Landlord and tenant — Covenant to employ resident porter — Whether specifically enforceable — Action by tenants of block of luxury flats against landlords claiming specific performance of a covenant in the lease to employ a resident porter ‘(a) to keep clean the common staircases and entrance hall landings and passages and lift, (b) to be responsible for looking after and stoking the central heating and domestic hot-water boilers (c) to carry down rubbish from the properties to the dustbins outside the building every day’ — It appeared that there had been a porter in residence in the porter’s flat who had performed the services mentioned, but he ceased to be employed by the defendant landlords, vacated the flat and took employment at a nearby block — However, he continued on a part-time basis to carry out his former duties for the defendants while residing elsewhere — By a notice of motion in the action the plaintiffs sought, pursuant to Order 14, specific performance and damages, alternatively interlocutory relief, and, by a second motion, the appointment of a receiver of the rents and profits pending trial — Defendants contended that the duties enumerated in the lease were in fact being performed, although by a non-resident porter, and that consequently there was no breach — The judge held, however, that, even if the particular services mentioned in the lease were performed, the defendants were still in breach of the covenant to provide a resident porter — There was a world of difference between living in a block with a porter in residence and living in a block with no resident porter — The tenant benefited from the feeling of security and the opportunities to ask for help — A resident porter was valued not only for his actual duties but for his very presence — The question then arose as to whether the remedy of specific performance could be granted — Ryan v Mutual Tontine Westminster Chambers Association, where it was held that a contract to employ a porter was not specifically enforceable, was distinguishable and had been discussed in later authorities, such as C H Giles & Co Ltd v Morris, Shiloh Spinners Ltd v Harding and Tito v Waddell (No 2) — Held that it was, in the light of the authorities, open to the court to make an order for specific performance, and that the order should be made — There would be no need for protracted superintendence — Defendants would merely be doing what they had promised to do and had in fact done for the past 20 years — Order for specific performance granted
These were two
motions by the plaintiffs, Mr Posner and eight others, tenants of flats in
Danes Court, St Edmund’s Terrace, London NW8, and members of the Danes Court
Residents’ Association, against four defendants, Richard John Scott-Lewis and
three others, lessors of the flats. The motions were in an action for specific
performance of the defendants’ covenant in the lease to provide a resident
porter.
Romie Tager
(instructed by Beckman & Beckman) appeared on behalf of the plaintiffs; A R
Hochhauser (instructed by Malkin Cullis & Sumption) represented the
defendants.
Giving
judgment, MERVYN DAVIES J said: I have before me two motions by the plaintiffs
in this action: the first motion dated October 24 1985 seeks final judgment
under Order 14 with an alternative claim for interlocutory relief; the second
motion dated November 7 1985 seeks as a further alternative the appointment of
a receiver. The writ is dated August 29 1985. There are nine plaintiffs. The
plaintiffs are members of the Danes Court Residents’ Association. Danes Court
is a block of residential flats in St Edmund’s Terrace, London NW8. Each of the
plaintiffs is a tenant of a flat in the block. Thus the first plaintiff, the
chairman of the residents’ association, is the lessee of 4 Danes Court, the
second plaintiff, Mr Dayan, the secretary, is the lessee of 2 Danes Court, and
so on. There are 25 flats in the block together with a flat that has until
recently been occupied by a resident porter.
At the issue
of the writ the first defendant, Richard John Scott-Lewis, was made sole
defendant on the footing that he was the lessor or landlord to the plaintiff
tenants. On October 1 1985 the writ was amended to add the second, third and
fourth defendants, since it is common ground that the four defendants together
are the landlords of the flats in Danes Court. The defendants have been the
landlords since about 1982.
Each of the
plaintiffs holds his or her tenancy on the terms of a lease in writing. It is
common ground that all the Danes Court leases are in terms similar to the lease
which is exhibit SN 1 to an affidavit of Mrs S Nagel, the third plaintiff,
sworn on September 2 1985. This particular lease is that of Mr Dayan, the
second plaintiff. The lease is dated April 6 1964 and is made between Boyton
Developments Ltd ‘(hereinafter called ‘the Lessor’ which expression where the
context so admits includes the estate owner or estate owners for the time being
entitled to the immediate reversion to the property hereby demised expectant on
the term hereby granted)’ of the one part and Mr Dayan ‘(hereinafter called the
‘lessee’ which expression where the context so admits includes his assigns and
successors in title and the persons
defendants are now the lessors.
The lease
witnesses that in consideration of the sum of £8,500 the lessor demises Flat 2
on the ground floor of Danes Court to Mr Dayan (together with and subject to
various rights which I need not mention) for 99 years from December 25 1963 at
a yearly rent of £100.
There follow
various covenants by the lessee including these:
(4) To use the property exclusively as a private
dwelling or residence in single occupation only and the garage as a garage
incidental to the enjoyment of the property
(6) Not to use or permit or suffer the property
to be used for any trade business or profession or for any meeting thereon or
for any illegal or immoral purpose or in any manner whereby the character of
the properties in the building as high class residential properties may be
prejudiced or injured
(18) To observe and perform and conform to the
Management Regulations set forth in the Schedule hereto and to such other
reasonable rules and regulations as the lessor may from time to time properly
make for the orderly and better management of the building and the grounds
thereof upon being given notice in writing of such other reasonable rules
There are also
covenants by the lessor. These covenants include: clause 3(2), where the lessor
promises to maintain etc the main hall, staircases, lift, the central heating
system and the internal telephone system (which connects with the porter’s
flat); clause 3(7), a promise by the lessor to see that the common parts are
kept clean and lighted and — see clause 3(1) — to supply and maintain hot water
and central heating. There is a lessor’s covenant that I must quote in full.
Clause 3(11) reads:
(11) To employ (so far as in the Lessor’s power
lies) a resident porter for the following purposes and for no other purposes:
(a) To keep clean the common staircases and entrance hall landings and passages
and lift (b) To be responsible for looking after and stoking the central
heating and domestic hot water boilers (c) To carry down rubbish from the
properties to the dustbins outside the building every day.
Clause 3(12)
reads:
(12) To maintain repair and meet all overheads
outgoings and expenses in respect of the porter’s flat.
Clause 4 of
the lease provides for the lessee paying a proportion of the expenditure
incurred by the lessor in connection with the fulfilment by the lessor of the
obligations undertaken by clause 3 of the lease. I need not set out these
detailed provisions, but the effect is, inter alia, that the cost to the
lessor of providing a resident porter under clause 3(11) is recoverable in part
from the lessee. Thus with a similar provision in all the leases the lessor
will recover all his clause 3 expenditure. The clause 3 covenants are binding
on the lessor only while holding title to the reversion (see clause 5). I need
not mention the stipulations in the schedule, ie the Management Regulations,
save to quote regulation 1:
The entrance
doors of properties shall be kept shut and no owner shall on any account
whatsoever leave or permit to be left any invalid carriage or chair or any
bicycle perambulator box parcel refuse rubbish or any article whatsoever upon
or obstructing any part of the building used in common with other occupiers but
lessees shall each morning before nine am have ready within their properties
for removal in a proper receptacle the refuse of the previous day.
The writ
claims specific performance of the lessor’s covenant in clause 3(11) of the
plaintiffs’ respective leases of their respective flats, that is to say the
plaintiffs seek to compel the defendants to employ a resident porter for the
purposes itemised in 3(11). There is also a claim for damages by reason of the
defendants’ failure to employ a resident porter since June 1 1985. The issue of
the writ on August 29 1985 was followed by an ex parte order made by Walton J
on September 5 1985. The defendants were restrained until judgment or further
order from selling or leasing the porter’s flat. That order was made, as I
understand, because it was then supposed that the defendants were about to
dispose of the porter’s flat, and if that were done then the relief sought in
the writ might not be available.
The next step
to mention is that the plaintiffs served a statement of claim on October 2
1985. Particulars of the plaintiffs’ and defendants’ titles are given, and
complaint is made of the defendants’ failure to employ or seek to employ a
resident porter since June 1 1985.
There followed
on October 24 1985 the first notice of motion seeking, pursuant to Order 14,
specific performance as mentioned in the writ, with damages. In the alternative
there is a claim for an interlocutory mandatory order requiring the defendants
to take steps to employ a resident porter. Then, as I have said, there is the
second notice of motion dated November 7 1985 whereby there is sought, pending
trial, a receiver of all the rents, profits, service charges and other moneys
payable by the lessees of all the Danes Court flats.
I will now
mention some of the affidavit evidence read to me. The principal affidavit in
support of the motion was sworn by the honorary treasurer of the residents’
association, Mrs Nagel, the third plaintiff. In para 3 Mrs Nagel describes
Danes Court as a modern luxury block of flats (‘in the true sense of the term’)
which was completed in 1964, comprising 26 flats including the porter’s flat,
on eight floors. Some of the flats in the block have been sublet but all the
plaintiffs are residents save that Mrs Nagel, living in no 19 with her husband,
has sublet no 18. Mrs Nagel says she receives a rent of £1,300 a month for the
subletting of no 18. Mrs Nagel states that Danes Court ‘has until recently been
maintained to the highest standards with the recognised amenity of a resident
porter which distinguishes the true luxury flat from other flats in the
neighbourhood which do not offer this particular service’. In para 8 Mrs Nagel
says that there is a flat on the ground floor which has been occupied by the
resident porters, who have been employed successively since 1964. The flat
ceased to be so occupied on May 31 1985. The porter then in residence, Mr
Bewsher, ceased to be employed by the defendants on that date. Mr Bewsher took
up employment at a nearby block of flats called Kings Court. That is not in the
defendants’ ownership. However, it seems that there was some arrangement
between Mr Bewsher and the first defendant, because since June 1 1985 Mr
Bewsher has, to some extent at any rate, continued to carry out the works
specified in (a), (b) and (c) of clause 3(11). According to Mrs Nagel the work
is done inadequately and clearly it must be done on a part-time basis since Mr
Bewsher now has duties at Kings Court, where he resides.
There was a
meeting of some of the residents on July 11 1985. The first defendant attended.
In para 18 of the affidavit Mrs Nagel says this: ‘the defendant said that he
had made efforts to find a replacement for Mr Bewsher and he said he had interviewed
11 applicants’. There was a discussion at the meeting of certain repair works
which the defendants said would have to be carried out.
In this
connection Mrs Nagel says in para 19:
At this
point, the defendant returned to the earlier discussion about the required
remedial works and their costs. He said that in order to finance the building
works it would be necessary for him to consider selling the resident porter’s
flat. Mr Bennett intervened once again and asked the defendant why he had
bothered to interview 11 applicants for the job if he was proposing to sell off
the porter’s flat. To everyone’s astonishment, the defendant then conceded that
he had not in fact interviewed any applicants for the job, had not made any
efforts to do so, and had no intention of doing so. The defendant then put
forward a proposal that the lessees should pay him in advance the moneys which
would be required for the remedial works. He suggested that if an appropriate
scheme could be worked out it would not be necessary to sell the porter’s flat.
There is some
correspondence exhibited as SN 3 to Mrs Nagel’s affidavit extending over the
period June 6 1985 to August 20 1985. It illustrates the tenants’ concern at
being left without a resident porter, and in a letter dated August 16 1985
assurances are sought that the porter’s flat will not be sold and that a new
porter will be put in residence. No assurances being forthcoming, the writ was
issued.
There is then
a second affidavit of Mrs Nagel sworn on September 4 1985 exhibiting other
correspondence. I do not propose to refer to that exhibit (SN 4) since the
correspondence relates to old complaints. There is, however, one recent letter
there, dated July 2 1985, written by the first defendant, in which he was then
saying that he would be interviewing another caretaker on July 15 and that Mrs
Nagel had his assurance that it was not the intention to sell the caretaker’s
flat ‘at this juncture’. That letter was of course written before the meeting
dated July 11 1985 that I have mentioned.
A third
affidavit of Mrs Nagel sworn on October 24 1985 sufficiently verifies the facts
alleged in the statement of claim.
The first
plaintiff, Mr Posner, swore an affidavit on November 7 1985. Therein he seeks
to show the inconveniences suffered by reason of there being no resident porter
at Danes Court. The inconveniences include: (a) automatic timing of the
central-heating system deprives the tenants of the benefits resulting from a
resident porter exercising his discretion as to when heating should be put on
and off having regard to the prevailing weather conditions, (b) breakdowns in
the lift with the consequence that residents outside the lift have to seek help
for residents trapped in the lift, (c) there is difficulty in obtaining access
to the block, since access has to be obtained by disturbing a resident rather
than a porter, (d) recorded mail is sometimes difficult to deliver, and (e)
milk and newspapers often have to be left in the
On the
defendants’ side there are three affidavits, one by Mr Kenneth John Bewsher,
who was the resident porter until May 31 1985, and the other two by the first
defendant. Mr Bewsher bears out that he is now a resident caretaker at Kings
Court, 31 Prince Albert Road, NW8, and that prior to May 1985 he was the
caretaker at Danes Court, living in a flat there. He left Danes Court for Kings
Court because he was offered better pay. He says he resigned from his position
at Danes Court. Mr Bewsher goes on to say this in para 3: ‘Mr Scott-Lewis asked
me to stay on as I was only going to be approximately one minute away in the
adjacent block, and I agreed to do so.’
This means, as I understand, that while Mr Bewsher is employed as a
resident caretaker at Kings Court, he also works for Mr Scott-Lewis, so
apparently he is paid by two employers in respect of the same time. He says in
paras 5 and 6:
I am therefore
in a position to act as caretaker for both Kings Court and Danes Court. I spend
approximately 2 hours in the morning at Danes Court collecting the rubbish and
cleaning the common parts, and I also patrol in the afternoon and in the
evening. The central heating is on automatic and I order oil when appropriate.
I also continue to help out the various tenants from time to time and so far as
I am concerned I do exactly the same job now as I was doing when I was actually
resident in the premises, with no decline in standards whatsoever.
(6) All the tenants know where I am, which is
approximately one minute away, and they either telephone me or pop in to see me
to ask me to assist, which of course I am always willing to do.
Mr
Scott-Lewis, in his first affidavit sworn November 15 1985, gives evidence to
the same effect as Mr Bewsher, and indeed states that Mr Bewsher was asked to
carry out after May 1985 the same duties as he had carried out before that date
‘albeit on a non resident basis’. In his second affidavit sworn on November 20
1985, Mr Scott-Lewis refers to the fact that in his first affidavit he said he
had made efforts to obtain an ‘alternative porter which came to nought’. He
goes on (see para 2) to say this:
It is totally
incorrect to say that I am not performing the covenant set forth in clause
3(11) of the leases, as Mr Bewsher is doing exactly the same job to perform the
covenants as he was doing prior to May 31 1985 albeit that he lives
approximately 1 minute away from the block.
I say now that
I do not understand this statement because clause 3(11) obliges the defendants
to employ a resident porter and this they are not doing. I need not deal with
other matters in the Scott-Lewis affidavit, as it is largely concerned with a
denial of any falling-off in standards since Mr Bewsher ceased to reside.
There is reply
evidence by the plaintiffs. It is an affidavit by Mr Dayan sworn November 22
1985. Mr Dayan says (see para 7) that it is not the case that Mr Bewsher is now
carrying out the same duties as he did when resident: Dealing with the specific
duties mentioned in clause 3(11), Mr Dayan complains: (1) of a deterioration in
the maintenance of the common parts which ‘are beginning to look decidedly
shabby’. He comments on para 3 of the first affidavit of Mr Scott-Lewis where
it is suggested that the cleaning of the common parts and the emptying of
rubbish can be done in about two hours. Mr Dayan says that this is an
unrealistic estimate, since there are 26 flats on eight floors. He is satisfied
that it used to take Mr Bewsher, when he was in residence, considerably longer
than two hours to carry out those duties. (2) That the change to automatic
time-switching for the central heating means that the central-heating system is
operated much less satisfactorily.
As well as
making those references to the clause 3(11) tasks, Mr Dayan also refers to the
fact that in the past the resident porters at Danes Court have always performed
functions and services which have added to ‘the general amenity of the
residents of the block and the efficiency of the day-to-day running thereof’.
He itemises
some obvious advantages arising from the presence of a resident porter in the
way of giving access to tradesmen, deliveries and a better feeling of security.
Mr Dayan takes up Mr Scott-Lewis’ statement in para 4 of the first Scott-Lewis
affidavit where Mr Scott-Lewis says:
I am
surprised by the allegation that I stated that I had not interviewed people for
the post. I instructed my secretary to ask Park Estates to advertise for a new
caretaker and as a result 11 people were interviewed. There was not one
suitable applicant.
Mr Dayan says
there will be no difficulty in finding a resident porter for Danes Court. Mr
Dayan advertised in The Standard on September 2 1985. A copy of the
advertisement is in exhibit LD 2. There were 20 applications received in
response to that advertisement, the applications being included in exhibit LD
2.
The
plaintiffs’ principal claim, pursuant to Order 14, is in these terms:
(1) Specific performance of the lessors’ covenant
in clause 3(11) of the plaintiffs’ respective leases of their respective flats
(and garages in the case of the third and fifth plaintiffs) in Danes Court, nos
1 – 5 St Edmunds Terrace, London NW8 to employ (so far as in the defendant’s
power lie) a resident porter for the purposes more particularly set forth in
the said clause 3(11).
That is to
say, the plaintiffs claim in effect that the defendants are now failing to
employ, pursuant to clause 3(11), a resident porter for the purposes specified
in clause 3(11), and that the defendants ought to be ordered so to employ. It
is admitted that the defendants do not now employ a resident porter for
the purposes specified or for any purpose. Mr Hochhauser for the defendants
accepted that no resident porter is employed, and as much is to be inferred
from para 2 of Mr Scott-Lewis’ second affidavit. However, Mr Hochhauser submitted
that the defendants were not in breach of clause 3(11) since, he said, all the
duties that are to be performed in (a), (b) and (c) of clause 3(11) are in fact
being discharged, and the fact that those duties are being discharged by a
non-resident as opposed to a resident porter does not justify the view that
there is a breach of clause 3(11). Mr Hochhauser went on to say that at least
the defendants should have the opportunity of a trial, so that, in so far as
there is in the affidavit evidence a conflict about the present adequacy of the
porterage (within (a), (b) and (c) of clause 3(11)), the position can be
clarified by oral evidence.
I do not
accept Mr Hochhauser’s submission. If one assumes, as the defendants allege,
that Mr Bewsher is discharging his (a), (b) and (c) duties now as he did before
May 31 1985, there is in my view still a clear breach of clause 3(11). Clause
3(11) indicates that: (a) there will be a porter in residence and (b) that he
will perform certain functions. To arrange for his functions to be carried out
by a non-resident cannot in my view discharge the defendants from their duty to
keep a porter in residence. There is, to my mind, a world of difference between
living in a block with a porter in residence and living in a block where there
is no porter in residence. A tenant in a block of flats understandably attaches
great importance to the presence of a resident porter. While the tenant no
doubt appreciates the manual work that the porter may perform, he equally
appreciates the feeling of security (and the opportunities to ask for help)
that arises from the presence of a resident porter. In other words, a resident
porter is valued not only for the duties he is expected to perform but also for
his very presence.
I am therefore
of the view that the defendants are in breach of clause 3(11). I see no reason
for sending the matter for trial to discuss that matter.
Since I am of
the view that the defendants are in breach of clause 3(11), the question arises
whether or not clause 3(11) is a provision susceptible of specific performance.
I was referred
to Ryan v Mutual Tontine Westminster Chambers Association [1893]
Ch 116. That is a case where (see p 123) the Court of Appeal considered a
contract between a landlord and his tenant by which the landlord undertook to
employ a porter to perform certain services for the benefit of the tenant. The
contract was held to be not specifically enforceable. One ground of the
decision was that the execution of the contract would require ‘constant
superintendence but the court’: see p 123 and p 125.
A close
examination of the facts in the Ryan case as set out at pp 117 to 120
shows the situation in that case differs in some respects from the situation
before me. For example, in the Ryan case the porter was to ‘be and act
as the servant of the tenants’. That is not so at Danes Court. Again the Danes
Court lease has, but the Ryan lease has not, covenants by the lessor
whereby the porter’s duties are, at any rate as to (a) and (b) of clause 3(11),
elsewhere in the lease seen as direct obligations of the lessor to the lessee.
See clause 3(2), (7), (10) and (13). There is also the fact that the scheme of
apportioning service charges between the Danes Court tenants involves taking
account of the costs of maintaining and repairing the porter’s flat: see clause
3(12).
Drawing
attention to these differences between Ryan and the present case, Mr Tager
for the plaintiffs submitted that Ryan should be distinguished. In
short, he said that since the resident porter’s functions at Danes Court were
already obligations of the lessors to the lessees, there were no duties on the
part of the porter towards the tenants that the tenants were seeking to
enforce. All that was required was the appointment of a resident porter,
whereas in Ryan the plaintiff was in effect seeking to enforce
performance of duties said
able argument. I suspect that it is difficult to distinguish the Ryan
case. However that may be, the Ryan case has been remarked upon in many
later authorities.
In C H
Giles & Co Ltd v Morris [1972] 1 WLR 307 Megarry J, after
referring at p 316 to Ryan’s case, says this at p 318:
One day,
perhaps, the courts will look again at the so-called rule that contracts for
personal services or involving the continuous performance of services will not
be specifically enforced. Such a rule is plainly not absolute and without
exception, nor do I think that it can be based on any narrow consideration such
as difficulties of constant superintendence by the court. Mandatory injunctions
are by no means unknown, and there is normally no question of the court having
to send its officers to supervise the performance of the order of the court.
Prohibitory injunctions are common, and again there is no direct supervision by
the court. Performance of each type of injunction is normally secured by the
realisation of the person enjoined that he is liable to be punished for
contempt if evidence of his disobedience to the order is put before the court;
and if the injunction is prohibitory, actual committal will usually, so long as
it continues, make disobedience impossible. If instead the order is for
specific performance of a contract for personal services, a similar machinery
of enforcement could be employed, again without there being any question of
supervision by any officer of the court. The reasons why the court is reluctant
to decree specific performance of a contract for personal services (and I would
regard it as a strong reluctance rather than a rule) are, I think, more complex
and more firmly bottomed on human nature. If a singer contracts to sing, there
could no doubt be proceedings for committal if, ordered to sing, the singer
remained obstinately dumb. But if instead the singer sang flat, or sharp, or
too fast, or too slowly, or too loudly, or too quietly, or resorted to a dozen
of the manifestations of temperament traditionally associated with some
singers, the threat of committal would reveal itself as a most unsatisfactory
weapon: for who could say whether the imperfections of performance were natural
or self-induced? To make an order with such
possibilities of evasion would be vain; and so the order will not be made.
However, not all contracts of personal service or for the continuous
performance of services are as dependent as this on matters of opinion and
judgment, nor do all such contracts involve the same degree of the daily impact
of person upon person. In general, no doubt, the inconvenience and mischief of
decreeing specific performance of most of such contracts will greatly outweigh
the advantages, and specific performance will be refused. But I do not think
that it should be assumed that as soon as any element of personal service or
continuous services can be discerned in a contract the court will, without
more, refuse specific performance. Of course, a requirement for the continuous
performance of services has the disadvantage that repeated breaches may
engender repeated applications to the court for enforcement. But so may many
injunctions; and the prospects of repetition, although an important
consideration, ought not to be allowed to negative a right. As is so often the
case in equity, the matter is one of the balance of advantage and disadvantage
in relation to the particular obligations in question; and the fact that the
balance will usually lie on one side does not turn this probability into a
rule. The present case, of course, is a fortiori, since the contract of
which specific performance has been decreed requires not the performance of
personal service or any continuous series of acts, but merely procuring the
execution of an agreement which contains a provision for such services or acts.
Those
observations do not of themselves enable me to disregard Ryan’s case. But then
one comes to Shiloh Spinners Ltd v Harding [1973] AC 691. At p
724 (C-D) Lord Wilberforce seems to say that ‘the impossibility for the courts
to supervise the doing of work’ may be rejected as a reason against granting
relief. Finally there is Tito v Waddell (No 2) [1977] Ch 106. At
p 321 Megarry V-C says this:
In cases of
this kind it was at one time said that an order for the specific performance of
the contract would not be made if there would be difficulty in the court
supervising its execution: see, eg Ryan v Mutual Tontine Westminster
Chambers Association [1893] 1 Ch 116, especially at pp 123, 125, 128. Sir
Archibald Smith MR subsequently found himself unable to see the force of this
objection (see Wolverhampton Corporation v Emmons [1901] 1 QB
515, 523); and after it had been discussed and questioned in C H Giles &
Co Ltd v Morris [1972] 1 WLR 307, 318, the House of Lords disposed
of it (I hope finally) in Shiloh Spinners Ltd v Harding [1973] AC
691, 724. The real question is whether there is a sufficient definition of what
has to be done in order to comply with the order of the court. That definition
may be provided by the contract itself, or it may be supplied by the terms of
the order, in which case there is the further question whether the court
considers that the terms of the contract sufficiently support, by implication
or otherwise, the terms of the proposed order.
In the light
of those authorities it is, I think, open to me to consider the making of an
order for specific performance in this case; particularly since the order
contemplated is in the a fortiori class referred to by Megarry J (as he
then was) in the last sentence of the extract from the Giles case quoted
above. Damages here could hardly be regarded as an adequate remedy.
Whether or not
a specific performance order should be made seems to me to depend on the
following considerations: (a) Is there a sufficient definition of what has to
be done in order to comply with the order of the court? (b) Will enforcing compliance involve
superintendence by the court to an unacceptable degree? (c) What are the respective prejudices or
hardships that will be suffered by the parties if the order is made or not
made?
As to (a), one
may in this case sufficiently define what has to be done by the defendants by
ordering the defendants, within, say, two months, to employ a porter to be
resident at Danes Court for the purpose of carrying out the clause 3(11)
duties. It is to be borne in mind that there is still a vacant flat available
for a resident porter. As to (b), I do not see that such an order will occasion
any protracted superintendence by the court. If the defendants without good
cause fail to comply with the order in due time, then the plaintiffs can take
appropriate enforcement proceedings against the defendants. As to (c), I see no
hardship or prejudice resulting to the defendants from the order. They will
simply be performing what they have promised to do and what has been carried
out by the lessors over the past 20 years. On the other hand I see considerable
inconvenience, if not exactly hardship, for the plaintiffs if, having bargained
for a resident porter and paid a premium and having enjoyed his presence for 20
years, they are to be expected for the future to be content with a porter who
simply walks up and down the stairs for two hours only during the day doing his
cleaning and refuse collection. It follows that there should be an order for
specific performance. I should add that Mr Hochhauser referred to the four Shelfer
conditions as set out in Federated Homes Ltd v Mill Lodge Ltd
[1980] 1 WLR 594 at p 607E. There Brightman LJ says:
There remains
only the question whether we ought to interfere with the remedy granted by the
judge of an injunction against the building of the 32 extra dwellings. Shelfer
v City of London Electric Lighting Co [1895] 1 Ch 287 is authority for
the proposition that a person who has the benefit of a restrictive covenant is,
as a general rule, entitled to an injunction on the trial of the action as
distinct from an award of damages unless (1) the injury to the plaintiff’s
legal rights is small, (2) it is capable of being estimated in terms of money,
(3) it can adequately be compensated for by a small payment, and (4) it would
be oppressive to the defendant to grant an injunction. In my view, the first,
third and fourth of these conditions have not been shown to be satisfied.
Mr Hochhauser
said that all four conditions were satisfied so that the appropriate remedy for
breach of clause 3(11) was damages and not the specific relief. If and in so
far as it is appropriate to consider the four conditions in the circumstances
of this case, I am satisfied that not one of the four conditions can be
answered in the defendants’ favour.
Mr Tager at my
invitation in the course of the hearing drafted a proposed order. The draft is
elaborate. I am content to make an order based on that form, but since it is so
extremely detailed I think I will give Mr Tager the opportunity of putting it
in a minute with a simpler form of order. He may be able to do that with Mr
Hochhauser’s collaboration. Mr Hochhauser may wish to collaborate, since a simpler
order will save the cost of working out the details involved in the original
Tager draft. The order will provide for an inquiry as to damages in respect of
the time since May 31 1985.
In the light
of the order for specific performance, it is not necessary for me to say
anything about the other relief claimed in the first notice of motion or about
the relief claimed in the second notice of motion.