Agricultural holding — Questions as to service by landlords of notice to quit farm and as to whether the landlords were precluded by agreement or by estoppel from relying on a notice to quit — Appeal by landlords from decision of county court judge in favour of tenant — Judge had found that there had been an agreement by which, in consideration of the tenant’s falling in with an amalgamation scheme proposed by the landlords, he would be safeguarded against future encroachment on his farm for the purpose of afforestation — Judge reached an alternative finding to the same effect on the basis of estoppel by representation — Court of Appeal upheld the judge’s decision in favour of the defendant on this issue, which was sufficient to dismiss the appeal — However, they also gave their decision on another issue raised in the appeal, namely, whether the judge had been correct in finding that a notice to quit had not been left at the address of the tenant within the meaning of section 92(1) of the Agricultural Holdings Act 1948 — They were prepared to decide this point because it was relevant to the tenant’s liability on a second notice, namely, a notice requiring an increase in rent, which was claimed to have been served in the same way — The issue as to service was whether a notice to quit, put through a letter-box in a door on the back porch of the farmhouse and not actually received by the tenant, was served on him — Judge had decided that landlords had not discharged the onus of proof of service — In reaching this conclusion the judge had taken the view that the evidence given by a single witness on behalf of the landlords and that given by two witnesses on behalf of the tenant, all being witnesses of truth, were mutually exclusive, and that the evidence for the tenant should be preferred — The Court of Appeal held that the judge was wrong in deciding that the evidence was irreconcilable and in rejecting the detailed evidence given by the landlords’ witness — Appeal, however, dismissed on the first issue — Newborough v Jones considered — Observations on taxation of costs on the common fund basis, the judge’s order on this basis being upheld
This was an
appeal by Mr E L Datnow, Mr A D Datnow and Mr J A Datnow, the landlords of a
holding known as Ystradffin Farm, Rhandirmwyn, in the county of Dyfed, from a
decision by Judge Michael Evans QC at Ammanford County Court in favour of the
tenant, William Jones. The judge decided that a notice to quit the holding had
not been served on the tenant and that in any case the notice was
unenforceable.
Robert Pryor
QC and Joanne Moss (instructed by Janners) appeared on behalf of the appellant
landlords; G M Godfrey QC and G W Roddick (instructed by Arnold Davies &
Co, of Lampeter, Dyfed) represented the respondent tenant.
Giving
judgment, CUMMING-BRUCE LJ said: On September 15 1983 His Honour Judge Michael
Evans QC made the following orders:
that judgment
be entered for the Defendant on the claim and on his counterclaim AND IT IS
DECLARED That the Notice to Quit purported to be served upon the 26th day of September
1980 was not served and is of no effect. AND IT IS DECLARED that the Notice to
Quit served upon the 30th day of July 1981 was served contrary to the agreement
between the parties and is unenforceable. AND IT IS DECLARED that the holding
known as Ystradffin Farm, Rhandirmwyn in the County of Dyfed is held by the
Defendant upon a tenancy from year to year commencing from the 29th day of
September in each year. AND IT IS ORDERED that the Defendant do recover against
the Plaintiff his costs of this action to be taxed on Scale III on a Common
Fund Basis in default of agreement.
The learned
judge made a second order which said:
IT IS ORDERED
that the Plaintiffs by themselves, their servants, agents or otherwise be
restrained and an injunction is granted restraining the Plaintiffs from serving
any Notice or Notices to Quit upon the Defendant requiring possession of the
holding known as Ystradffin Farm, Rhandirmwyn, in the County of Dyfed or any
part thereof for the purposes of afforestation during the currency of the
tenancy of the Defendant.
The plaintiffs
appeal, and by their appeal they raise three main issues: whether the notice to
quit dated September 26 1980 was properly served on the defendant; if so,
whether the notice to quit described with sufficient certainty the land to
which it related, and whether in any event the plaintiffs had agreed not to
serve such notice to quit or alternatively were estopped from doing so.
In the course
of argument, after hearing the argument concluded on the question as to whether
in any event the plaintiffs had agreed not to serve such notice to quit or
alternatively were estopped from doing so, the court indicated that it had
decided to dismiss the appeal upon that issue. The first issue to which I
therefore address myself is that issue.
In his
judgment, the learned judge sufficiently set out the background of the history
of the relationship between the plaintiffs, the landlords, and the tenant. It
is unnecessary for me to do more than to summarise very concisely what that
background is.
Since 1934 the
defendant had been tenant of a hill farm as described. At that date his
landlord was the then Lord Cawdor. He held the farm on a yearly tenancy subject
to 12 calendar months’ notice, terminating on any September 29. Of course, such
tenancy was subject to the provisions of the Agricultural Holdings Acts on the
statute books from time to time.
In 1969 Lord
Cawdor’s interest was purchased by the plaintiffs, as I understand it, as
trustees of a family trust. It is common ground that the interest of the
trustees in purchasing the land was in order to develop it as far as
practicable and economical for purposes of afforestation. From 1971 until 1974
there was a series of negotiations conducted on the part of the trustees by a
Mr B J Crichton [partner of Cooke & Arkwright].
In 1971 the
project was a reorganisation of the land, the details of which it is
unnecessary to describe. On September 3 1971 Mr Crichton wrote to the defendant
putting forward an offer. He proposed to reorganise the parcels of the tenancy
in the respects stated in the letter. In the letter putting forward that offer,
Mr Crichton recited that:
In addition
it was stated that the trustees would be prepared to give you an undertaking
that they would not further increase the rent for your holding, in the event of
your being able to agree these proposals, for a period of five years from the
date on which the new rent awarded at the arbitration comes into effect and
further that an assurance could be given to you that no more land would be
taken from you for afforestation purposes. Naturally, if the trustees
should carry out any improvements on the holding such as for example, new
buildings then obviously additional rent might be called for.
The defendant
did not accept the offer set out in the letter of September 3, and it is
perfectly plain as a matter of law that, having regard to the rejection of the
offer, the assurance which was contingent upon acceptance fell to the ground.
That, so far from being the end of the story, is only the beginning of the
story.
I come
straight to the negotiation in 1974 when Mr Crichton, on behalf of the
plaintiffs, came back to the attack, if that is the right way of putting it,
with a proposal for a scheme which I think is described as a ‘scheme of
amalgamation’. The blessing of a statutory body would be required for this
scheme, which appeared to be a very sensible proposal because, if implemented,
it would enhance the opportunities for husbandry on the defendant’s reorganised
holding and would also be a long-term benefit to the landlords, both by the
enhancement of their reversion and in other ways described in the
correspondence.
Eventually, in
spite of some initial uncertainties, the defendant agreed to the amalgamation.
As appears sufficiently from a scrutiny of the internal correspondence from Mr
Crichton to his clients, a prominent factor inhibiting the defendant from
agreeing to an otherwise sensible proposal, which he recognised would be to his
advantage, was what Mr Crichton described as the defendant’s anxiety about his
security. There was room for real anxiety for this reason. If the landlords
decide to acquire for afforestation purposes part of a tenanted farm, the
statutory provisions afford them rights which are more favourable to the
landlords than in the case of acquisition of tenanted land for other purposes.
It is quite obvious from the evidence, as well as the contemporary internal
communications, that the defendant was concerned to withhold his consent to
agreement to the offer then being made by the landlords by reason of his worry
that at some future date in the course of his tenancy the landlords would serve
notice requiring the tenant to transfer to the landlords part of the tenant’s
hill farm for the purposes of afforestation.
One has only
to look at the 6-in plan exhibited in these proceedings to appreciate the real
advantages to the landlords of gradually, when the time was right, acquiring
more and more of the top land for purposes of afforestation, which would have
to be at the expense of the tenant, because it would restrict the acreage
available to the tenant for running his sheep.
The judge
heard the evidence of Mr Crichton and of the tenant, the defendant, about the
discussions which then proceeded, culminating in the agreement of the tenant to
the amalgamation scheme which, as I have said, offered real husbandry
advantages to the tenant.
I find it
unnecessary to go through by recitation the passages of the evidence given by
Mr Crichton in chief and again in cross-examination about the effect of the
communications that he then made to the defendant with regard to giving the defendant
the assurance that he required to the effect that if he agreed to an
amalgamation scheme as proposed by the landlords, he would be safe from a
future invasion of his farm for the purpose of afforestation of the upper land.
For the
purposes of this appeal it is important for this court to bear in mind that,
the proceedings being in the county court, we have not got a verbatim
transcript of the evidence given by the witnesses. We have to work from a note
of the evidence presented to this court. When one reads the note of Mr
Crichton’s evidence, that evidence, if accepted by the learned judge, as it
was, affords abundant basis for two findings made by the judge: whether it is
right to describe the agreement that the landlords would not seek, by exercise
of statutory rights, to reduce the parcels of the amalgamated tenancy for the
purposes of afforestation as part of the agreement which led to the new tenancy
or as an agreement collateral to the agreement for a new tenancy, there was
such an agreement.
I would not
only say that the evidence as recorded in the note was sufficient to afford the
judge a foundation for a finding of such agreement but I would go further. That
evidence of Mr Crichton, together with the evidence of the defendant, makes it
perfectly plain that there was such an agreement.
The judge also
approached the matter from the point of view of estoppel. There was abundant
foundation for the alternative finding made by the judge that by their
representation through Mr Crichton the plaintiffs estopped themselves from
serving any notice to quit part of the defendant’s holdings for the purposes of
afforestation on the part of the landlords during the tenancy of the defendant.
Mr Pryor, with
characteristic delicacy and judgment, submitted that even if there were such an
agreement or assurance, the term for which such agreement or assurance was to
operate was to be limited by the attainment on the part of the tenant of normal
retiring age, ascertained by reference to his prospective rights for retirement
pension from the Crown or whatever agency it is that pays such retirement
pensions.
That
submission was founded on the references to 16 years during which the tenant
would have the opportunity to recoup any capital expenditure that he invested
in the reorganised parcels of the tenancy. It is perfectly plain that Mr
Crichton did represent to the tenant that, if he agreed, one of the advantages
would be that over the next 16 years before he was 65 the tenant would have the
opportunity to recoup capital expenditure.
Having said
that, I entertain no doubt at all that the evidence of Mr Crichton was
sufficient to lead the judge, if he accepted it, to the view that the tenant
would know that if he took the opportunity then offered by Mr Crichton, the
farm being farmed at the tenant’s death or retirement, without any
specification as to when he was to retire, would be the improved farm as
envisaged by the scheme. As Mr Crichton said, according to the note: ‘This was
the effect of what I was telling him.’
Having read
and reread the evidence of Mr Crichton and the defendant, I entertain no doubt
at all that the representation and agreement made was that as long as the
defendant was tenant of the farm he would enjoy the farm with the parcels
envisaged by the scheme. Thus the landlords, by their agent, agreed not by
notice to quit to seek any reduction of the parcels of the farm in the future
during the continuation of the tenancy for the purposes of afforestation.
Having formed
that view on that third issue raised by the appeal, it is sufficient to dispose
of the appeal. Another issue was raised on the appeal, and Mr Pryor invited us
to examine that issue, namely whether the judge was correct in finding that the
notice to quit had not been left at the address of the tenant, although it was
no longer an issue which was relevant for the purposes of determining the
appeal. As I understood it, without dissent from Mr Godfrey, we indicated that
we would make our finding on that issue raised by the notice of appeal, because
it was likely to be relevant to the liability of the tenant upon a second
notice which purported to have been left at the same address and thus served,
namely a notice requiring an increase of rent.
We thought it
would be ridiculous to put the parties in the position of starting other
litigation about that, and as the issue was raised and argued on the appeal we
decided to deal with it.
The first of
the three issues described in the notice of appeal raises a simple question of
fact because, by section 92(1) of the Agricultural Holdings Act 1948, personal
service of a notice to quit is lawfully effected by leaving the notice at the
proper address of the tenant. As the case of Newborough (Lord) v Jones
[1975] Ch 90 dramatically illustrates, it is irrelevant to that question of
fact whether the tenant received the notice. The evidence of service on which
the plaintiffs relied was the evidence of Mr Affleck, an assistant land agent
with the firm of John D Wood. We do not know the detail, but it seems clear that
John D Wood had allowed or been forced to allow so much time to pass that the
notice to quit had to be served in a matter of hours if their client was to
avail himself of a notice operating without loss of a further year.
We have a note
of the evidence given by Mr Affleck. He described how he took the A4 envelope
with two copies of the notice, each with a plan annexed, and drove first to
Port Talbot, where he had a job to do. He then proceeded to do his duty to
serve the notice at Ystradffin Farm and then a review notice at Nantyglo Farm.
He described how Mr Parry [his superior] had told him to go to the local pub in
Rhandirmwyn in order to get advice on how to get on to the farm. He said:
‘Checked with bar staff where I was to go.’
He had a look
at an AA road map and then used a large-scale plan, being one of those in the
envelope, to check the route to Ystradffin Farm. I have not tried to scale the
journey, but, looking at the 6-in plan, it looks to me as if it was 3 or 4
miles through hilly country.
In evidence,
Mr Affleck said he got to the right farm ‘with little difficulty’. He had a
look at some photographs of the farm that were shown to him and said that he
went to that farm. He parked at the bottom of the garden by a farmbuilding. He
went to the front door. There was no letterbox. He knocked on the door — there
was no answer. I interpolate that I do not suppose that that surprised him,
because he knew that the tenant was away. He went on to say that he walked to
the back porch. He checked that the notices and plan and letter were in the
envelope and then sealed it. He put it through the letterbox and got back into
the car. He said he had been told the distinguishing feature was a new sheep
shed to the side and front of the house. There was no other site with such a
building as this. The notice went in unfolded. He noticed a range of stables
which Mr Parry had mentioned. William Jones has been a breeder of Welsh ponies.
He saw the name ‘Towy Valley Pony Stud’ was written on the side of a horse box.
This name is on his cheques. He said he noticed the name at the time.
Then he
described how, nearly a year later, he went back to the farm with Mr Parry and
met Mr Jones at this same place.
In
cross-examination he said that this was: ‘My first visit to the farm. I asked
others for confirmation from (Port Talbot) and at pub. I was told to be
absolutely certain that I was in the right place. Consulted map in the
car.’ He said that he spent quarter to
half an hour in the pub. He said he: ‘Didn’t take much notice of the farms or
area until I got to far side of village. I was told that Mr Jones would not be
there (because he had) gone on holiday to Ireland.’ He took an AA road map. ”Towy Bridge Inn’
beside the bridge. I saw everything I saw on my first visit when I went on my
second visit.’
It was put to
him that it was not this farm that he called at. His answer was: ‘I have no
doubt that I called at right place.’ He
had written a memo when he got back to the office recording his visit to the
farm. He could not recall an envelope addressed in the outer envelope. He said:
‘I could take plan out without taking out other does’. He said: ‘I took plan
out and I checked them later.’ Then he
went on to the next place.
During a
further cross-examination he said he thought that the door appeared closed. He
knocked on both doors but could not remember whether or not he had used the
bell.
That was the
evidence of service which the plaintiffs relied upon. What did the judge say
about Mr Affleck as a witness? The judge
also heard the evidence of David and William Jones. He was quite satisfied,
after hearing David Jones, that David Jones had never consciously seen the
envelope which Mr Affleck said he had put through the letterbox when he
returned to the farm on Saturday, which is presumably the day when he would
next have gone to the farm, assuming that he had left the farm and not returned
to the farmhouse after Mr Affleck had been there. The judge was also satisfied
that William Jones was a reliable witness when he said that he had never seen
this envelope.
At that stage,
therefore, the evidence amounted to this. Mr Affleck, who as the judge rightly
said gave a circumstantial account, described how he had gone to the farm and
after going to the front door, where there was not a letterbox, went round to
the back and put the envelope through the letterbox, being confident, for the
reasons that he gave in his evidence, that he had gone to the right farm. The
Jones’ evidence proved to the satisfaction of the judge that neither David nor
William had ever seen the envelope.
The judge said
of those three witnesses that on the face of it they were people of honesty and
truth, so that as far as demeanour goes, the demeanour of Mr Affleck was the
demeanour of a witness of honesty and truth. In the passage that has been
criticised by Mr Pryor, the judge said: ‘I have two witnesses apparently
telling me the truth but if I accept them both I will be accepting mutually
exclusive testimony.’ That, it is submitted
on behalf of the appellant, is the Achilles heel of this judgment. The question
of fact which the judge had to decide was not whether David or William had ever
got the order but whether Mr Affleck had left it at the proper address of the
tenant.
If David had
been standing on the other side of the door when Mr Affleck put the envelope
through the door, and David said: ‘I never saw it’, then there would be a
situation of two witnesses giving mutually exclusive testimony. That was not
this case, because the leaving of the envelope was at Ystradffin Farm, and
William was away from home enjoying himself on a little holiday in Ireland. On
the evidence, the back door was not kept locked, and workers on the farm were
apparently at liberty to go through that door and go to the lavatory immediately
opposite the back door if they needed to while they were working about the
farmbuildings. On Friday there may or may not have been farm servants about —
the evidence is silent about it. On Saturday, as I read the evidence, David
would probably be the only person likely to go into the farmhouse.
There is thus
an interval of time. The envelope is pushed through the letterbox (if it was
pushed through) some time in the afternoon of Friday. David may not have gone
back to the farm on Friday after Mr Affleck did his job, but he would have gone
back to the farm, and indeed did go back to the farm, on Saturday, at some
uncertain time. If Mr Affleck’s recollection is accurate, there was an interval
of anything from 12 to 24 hours, during which time the envelope was lying on
the floor, because there was not a cage to catch the correspondence. During
that time, if it had been on the floor, it is possible that something might
have happened to it so that it was no longer obviously visible, or something
might have happened to it by the intervention of a third party which removed it
from the floor.
Those are the
issues of probability which the judge never expressly examined, although he had
been referred to the case of Newborough (Lord) v Jones and
so appreciated that leaving the notice at the proper address was a different
fact to receiving the notice. As one examines the judgment, one observes that
the judge took much trouble to decide whether he ought to accept the evidence
of David and William Jones, and he did decide to accept them both. He then
evidently decided that he could not accept Mr Affleck’s evidence without
rejecting the evidence of David and/or William.
Mr Pryor
submits that that is plainly wrong. With some reluctance I agree with him. I
have come to the conclusion, I hope without being pedantic, that this was a
vice in the judge’s analysis which had a material effect upon the way in which
he set about deciding whether the plaintiffs had discharged the onus which lay
upon the proving of service of the notice. The judge accepted that by his
demeanour Mr Affleck was to be regarded as a witness of honesty and truth, and
he had given an apparently unshaken detailed description of his journey to the
farm and the occasion when he shoved the envelope through the letterbox.
The judge
directed himself that the onus of proving notice was on the plaintiffs, which
of course was right, but, thinking that he could not accept the evidence of Mr
Affleck without rejecting the evidence of David, he seemed to have come to the
conclusion that as the only evidence of service was that of the single witness,
he should not accept it because it would involve rejecting the evidence of both
David and William.
In the final
passages of the judgment dealing with this issue the learned judge said this:
‘The onus being on the plaintiffs to satisfy me that the notice was left at
Ystradffin, I say that I am not satisfied on all the evidence that it was left
at Ystradffin and thus was not served.’
He goes on to another matter and then says: ‘In a sense the plaintiffs
have only themselves to blame since if Mr Parry had been able to contact
William Jones to confirm that he had the notice all would have been well . . .
It would not take much ingenuity to support the evidence of service by a second
witness or a confirmatory letter.’
With respect
to the judge, all that statute requires is proof of service by leaving the
notice at the proper address of the tenant. Though as a matter of evidence Mr
Affleck might have taken half-a-dozen people along with him, the question of
fact was that Mr Affleck, apparently honest and truthful, was giving a
circumstantial account of putting the envelope through the letterbox. Is there
any good reason for rejecting that apparently truthful evidence?
The judge
decided that there was. I am satisfied that the real reason why the judge
rejected Mr Affleck’s evidence was that he thought that he could not accept it
without rejecting David’s evidence and/or William’s evidence. He did go
further, because he does state that Mr Affleck was vague about certain aspects
of the matter. He referred to only one copy of the plan when there were two. Mr
Godfrey rightly submits: ‘Here is a finding by the judge that Affleck was vague
which explains why the judge did not regard his evidence as reliable, and it is
only if the evidence was reliable that the judge could have accepted it.’
Of course the
judge does not have to state all the reasons which led him to the conclusion
that a witness was too vague to be relied upon, but the only reason that he
gave, which was that Mr Affleck referred to only one copy of the plan when
there were two, cannot be regarded as a ground for doubting the testimony of Mr
Affleck.
In my view, the
judge never carried out the probative analysis which was appropriate, which
would have been this. Mr Affleck appears to be honest and truthful, but in the
ordinary affairs of life one would have expected that if he had done what he
said he did David would have received the envelope the next day. Having regard
to the interval of time, the fact that the door was unlocked and that people
could go in and out, as a matter of probability is it so likely that
the envelope should still have been on the floor when David arrived the next
day that it justifies me in rejecting the apparently truthful account given by
Mr Affleck of his actions on the Friday?
In my
judgment, with respect to the learned judge, if he had attempted to analyse the
evidence in that way, he should have concluded: ‘Affleck seems honest,
truthful, and apparently reliable. Does the fact that David never got the
envelope give rise to such a strong probability that the envelope never got to
the floor that I should reject the apparently truthful testimony of
Affleck?’ Had the judge set about it in
that way, in my view he would and should have concluded that there were enough
uncertainties about what might have happened to the letter after it reached the
floor that it was not right to reject the apparently truthful and detailed
evidence given by an apparently honest man.
We have been
rightly referred by counsel to the well-known passages about the importance of
the Court of Appeal sticking to its own job and not usurping the functions of
the trial judge who had seen and heard the witnesses. I thought long about one
solution which I eventually rejected as too unattractive to be acceptable. That
was to say: ‘The judge, I am forced to conclude, set about the analysis the
wrong way; Latey J and I have not heard Affleck or anybody else; let there be a
new trial so that another judge hears Affleck all over again and hears William
and David all over again and has a look at the photographs and all the rest of
it, and then makes up his mind.’ I may
be wrong, because it is no part of my business to try to be kind to people
against their will, but I did think that it would be a terrible thing on the
history of this case to take the course of condemning the parties to another
round in the county court and a rehearsal of the evidence of fact. I decided
that I was sufficiently confident, in spite of the limitations of the material
before me, to decide what the right answer would be and must be at the end of
another hearing at first instance.
For those
reasons I would move that, though it is obiter to the issue which we have
decided on other grounds, the judge was wrong in holding that the notice to
quit was not left at the proper address of the tenant.
The second
matter identified in the notice of appeal for decision is the question whether
the notice was certain, as the judge held that it was uncertain. There is no
good reason why this court should decide that issue, which is unnecessary as a
matter of decision and which would, in my view, serve no practical purpose. I
would therefore refuse to decide that issue.
That brings me
to the judge’s order for costs. The judge’s order was that the plaintiffs
should pay the costs on a common fund basis. That is an order which the court
makes only if there are sufficient grounds to make it just to depart from the
usual order of costs to be taxed as between party and party. The judge gave no
reasons. I am quite clear, which may be only a reflection of my arrogance, that
I know why the judge made that order. Once the landlords sought to enforce
their notice to quit, the interesting and rather difficult questions of fact
arose for decision. Was the notice left at the proper address, and was the plan
sufficiently certain? On those matters
it is easy to understand that the parties quite naturally thought that there
were live issues to be decided by a court.
Those issues
would never have reached a court until the landlords sought to enforce their
notice to quit. On the judge’s findings, although the landlords are certainly
entitled to pursue their self-interest or the interests of the trustees, and
they should not be criticised for that, none the less they took a course in the
teeth of the assurance and indeed agreement given and entered into on the
landlords’ behalf by Mr Crichton, the landlords’ agent. It was unconscionable
for the landlords to try to expel the tenant from the upper land when they had
promised by their agent in 1974 that if the tenant agreed to the reconstruction
of the farm the tenant would be left in peace until his retirement.
Mr Pryor
submitted that when the evidence-in-chief of Mr Crichton is looked at, it is
easy to understand the landlords’ deciding to go ahead. It may be that there is
no personal culpability, speaking as a moralist, on the part of the trustees or
any of them. A landlord has responsibilities to his tenant, and he has got to
make it his business to be sure, before he seeks to evict the tenant from all
or part of the land, that he has not, by himself or his agents, promised not to
do it. On the facts found by the judge, it was a promise for good
consideration.
The whole of
this litigation therefore, and the interesting problems that it threw up, plus
the enormous expense in which it has involved everybody, to say nothing of the
anxiety, flowed directly from the failure of the plaintiffs to keep their word.
If they do not know what their agent has promised, the tenant is not to suffer
for that ignorance. On the facts there were ample grounds here for an order
that costs be taxed on a common fund basis, and I would move that that part of
the judge’s order be upheld.
Accordingly I
would dismiss the appeal.
LATEY J said:
I agree with the conclusions on the two issues with which this court has dealt
and with the conclusion as to the order for costs below. I wholly agree also
with the reasoning which my lord has expressed for reaching those conclusions.
I would only add this:
While I agree
with the conclusion on the issue as to the agreement and the quasi-estoppel
without any hesitation or doubt, I have felt difficulty, hesitation and anxiety
about the issue as to service. My mind has wavered in listening to the able
submissions of counsel on both sides both during the argument and during my own
consideration of the matter but, as my lord has said, when one really examines
it very closely, what went wrong in the learned judge’s approach to the
question which was, as he rightly said, whether the plaintiffs had discharged
the burden of proving that the notice had been served by leaving it at the
tenant’s proper address, was the view or impression that he had that the
evidence of Mr Affleck on the one hand and the two Mr Jones’s on the other were
mutually exclusive. That coloured the whole of his approach to the evaluation
of the evidence and the balancing of probabilities.
I agree
entirely with the approach which my lord has enunciated and which leads to the
conclusion that the plaintiffs did discharge the burden of proof.
I agree that
the appeal should be dismissed.
The appeal
was dismissed with costs, to be taxed on a common fund basis.
