Landlord and Tenant Act 1954, Part II — Tenants’ application for a new tenancy under section 24 — Procedure — Order 97, rule 6 — Originating summons must be served within two months of date of issue in these cases unless the court extends the time under Order 6, rule 8 — Court’s discretion to extend time to be used only in exceptional cases — In present case, by a slip the ordinary form of originating summons, which contained a note that it should be served within 12 months, was used — Judge held that there were no circumstances present which justified the grant of an extension — Held that there were no grounds for interfering with the exercise of the judge’s discretion — Judge had not applied any wrong principle, had not taken into account matters which he should not have taken into account and had not failed to take into account matters which he should have taken into account — Appeals from judge’s order dismissed
These were
appeals from orders of Judge Fitzhugh, sitting as a High Court judge of the
Chancery Division, at Manchester. The appeals were against the judge’s refusal
to exercise his discretion to extend the time for service of two originating
summonses taken out by the appellants (plaintiffs) in proceedings for new
tenancies. The summonses should have been served within two months of issue,
but owing to the use of the wrong form of summons this time-limit escaped the
attention of the appellants’ advisers.
Benjamin Levy
(instructed by Alexander, Tatham & Co, of Manchester) appeared on behalf of
the appellants; C J Lockhart-Mummery (instructed by Paisner & Co)
represented the respondents.
Giving
judgment, WALLER LJ said: These are two appeals from a decision of Judge
Fitzhugh, sitting as a High Court judge of the Chancery Division, at
Manchester. The two cases relate to two sets of premises, 58-72 Church Street,
Liverpool, and a basement forming part of 62 Church Street, Liverpool. The
plaintiffs are tenants of those premises and the defendants are landlords. Each
lease was due to terminate on two dates in January 1981. On May 2 1980 the
landlord served notice under section 25 of the Landlord and Tenant Act 1954 in
relation to 58-72 Church Street, and on May 21 in relation to 62 Church Street.
In his notice, the landlord said that he would not oppose an application for a
new lease of 58-72 Church Street, but in relation to 62 the notice stated that
the landlord would oppose the grant of a new lease on the ground that he
required and intended to occupy the premises himself.
In May the
plaintiffs, the appellants before us, served counternotices to each notice, and
on August 29 there were taken out on behalf of the tenants two originating
summonses. On September 2 the solicitors for the appellants wrote to the landlords’
solicitors, informing them that these originating summonses had been issued.
By Order 97,
rule 6 and Order 6, rule 8, which had been amended in the previous year, these
originating summonses had to be served within two months. Unfortunately the form
used was an ordinary originating summons, which had on it a note saying that it
had to be served within 12 months, and the relevant rules which I have
mentioned had escaped the attention of the appellants’ solicitors. There was no
service within two months, and after three months the defendants’ solicitors
wrote saying that time for service had passed and that the landlords would
require possession of both premises. The tenants applied for an extension of
time for service and the judge, to whom the applications were referred by the
registrar, came to the conclusion that there were no circumstances which would
justify his exercising his discretion in favour of such an extension.
I have already
referred to Order 97, rule 6, but I should also just quote part of a practice
direction which was given on January 30 1976, which, having discussed in
paragraphs 1 and 2 the possibility of time being wasted when negotiations were
going on, said this in paragraph 3:
It is of the
greatest importance that the landlord should be informed promptly of the issue
of the originating summons, which must be served strictly within [two] calendar
months from the date of its issue. It is not to be assumed that the time will
necessarily be extended if this requirement is not complied with.
There is no
dispute before us that the court has power, in exceptional cases, to extend the
time, and in this case it has been argued on behalf of the appellants that
there were such exceptional circumstances; that the judge did not give proper
weight to them and that he had applied certain principles wrongly. Mr Levy
submitted that the learned judge wrongly applied the principle in the line of
cases
referred to the case of Jones v Jones [1970] 2 QB 576, and by Mr
Lockhart-Mummery to Heaven v Road and Rail Wagons Ltd [1965] 2 QB
355, a decision of Megaw J, as he then was.
Mr Levy has
contended that the principles applying to personal injury claims do not apply
to a claim for a new lease under the 1954 Act, which gave rights to tenants,
and he has submitted that the judge applied the principles of the personal
injury cases to this case, without recognising the different circumstances.
Secondly, Mr Levy submitted that the judge was in error in attaching importance
to the fact that the tenants would have a remedy against their solicitors; and
thirdly that the judge was in error in not paying sufficient attention to the
nature of the fault which caused the delay, namely, a serious, although
understandable, slip by somebody in the office of the solicitors acting on
behalf of the tenants.
In my opinion,
the principles applying to extensions of time are similar, whether it is a writ
which requires renewal after 12 months, or an originating summons with the same
time-limit, or an originating summons under the Landlord and Tenant Act 1954,
with a time-limit of two months. There will, of course, be differences of
detail, because of the different factual background; but whether it be a writ
or an originating summons, the circumstances must be exceptional, or ‘special’
as is said in one of the cases, to justify an extension. The personal injury
authorities show examples of circumstances which might be exceptional, and in
relation to the Landlord and Tenant Act, the case of Lewis v Wolking
Properties Ltd [1978] 1 All ER 427 is an indication of the kind of
exceptional circumstances which might apply in a landlord and tenant case.
The learned
judge, at the end of his judgment, mentioned the fact that the tenant would
have a remedy against his solicitor; but it is difficult to say whether or not
this was part of his reasoning, or whether it was simply an added comment after
he had made the decision. In any event, in a case of this sort, even if it were
part of his reasoning, where relative hardship is an important matter to
consider, it may well be a factor to be taken into account that there is such a
remedy; and as regards the nature of the fault of which Mr Levy made complaint,
it is not possible to say that the judge did not take that into account.
Although I
have considerable sympathy with the plaintiffs’ claim, and the appellants’
appeal to this court, I have been unable to find in any of the complaints which
I have mentioned, any good reason for exercising discretion differently from
the way in which the learned judge exercised his discretion. But I have
considered whether or not it would be possible to interfere with the judge’s
discretion even if I had felt able to take a different view. To interfere, it
would be necessary to show that the judge was wrong in law; that is to say,
that he applied wrong principles, or that he took into account matters which he
should not have taken into account, or failed to take into account facts which
he should have taken into account. Are there any circumstances which he had not
taken into account which could properly be said to be exceptional, so as to
justify interference? In my judgment
there are not.
I have
therefore come to the conclusion that there are no grounds for interfering with
the learned judge’s discretion, and I would dismiss these appeals.
OLIVER and FOX
LJJ agreed.
The appeal
was dismissed with costs.
