Agricultural holdings — Headlease — Notice to quit — Tenants failing to serve counternotice — Whether subtenancy determined — Whether landlord and tenants entitled to act collusively to destroy subtenancy — Whether arrangements amounted to surrender
The plaintiffs
held the severed freehold of land subject to a yearly agricultural tenancy
granted by a headlease dated March 1 1970 to the plaintiffs E and his two sons.
The plaintiffs were either related to the tenants or were family trustees
holding land for the benefit of relatives. By an agreement which was in form a
partnership arrangement, but which was conceded on behalf of the plaintiffs at
trial to be a subtenancy, the defendant farmed the land. On April 1 1992 a
notice to quit was served on the remaining tenants holding the headlease (E
having died in 1976) which terminated the headlease; in accordance with a
scheme advised by solicitors, the tenants did not serve any counternotices
claiming the protection of the Agricultural Holdings Act 1986. It was intended
to terminate the defendant’s subtenancy by this means. The plaintiffs claimed
possession of the land against the defendant.
their tenants under a contrived scheme to obtain vacant possession of the land:
landlord and tenant cannot act collusively for the purpose of destroying a
subtenancy. Alternatively the arrangements amounted to a surrender of the
headlease. The notice to quit did not determine the derivative subtenancy of
the defendant. If a tenant chooses not to act as one would expect a tenant to
act to further the landlord’s desire to recover possession and destroy the
subtenancy, the court will be astute to prevent that happening. It will not
interfere if the tenant has genuine grounds for so acting. Had mesne
profits been awarded, they would have been assessed on the basis of a
reasonable rent for the land.
The following
cases are referred to in this report.
Brown v Wilson (1949) 208 LT 144; 93 SJ 640; 156 EG 45
Harrison v Wing (1988) 56 P&CR 358; [1988] 2 EGLR 4; [1988] 29 EG
101
Magdalen
College, Oxford v Heritage [1974] 1 WLR 441;
[1974] 1 All ER 1065; (1974) 27 P&CR 169; [1974] EGD 1; 230 EG 219, CA
Mellor v Watkins (1874) LR 9 QB 400
Pennell v Payne [1995] QB 192; [1995] 2 WLR 261; [1995] 2 All ER 592,
CA
Sparkes
v Smart [1990] 2 EGLR 245
This was an
application by the plaintiffs, Robert Asheton Barrett, Philip Adrian Scrope and
Mary Isobel Scott, for possession of land against the defendant Robert Cecil
Morgan.
John McGhee
(instructed by Burges Salmon, of Bristol) appeared for the plaintiffs; Shane
Dougall (instructed by Smith Roddam, of Bishop Auckland) appeared for the
defendant.
Giving
judgment, Mr PW Smith QC said: By this action the
plaintiffs claim possession and mesne profits in respect of the
agricultural land known as Mordon North Farm, County Durham, and Mordon West
Farm, County Durham (‘the farm’), from the defendant.
The first and
second plaintiffs’ claim relates to 146.17 acres of the Mordon North land and
184.84 acres of the Mordon West land (total 331.01 acres). The third
plaintiff’s claim relates to 23.58 acres at Mordon. The defendant has farmed
the land since 1980.
On the first
day of the trial the defendant applied for leave to amend his defence and to
serve a counterclaim. I granted leave to amend the defence and counterclaim in
a form to be produced (as a result of counsel for the defendant acknowledging
that the claim based upon clause 36 of a headlease (‘the headlease’) dated
March 1 1970 and made between the then fourth Earl of Eldon, the said Earl of
Eldon, Simon Peter Scott and John Joseph Nicholas Scott (now the Fifth Earl)
was misconceived). The counterclaim was then comprised by the parties and I made
an order staying the counterclaim in Tomlin form on the first day of the
trial. I also granted the plaintiffs leave to adduce the supplemental witness
statement of the second plaintiff (Mr Scrope) dated September 13 1996.
There was a
substantial dispute over the value of the mesne profits claim if it was
established by the plaintiffs. In the event the experts were able to agree the mesne
profits as being £131,449 if calculated on the basis of the net profit made by
the defendant in farming the land and £92,316 if the same is assessed on the
basis of a reasonable rent for the same. Both sums are subject to deduction of
the sums Mr Morgan has paid on account (he having tendered the sums he was
previously paying and the same having been accepted as on account mesne
profits). In addition there will be a claim for interest, but if that arises
the sum can be calculated and agreed.
Background
By the
headlease the then fourth Earl let 938.14 acres of land (including the farm),
as I have said to himself and his two sons. Although the headlease is stated to
be an agreement, it was actually executed as a deed. A potential limitation
point on the counterclaim has been avoided by the compromise. The letting was
for a tenancy from year to year from March 1 1970 at an actual rent of £3,350.
Clause 3 provides that the headlease could be terminated by giving not less
than one year’s notice expiring on May 13 in any year.
All parties
are agreed that the headlease was protected under the (then) Agricultural
Holdings Act 1948. The land comprised in the headlease was actually farmed by
the tenants.
Devolution
of freehold
The fourth
Earl died on October 20 1976 and probate of his will was granted to his two sons
out of the Principal Probate Registry on April 1 1977. John Joseph Nicholas
became the fifth Earl.
On April 3
1984 3.2 acres of the Mordon West land was vested in the first and second
plaintiffs as trustees for the SP Scott Children (being the children of Mr
Scott, the other son of the fourth Earl). On
from the executors of the will of the fourth Earl. On July 30 1984 23.58 acres
was transferred to the third plaintiff (the wife of Mr Scott) by Mr Scott
(being the land claimed by her in these proceedings).
On July 23
1986 146.17 acres of the Mordon North land and 181.64 of the Mordon West land
were transferred by Mr Scott to the first and second plaintiffs to hold the
same upon trust for Mr Scott’s children. The latter land, together with the
earlier 3.2 acres total 184.84 acres, the total of the land secondly claimed by
the first and second plaintiffs. That led to a discrepancy in the notices to
quit which were served, to which I make reference below. However, such
discrepancy did not, in my view, affect the validity of the notices.
Thus by the
time of the notices to quit the freehold reversion of the farm was severed
between different freeholders. It is nevertheless accepted that by virtue of
section 140 of the Law of Property Act 1925 each severed freehold reversioner
can serve a notice to quit in respect of the severed part. Alternatively it is
accepted that the freeholders can combine together to serve one notice to quit.
Occupation
of the farm
The tenants
under the headlease occupied the farm as part of the land comprised in the
headlease from 1970. By 1980 the farm had become run down. I was told by Mr
Scrope (and I accept his evidence in that regard) that the farm had become
rundown. It was also the intention of Mr Scott in the medium term to sell the
farm to raise capital for his children as and when they needed it. Mr Scrope
acting for the Eldon family was anxious to secure an income from the farm in
the interim, but equally he wished to ensure that any such income was derived
from a relationship that did not give rise to an agricultural holding with
security of tenure under what became the Agricultural Holdings Act 1986.
Both Lord
Eldon and Mr Scott gave evidence to the effect that the desire to recover the
land for sale purposes for the children was communicated to Mr Morgan and he
understood and accepted it. They both acknowledged in cross-examination that
any such communication must have been via Mr Scrope; they not having discussed
the matter with Mr Morgan directly. Mr Scrope in his evidence was of the view
that he first communicated this view in the mid-1980s, that is to say some
years after Mr Morgan started farming the farm. He said he informed Mr Morgan
of the desire and he made no comment. I doubt whether there was a clear
communication of such a desire before that. It must be borne in mind that the
children did not become beneficially interested in the freehold until July 23
1986. If there was any communication before then it would only have been in the
most general of terms and would express a need for Mr Scott to sell land
for his children.
Mr Morgan’s
evidence was unchallenged in that his witness statement only was put in. It
does not deal with the agreement (which was called ‘the gentleman’s agreement’)
in the trial. On instruction Mr Shane Dougall for Mr Morgan informed me that he
did not recall any original discussion, but conceded it might have occurred
later. His understanding was that he would occupy until 1987.
I find that
the communication was made to Mr Morgan in the 1980s after he went into
occupation and that he accepted it in the sense that he understood that was the
wish of the freeholders. I do not find anything else and in particular I attach
no significance to the gentleman’s agreement. Like all such arrangements, it
was not binding on Mr Morgan and there was nothing to stop him asserting his
statutory rights, if any. It has been said that a gentleman’s agreement is one
made between persons who are not gentlemen. Certainly in this case the Eldon
family could not have expected anything other than the promise being
non-binding and dependent on Mr Morgan agreeing to give up whatever rights he
had.
In this
context I accept Mr Scrope’s evidence that Mr Morgan was identified as a
potential farmer of the farm lease, he was known to the Eldon family (being a
tenant of another farm for them), was considered to be likely to accede to a
gentleman’s agreement as envisaged, had other farms and would not therefore be
dependent on the farm for his existence.
Documentation
Mr Scrope
would of course be failing in his duty to the Eldon family if he had allowed Mr
Morgan into occupation under a gentleman’s agreement to recover possession. He
was an experienced land agent and would be well aware of the pitfalls presented
by the Agricultural Holdings regime. The Acts provided tenants with a
substantial security of tenure and severely restricted the ability of
freeholders to recover possession. In particular if Mr Morgan had a tenancy
protected under the 1986 Act, the gentleman’s agreement could not be used as a
basis for recovering possession. That perceived imbalance has been redressed by
the Farm Business Tenancy regime created by the Agricultural Tenancies Act
1995. It does not apply to the instant case, however. Mr Scrope, therefore, to
avoid giving Mr Morgan a protected tenancy under the Agricultural Holdings
regime proposed a partnership arrangement with Mr Simon Scott and Lord Eldon.
He sent a proposal to Mr Morgan under cover of a letter dated October 16 1980.
In the letter he suggests a figure of ‘rent’ at £1,000 per month. He explained
in his evidence that the inverted commas were used because it was not rent, but
a payment under the limited partnership.
The arranged
terms would if implemented have constituted a partnership of which Mr Morgan
was a partner and he would have had no separate tenancy. There is nothing wrong
in drawing up arrangements with the intention of avoiding the statutory
protection regime provided they are genuine and bona fide arrangements and not
mere shams to avoid such regimes. Mr Morgan accepted the terms on December 5
1980 (having gone into occupation in November). On June 17 1983 a limited
partnership agreement was drawn up and duly registered under the Limited
Partnerships Act 1907. The purpose of the limited nature of the partnership is
of course to avoid the potential difficulty of Mr Morgan otherwise being able
to incur liabilities in the partnership, same for which Lord Eldon and Mr Scott
would be jointly and severally liable.
However, even
by 1983 it was all a pretence. None of the partnership obligations (save the
capital contributions) had been implemented. Demands for money were issued,
variously described as ‘rent’, ‘amount due’, ‘payment due’. Mr Morgan never
provided accounts. Instead of seeking to enforce the partnership obligations,
Lord Eldon and Mr Scott accepted that he became a subtenant of theirs. The
illusion was further revived in 1993 when Mr Scrope purported to serve a notice
of dissolution of the partnership. In fact the document had been prepared I
find in 1992 and its service was, in my view, held back deliberately to be
served as late as possible on Mr Morgan.
Mr John McGhee
properly for the plaintiffs accepted that Mr Morgan was a subtenant of the
farm. That too was Mr Dougall’s contention. In fact, that eventuality the
agreement raised by Mr Dougall that Lord Eldon and Mr Scott were in breach of
duties owed by them to Mr Morgan as co-partners was no longer sustainable and
he abandoned it.
Need for
possession
By 1991 the
position had arisen that Mr Scott’s children were desirous of realising the
capital of the farm if it all possible. They were living in London in a damp
houseboat and wished to return to terra firma. No reason was given as to why
they could not like a large number of people simply move into rented
accommodation. By this time I find Mr Morgan had been aware of the need and
accepted that might be why possession might be needed.
Negotiations
took place for a possible sale to Mr Morgan. However, he was advised quite
properly that he was a tenant and was only prepared to offer to buy on the
basis of the freehold being valued on a non-vacant possession basis (probably
according to Mr Scrope, leading to a reduction by 30%). In effect in 1991 he
maintained his claim to a subtenancy which claim was accepted by the
freeholders.
Subsequent
events
Faced with
this Mr Scrope sought advice probably from Burges Salmon. The position was
considered I find exclusively with Mr Scott alone. This at first sight is
curious. Mr Scott is after all one of the mesne tenants (with Lord Eldon
his brother). Mr Scrope I find took no instructions from the children, nor from
Mrs Scott, the other freeholder. Mr Scott in his evidence tellingly said he was
glad the children had taken his advice.
The result of
the advice was that a decision was made to serve notices to quit terminating
the headlease. It is necessary to explain the thinking behind this arrangement.
A tenant under the Agricultural Holdings regime is in a strong position. A
notice to quit of at least 12 months has to be served. If the notice does not
specify one of the statutory grounds for termination the tenant can serve a
counternotice within one month claiming the benefit of section 26 of the 1986
Act. If he does then the Agricultural Land Tribunal only can consent to the
notice to quit taking effect. Alternatively, if grounds are specified the
tenant can serve a counternotice challenging the grounds if he does so within
one month. If he fails to serve the counternotice, the notice to quit operates
(unless fraudulent) even if there was no actual ground: see Magdalen
College, Oxford v Heritage [1974] 1 WLR 441. Thus a tenant served
with a notice to quit if he wishes to remain a tenant would invariably serve a
counternotice. Anyone advising a tenant would so advise (a point Mr Scrope and
Lord Eldon conceded).
Subtenants are
in a much weaker position. Unlike the regime under the Rent Act 1977 and Part
II of the Landlord and Tenant Act 1954, they have no security of tenure. They
hold limited rights only if the mesne landlord serves a notice to quit.
The position is summarised in Woodfall Landlord and Tenant para 21.158.
If a headlease is determined either by notice given by the freeholder to the
superior tenant or vice versa or by forfeiture, the derivative sublease also
determines: see Pennell v Payne [1995] QB 192, CA. Conversely, if
a surrender occurs the subtenancy remains and becomes binding on the freeholder
under sections 139 and 150 of the Law of Property Act 1925. Thus if a notice to
quit was served terminating the headlease and it became effective, Mr Morgan’s
subtenancy would also come to end and his right to possession would determine.
This is the scheme that Mr Scrope and Mr Scott embarked upon in my view.
The
notices
On April 1
1992 Mr Scrope sent a letter to Mr Scott and Lord Eldon at Mr Scott’s home
address. It refers to an enclosed notice to quit. I find as a fact two
notices were included, that the letter and the notices were sent by recorded
delivery and were received by Mr Scott at his house. I also find as a fact that
service of the notices was brought to the attention of Lord Eldon.
The notice to
quit in relation to the freehold land held by the first and second plaintiffs
refers to different figures (184.84 acres in the title and 183.30 in the body
of the notice). Mr Scrope said this was a clerical error (he was not sure now
whose error). In my view, and I so find neither tenant (Mr Scott and Lord
Eldon) was misled about it. They knew (because it was the scheme that Mr Scott
and Mr Scrope had created) that the notices were intended to operate on all the
land owned by the plaintiffs, included in the headlease and occupied by Mr
Morgan under his subtenancy. Further the acreage is prefaced by the word
‘approximately’ to allow a deviation from the exact acreage. I find therefore
that the notice was validly served and received. I also find that it operated
to terminate the headlease in relation to the farm.
The next part
of the scheme was not to serve a counternotice. Otherwise vacant
possession could not be obtained. No counternotice was served. The only reason
given was that Mr Scott (not surprisingly) and Lord Eldon (hardly less
surprisingly) were anxious to assist the freeholders in the desire to recover
possession from Mr Morgan by destroying his subtenancy. They could not do so
because as against them he would be able to assert his rights. It is quite
clear that Lord Eldon was willing to fall into any scheme which would give
vacant possession to his nephews and nieces. He was not really consulted, he
was informed of the proposed notice (and according to Mr Scrope took ‘it on the
chin’). Lord Eldon said he was surprised by that comment; he was concerned
about his nephews and nieces’ plight and was anxious they could get somewhere
decent to live.
Mr Scrope
barely consulted Mrs Scott, his client. All discussions were between him and Mr
Scott. Further there appears to be little consideration (whether at the
breakfast table or otherwise) between Mr Scott and his wife over the fact that
she had served a notice to quit on him. Mr Scott and Lord Eldon were quite
frank about this. Their stance is that the decision not to challenge the notice
was to ensure the landlords recovered possession. Mr Scrope was equally frank
in conceding that if there was no connection between the landlord and the
tenant he would (if advising the tenant only) advise the service of a
counternotice. Similarly Lord Eldon and Mr Simon Scott both acknowledged that
the desire not to challenge the notice was motivated solely to achieve a
benefit for the landlords and I so find that was the position.
Equally, it
was important that Mr Morgan did not find out about the notice until the one
month had expired. I find as a fact that the existence of the notices was
deliberately concealed from Mr Morgan as long as possible. Indeed he only
became aware of them in March 1993 when he was given copies by Mr Scrope when
he served the notice ‘dissolving’ the partnership. This was despite the fact
that he had visited Mr Morgan three to four times. He chose not to mention the
notices. For Mr Scrope to say to tell Mr Morgan about the notice would be
‘gratuitous’ is specious in my view. It is quite clear by that time both sides
were insisting on their ‘strict legal rights’.
Challenge
to notices to quit
Mr Dougall who
appears for Mr Morgan contends that there was collusion between the tenants and
the landlords to give notices to quit and not challenge them for the purpose of
destroying the subtenancy to enable the landlords to obtain vacant possession.
Mr McGhee attempted with great elegance to suggest that the tenants were merely
making a decision not to challenge the landlords’ unilateral decision to give
notice. The submission was elegantly put with great force but it is with
respect to Mr McGhee unreal.
The following
facts are relevant:
(1) The
landlords wanted vacant possession and Mr Morgan was the only obstacle.
(2) The tenants wanted to assist in that aim.
(3) As tenants
there were no grounds for not giving a counternotice, but it was never
contemplated one would be served.
(4) The
tenants never considered their position qua tenants (Lord Eldon especially
so).
(5) The notice
to quit would not have been served (because it would have achieved no purpose
otherwise) had it not been known by the landlords that no counternotice would
be served.
(6) Mr Scrope
advised the landlords and the tenants. He was taking his instructions from Mr
Scott, a tenant who was acting in a way no tenant would and in a way Mr Scrope
would not advise a tenant so to act.
(7) The
purpose of the notice was to destroy the subtenancy.
(8) Part of
the purpose required the suppression of the service of the notice and that was
done.
(9) Mr Scott
had advised the children to serve the notice to quit.
In my view, it
cannot against that factual background be realistic to suggest the tenants were
falling in line with a unilateral decision of the landlords.
Authorities
It is
necessary to analyse the effect of various authorities: in Mellor v Watkins
(1874) LR 9 QB 400 the Court of Appeal decided that a surrender of a headlease
did not determine a subtenancy. The plaintiffs’ counsel at pp403–404 conceded
that ‘no voluntary act of surrendering or otherwise putting an end to
his tenancy can affect the interest of his other tenants’. Cockburn CJ decided
the case on the effect of a surrender. Blackburn J decided it on the basis that
no voluntary act of the tenant could put on to the sublease. Lush J merely
concurred with the result. There has apparently been no authority for
the concession to be read in the Mellor case that a head tenant could
not determine a subtenancy by giving notice to terminate his own tenancy; see Pennell
v Payne [1995] QB 192 at p199, per Simon Brown LJ.
In Brown
v Wilson (1949) 208 LT 144; 93 SJ 640 and 156 EG 45, Hilbery J decided
there was a broad underlying principle that ‘will not allow a man by an act
done between him and another … to destroy the right he has granted to a Third
Party’.
In Pennell
v Payne the Court of Appeal considered these (and other cases) in the
context of the head tenant giving notice to the freeholder to determine his
lease. The Court of Appeal concluded he could and in so doing overruled Brown
v Wilson. Counsel for the tenant argued successfully that the rule was
that if the headlease was determined other than by surrender or merger, the
derivative subleases were destroyed. Counsel for the landlord argued
unsuccessfully in favour of the wider principle derived from Mellor v Watkins
and Brown v Wilson. The Court of Appeal rejected that and
thus applied the general principle, ie there was nothing to stop a head tenant
destroying a subtenancy by giving notice to his superior landlord to determine
his lease. If the decision had been confined to that I would have
unhesitatingly found in favour of the plaintiffs on the basis that the
headlease and sublease had been determined by the unchallenged notice to quit.
However, in
the course of his judgment Simon Brown LJ said (p201c):
[Counsel for
the landlord] envisages landlords letting to compliant tenants who would then
underlet and then when the landlord desired it, serve an upwards notice to quit
with a view to destroying the only true interest in the underlease. I find this
wholly unpersuasive. That there is ample scope for collusion whatever the
outcome of this appeal (emphasis supplied) is plain from existing
authorities [such as Sparkes v Smart [1990] 2 EGLR 245] …
[Further the fact that the tenant might incur liability on his covenant for
quiet enjoyment to his subtenant] would make the possibility of the collusion
difficult indeed — more difficult certainly than for example were he to seek
the same collusive end by failing to serve an appropriate notice on his
landlord.
Accordingly,
in my view, the general principle of the effect of how the headlease is
terminated may be affected if there is collusion between the head landlord and
the head tenant. Such collusion can be either by the head tenant serving
a notice or failing to serve a notice.
The case of Sparkes
v Smart [1990] 2 EGLR 245, CA is both relevant and instructive. An aged
agricultural tenant had permitted his youngest son, the defendant, to help with
his farm. Over the years it developed into a subtenancy (in breach of the
headlease, but acquiesced in by the freeholders). There was a prospect of the
freehold being acquired. All the family except an uncle wanted to destroy the
subtenancy. A son-in-law bought the freehold for £92,000 which reflected a
vacant possession price. He served a notice to quit on the father-in-law
specifying an irremediable breach of covenant, namely the subletting to the
son.
The tenant
deliberately chose not to serve a counternotice. The service of the notice was
concealed from the son. The reason was to destroy the tenants’ headlease and
the son’s derivative sublease. The judge at first instance found the actions of
the tenant were collusive with the freeholder with a view to putting an end to
the sublease to award the freeholder with vacant possession. Warnings about Mellor
v Watkins from the solicitors and counsel were ignored. The effect was
held to be the same as the voluntary surrender of a headlease. An appeal was
dismissed by the Court of Appeal.
Purchas LJ
(p250F) upheld the judge’s decision based on the freeholder and the head tenant
acting collusively in the service of a notice to quit and not challenging it to
destroy the subtenancy rights. Ralph Gibson LJ did likewise (p251M).
Stuart-Smith LJ did likewise (p253J) on the basis that the scheme was to
provide the freeholder with vacant possession.
Application
of law
In my view,
the facts of the present case as set out above show that the landlords acted
collusively with the tenants. The purpose was a contrived scheme to deliver up
vacant possession for the children. It is stronger than the case of Sparkes
v Smart which was expressly approved of in Pennell as an
exception to the actual principles of the consequences of a notice to quit
determining the derivative subleases.
I was much
pressed by Mr McGhee that there must be a surrender finding only to deprive the
notices of effect. I do not accept that is correct. It seems to me that the
principle is that the landlord and tenant cannot act collusively for the
purpose (emphasis supplied) of destroying the subtenancy. If they do so the
effect will be that the sublease will survive, ie it will be as if it
was a surrender of the headlease. That is, in my view, simply an analogous
description of the result of the finding of collusion. However, the court acts
in the case of collusion to protect the subtenant from such collusion.
Harrison v Wing [1988] 2 EGLR 4 was relied upon by Mr McGhee but I
find it does not assist. First it is clear that the judgments are founded on
the so called wider principle in Mellor v Watkins and Brown
v Wilson which was rejected by the later decision in Pennell v Payne.
Second, there was no argument of collusive conduct. The tenant had an interest
in two capacities, that of co-executor in respect of the freehold and tenant.
He was entitled to give paramountcy to his duty as executor by not challenging
the notice. That there is no analysis of what is meant by collusion. In my
view, the clearer decision of Sparkes is more pertinent and I can see no
basis for departing from it.
If I am wrong
in my understanding of the principle I would say that the arrangements are, in
my view, the equivalent to a surrender (Mellor) or tantamount to one (Harrison
v Wing at p5C) in reality so that Mr Morgan’s subtenancy still subsists.
Conclusion
The
plaintiffs’ claim, in my opinion, fails and should be dismissed. I do not accept
Mr McGhee’s contention that this puts tenants in an impossible position. It
means the court should look to the reality. If a tenant chooses not to act as
one would expect a tenant to act (as happened here) to further the landlord’s
desire to recover possession and destroy the subtenancy, the court will be
astute to prevent that happening. It will not interfere if the tenant has
genuine independent grounds for so acting.
I accept the
distinction can be fine. Thus if Mr Simon Scott had remained executor he could
have served a notice and not challenged it, thus presenting a position
identical to that of Harrison v Wing. That, however, is not the
case. It may be that Harrison v Wing will have to be reconsidered
in the light of Pennell v Payne or that it should be confined to
its special fact. It does not, in my view, have any relevance for the reasons I
have given.
If contrary to
my view the plaintiffs are entitled to possession, I would have awarded mesne
profits at the lower level. While the claim is restitutionary to take all the
profits rather than a reasonable rent, would overcompensate them for the
trespass.
The decision
will I have no doubt cause the plaintiffs distress. The Eldon family, however,
seem to have placed too much reliance on a gentleman’s agreement and then
compounded it by failing to operate an agreement which would have ensured
possession, in my view, because Mr Morgan would have obtained no tenancy.
However, if devices are to be resorted to they must be genuinely acted on. That
did not happen here.
I will hear
representations as to costs.
Judgment for
the defendant.
