receiving that notice is free, without
any sanction of any sort, to ignore the two months’ notice. In my judgment,
that would be a most remarkable provision in an Act of Parliament. In my
opinion, the words ‘duly notified’ in section 29 (2) must, as a matter of
sensible and ordinary construction–without reading words into the Act which are
not there–mean, and involve, that the tenant has duly notified the
landlord if, but only if, he has complied with the requirement which the
landlord is by statute obliged to put in the notice. That is, ‘duly’ means
‘within two months.’ It is said that, in
the circumstances of the case, the decision at which the learned judge arrived
involves very great hardship on the tenant. Indeed, I think that is so. But the
circumstances which combined to cause that hardship are not confined to the
strictness of the statutory provisions. I agree that the appeal must be
dismissed.
The appeal
was dismissed with costs, including the costs of an application to expedite the
hearing of the appeal.
