Land agents succeed in appeal against decision of Bristow J finding them liable for negligence — Alleged negligence consisted of a failure to prevent, or to warn landowner of the risk of, agreements intended by the owner to be for grazing only giving rise, by virtue of section 2(1) of the Agricultural Holdings Act 1948, to a fully protected agricultural tenancy from year to year — Bristow J held that certain events, such as ploughing up and the growing of arable crops on part of the land subject to the agreements resulted in such a tenancy coming into existence — He also held that the land agents were liable in negligence and awarded damages against them — The Court of Appeal held that a protected agricultural tenancy never came into existence, so that the basis of the claim against the land agents failed — This made it strictly unnecessary to consider whether there was any professional negligence, but the court expressed the view that in any case no such negligence had been established — Judgments of Lawton LJ and Slade LJ contain interesting observations on the agricultural holdings point involved, namely, the application of the proviso to section 2(1) of the 1948 Act — The agreements on the face of them were for grazing only and, in the absence of any evidence that they were shams, there was no reason why the court should look further — Acts such as ploughing or sowing during the continuance of a grazing agreement do not ipso facto bring a protected agricultural tenancy into existence — At the most they may provide some evidence from which an agreement for such a tenancy may be implied — Appeal allowed
This was an
appeal by Rendells, estate and land agents, of Totnes in South Devon, against a
decision of Bristow J on March 12 1982 awarding the plaintiff, Robert Boyce, of
Ashwell Farm, Diptford, Totnes, £37,500 damages and £22,365 interest for
alleged negligence.
R J Walker QC
(instructed by Hexstall, Erskine & Co, agents for Cartwrights, of Bristol)
appeared on behalf of the appellants; J M Price QC and A H Norris (instructed
by Bond, Pearce & Co, of Plymouth) represented the respondent.
Giving
judgment, LAWTON LJ said: This is an appeal by the defendants, Messrs Rendells,
a firm of estate agents and land agents, practising in Totnes in South Devon,
against the judgment of Bristow J given in Exeter on March 12 1982 whereby he
adjudged that the defendants should pay the plaintiff the sum of £37,500 by
way of damages plus £22,365 by way of interest because of the negligence which
the plaintiff alleged the defendants had shown in the handling of a matter on
which he retained them.
The plaintiff
is at the present time about 54 years of age. He read agriculture at Oxford
and, when he was about 24 years of age (that is to say in 1952), he took up
farming and since then he has been interested in farming; but in recent years
he has not given his whole attention to farming as he has had other business
interests. In November 1967 he bought Ashwell Farm, which is in the village of
Halwell, about 5 miles from Totnes. The farm is one of approximately 170 acres.
On the purchase of that farm the defendants acted for him as his land agents
and, in the course of acting for him, there came into their possession an
estate plan which showed the layout of the farm and identified the fields by
their ordnance survey numbers.
In 1974 the
plaintiff was minded to sell the farm. He instructed the defendants to act for
him. In the early spring of 1974 they drew up particulars of the property which
was on offer together with tender forms. The farm was to be sold in two lots
and the particulars of sale set out, as one would expect, the description of
the fields which were on offer by reference to their ordnance survey numbers
and their state at the time of the particulars of sale. Three of the fields,
nos 8443, 7760 and 8956, were described as follows: the first arable ley
part-ploughed, the second arable ploughed and the third arable ley
part-ploughed. The total acreage which was either ploughed or part-ploughed was
about 12. In the course of preparing the particulars of sale someone in the
defendant firm got out the 1967 estate plan and wrote on it in pencil in
relation to the part which was either ploughed or part-ploughed the word
‘ploughed’.
The sale did
not take effect. In 1975 the plaintiff was minded to leave the United Kingdom
and go overseas for the purposes of his business interests. He was also minded
to sell the farm at some time in the foreseeable future, but the market for
farms was not then very good. He had on the farm at that time 91 beasts.
Someone told him that two young men named Colin and Paul Trant, who do not seem
to have owned land of their own but owned a certain number of sheep, were
looking for grazing land. The plaintiff met them, had a discussion with them
about their needs and discovered that what they wanted was grazing rights for
about two years at least. Anything less would not have suited them. The
plaintiff had had no previous experience of grazing contracts. He had some kind
of idea that it was possible under the Agricultural Holdings Act 1948 to enter
into a contract for grazing which did not confer a protected agricultural
tenancy on the other party to it. But he appreciated that he would have to be
very careful about making a grazing agreement. He had a vague idea that one way
of making a grazing agreement which did not have the effect of creating a
protected agricultural tenancy was by ensuring that it was for a period of less
than a year. He felt it was a matter about which he ought to get advice and, if
it was possible for a grazing agreement to be made which met the needs of the
two Trants, then somebody skilled in these matters should draw it up.
As a result he
made an appointment with Mr Pedrick, who was one of the partners in the
defendant firm. He had dealt with Mr Pedrick in 1974. He explained to Mr
Pedrick what he wanted. There is no doubt that he made clear to Mr Pedrick that
he was particularly concerned to ensure that any arrangement he entered into
with the two Trants did not have the effect of creating a protected
agricultural tenancy. Mr Pedrick thought up the following scheme: that there
should be two agreements with the Trants, one with Colin Trant and the other
with Paul Trant. The agreement with Colin Trant should take effect from April 1
1975 and end on March 25 1976. On that date Colin Trant should be under a legal
obligation to take off the land any sheep or other cattle he might have on it.
On April 1 1976 Paul Trant, by the agreement with him, should have the right to
put his cattle on the land for the purpose of grazing and he should be under an
obligation to take his cattle off on March 25 1977.
It was
suggested before Bristow J that this way of arranging the affairs of the
plaintiff and the Trants was nothing more than a device for getting round the
provisions of section 2 of the Agricultural Holdings Act 1948 and was,
therefore, a sham and unenforceable. Bristow J went into the evidence about
this very carefully. He decided that there had been no collateral agreement
between the plaintiff and the Trants over and above the written agreements to
which I shall be referring in a moment and, in the circumstances, the
agreements were genuine ones and were enforceable in law as agreements.
It is now
necessary to say something about their form. Both the agreements were made on
the same day, namely, March 27 1975. Save for the date upon which they came
into operation they were in the same terms. The agreement with Colin Trant
started as follows:
An agreement
entered into this Twenty-Seventh day of March 1975 between Mr R L Boyce of
Ashwell Farm, Diptford, Totnes in the County of Devon, hereinafter referred to
as the Vendor of the one part and Mr C Trant of The Bungalow, Hernaford Lane,
Harbertonford, Totnes in the County of Devon, hereinafter referred to as the
Purchaser. Whereby the Purchaser agrees to purchase from the Vendor the Grass
Keep in Ordnance Survey numbers
and they are
all set out
extending in
all to approximately 126.22 acres, being Part Ashwell Farm, Diptford, on the
following terms and conditions:¾ The Purchaser agrees
and then there
are set out a number of terms including
2. The Sale
to commence from April 1 1975; 3. The Purchaser to unstock the fields not later
than March 25 1976; 4. The Purchaser to cut the weeds and trim the fences:
and so on.
Then there were covenants in favour of the vendor
The Vendor
reserves the right to walk and ride over the land but due regard will be given
to any animals grazing there; The Purchaser may run one or more fields
together.
As I have
already said, the agreement with Paul Trant was in the same terms except that
it had a different starting date. The term ‘grass keep’ is a Devon term which
means grazing. It was accepted by the learned judge that this was intended to
be an agreement for grazing. In my judgment, it is an agreement for grazing and
for nothing else but grazing. The Trants were not given any rights other than
the right to purchase from the plaintiff the grass keep on certain specified
fields.
When those
agreements were made three of the fields, covering 12 acres, specified in the
agreements had got stubble on them. What had happened was that in the previous
three years ending in autumn 1974 the plaintiff had grown maize on them. The
crop had been harvested in 1974 but nothing had been done about ploughing up
the stubble. If Mr Pedrick had looked at the estate plan which he had looked at
in 1974, he would have appreciated that the three fields where there was
stubble had been marked as ‘ploughed’ in pencil on the 1967 estate plan. He did
look at the estate plan for the purposes of getting the ordnance survey numbers
for the fields, but the fact that these three fields had been marked ‘ploughed’
made no impression upon him and he made no reference to them when advising the
plaintiff.
About a week
after the agreements had been signed the Trants ploughed up the 12 acres which
had had stubble on them. They then planted spring barley. They did not ask the
plaintiff’s permission to do this. The plaintiff, as I have already said, had
other business interests and, as it happens, these three fields could not be seen
from the farmhouse of Ashwell Farm. There is nothing to indicate that, at the
time when the ploughing and sowing were done, the plaintiff knew anything about
what the Trants were doing. In the winter of 1975 and 1976 there were cattle on
26 acres of the farm which were on the opposite side of the farm to the 12
acres to which I have already referred. The cattle were kept out on these
fields during the winter, with the almost inevitable result that, at the end of
the winter, the fields comprising these 26 acres were badly poached. It
followed that something had to be done to them in order to get them into good
condition as grazing fields.
There was a
conversation between the plaintiff and the Trants whereby it was suggested to
the plaintiff by the Trants that they should plough up these 26 acres and sow
them with oats. The plaintiff agreed. As Mr Price has pointed out in the course
of argument, the plaintiff got the benefit of having the fields put right by
the ploughing and the Trants got the benefit of being allowed to grow a crop on
the fields. But, of course, before they could grow the crop they had to sow it
and that inevitably led to their incurring expense. Save for that incident in
the spring of 1976 nothing more untoward happened during the continued
operation of the two contracts to which I have already referred.
By the spring
of 1977, when the contracts were reaching their expiry date, the plaintiff was
still anxious to sell the farm and the Trants were anxious to go on getting the
benefit of another contract whereby they could put their sheep on Ashwell Farm.
By this time the plaintiff had got rid of all his 91 beasts. In 1975 and 1976
those beasts had run with the Trants’ sheep and the Trants had been allowed to
occupy the whole of the farm in return for helping with the plaintiff’s
cattle. When the time came to renegotiate another grazing agreement, the
plaintiff was willing to let the Trants have grazing rights over the whole of
his farm except for a small area around the farmhouse.
Once again, the
plaintiff went to the defendant firm and saw Mr Pedrick and, once again, Mr
Pedrick drafted a contract which was a grazing contract. It was made on March
17 1977. This time both Colin and Paul Trant were put into one contract. The
agreement was headed as follows:
‘An agreement
entered into this Seventeenth day of March, 1977, between Mr R L Boyce’ and his
address is given ‘hereinafter referred to as the Vendor of the one part and Mr
C Trant’ and his address is given ‘and Mr P Trant’ and his address is given
‘hereinafter referred to as the Purchasers. Whereby the Purchasers agree to
purchase from the Vendor the grass keep on Ashwell Farm, extending in all to
approximately 155 acres, on the following terms and conditions:’ and then were set out the conditions.
The only
substantial change between this agreement and the earlier agreement was that
there was an undertaking by the Trants to do some liming and there was an
arrangement whereby the plaintiff was to make them an allowance in a specified
proportion for the costs of the liming at the end of the contractual period
covered by this agreement.
At the time
when this agreement was drafted by Mr Pedrick and executed by the plaintiff and
the Trants the situation was this. There were 36 acres on this farm or thereabouts
which, since the winter of 1975 and 1976, had been under plough, and the Trants
almost certainly had been growing crops of some kind on them. But beyond that
there was no other evidence in the case as to what they had been doing. But it
is right that I should approach the subsequent events against the background
that the agreement was made in a situation where a fairly substantial
proportion of the acreage covered by it was arable and not grass at all.
That agreement
duly ran its course and, at the end of it, the plaintiff was willing to
negotiate with the Trants for the purchase by them of part of the farm.
Negotiations started. The Trants employed solicitors and, when the negotiations
were at a fairly advanced stage, the Trants’ solicitors suddenly, no doubt to
the consternation of the plaintiff, suggested that the events which I have
described had the effect in law of creating in favour of the Trants a protected
agricultural tenancy. At first, the plaintiff’s solicitors took up the attitude
that this was nonsense and that they would take proceedings to eject the Trants
from possession of the land. They did, however, decide to take counsel’s
opinion as to what was the position of the Trants, having regard to what had
happened. Counsel advised that the Trants had in law obtained a protected
agricultural tenancy. The plaintiff’s solicitors considered that matter — no
doubt they discussed it with the plaintiff — and, in the end, it was decided to
accept counsel’s opinion. But, if a protected agricultural tenancy had been
created, that had come about following the advice given by Mr Pedrick. That
advice had been sought for the very purpose of avoiding the creation of a
protected agricultural tenancy. After further consideration it was decided to
sue the defendant firm for negligence and to recover from them the inevitable
loss which would flow from having to sell the land subject to a protected
agricultural tenancy.
A statement of
claim was delivered and it is important to see what was alleged in it by way of
particulars of negligence. Para 4 referred to the agreements which had been
made, and the material parts of the particulars of negligence which have been
relied upon in this court were as follows. I read, to start with, from Para
7(2) of the statement of claim:
(2) Mr Pedrick failed to insert in the 1975
Agreement and the 1976 Agreement a provision that the land which was ploughed
should be re-seeded. The insertion of such a clause would have eliminated
(alternatively, weakened) the possibility that the Messrs Trant might obtain
the protection of the Act.
(3) Mr Pedrick failed to warn the Plaintiff
against permitting the Messrs Trant to grow arable crops or to do any further
ploughing. . . .
(4) Mr Pedrick failed to warn the Plaintiff
against permitting any variation or waiver of any of the terms of the 1975
Agreement or the 1976 Agreement without reference back to the Defendants or
seeking advice from Solicitors.
Then, in
relation to the 1977 Agreement, the allegations of negligence read as follows:
(5) Mr Pedrick failed to inspect the land prior
to the drafting of the 1977 Agreement. If he had done so he would have
discovered that about 36 acres had been sown with barley.
(6) Mr Pedrick failed to enquire of the Plaintiff
whether any arable crops had been grown by the Messrs Trant.
There was a
repetition of subparagraph (3), which was the allegation of failing to warn
against permitting arable crops to be grown, and a repetition of subparagraphs
(2) and (4).
The damage
which was alleged to have been caused was the creation of a protected statutory
tenancy. Mr Price accepted at the very outset of his submissions that, if no
protected agricultural tenancy had come into existence, then the plaintiff’s
claim failed. That was clearly right. So my first task is to examine the facts
to see whether a protected agricultural tenancy had come into existence in the
circumstances which I have described.
Section 2(1)
of the Agricultural Holdings Act 1948 is the well-known section which stopped
the gap in the 1923 Agricultural Holdings Act whereby it was possible to avoid
the provisions of that Act by granting agricultural tenancies for periods less
than from year to year. There was, however, in that section of the 1948 Act a
proviso which reads as follows:
2(1) . . . Provided
that this subsection shall not have effect in relation to an agreement for the
letting of land, or the granting of a licence to occupy land, made (whether or
not the agreement expressly so provides) in contemplation of the use of the
land only for grazing or mowing during some specified period of the year . . .
I need not read
any more.
Mr Price
stressed, and rightly stressed, that one of the most important words in that
proviso is the word ‘only’ which follows the words ‘of the use of the land’. That
subsection was construed by this court in Scene Estate Ltd v Amos
[1957] 2 QB 205. The court in that case had to decide what should be considered
when adjudging what was in the contemplation of the parties. The leading
judgment was delivered by Denning LJ (as he then was). He called attention to
the fact that the words ‘in contemplation of the use of the land’ had been put
in for two purposes. One was to deal with the informal contract which often
takes place when a farmer says to another farmer, ‘All right, you can have that
field for another year’ — the sort of situation in which both know it is to be
used for grazing. The second reason was to deal with the case where the
agreement was a complete sham: it was purported to be on its wording a contract
for grazing but, in reality, was for some other purpose altogether. Having
referred to these reasons Denning LJ went on as follows:
It seems to
me that those are the two cases which the legislature had in mind: and I find
it difficult to visualize any other. Apart from those cases, the courts should
be guided by the terms of the agreement, express or implied, and by nothing
else: for in the ordinary way it is from those terms alone that the
contemplation of the parties can be gathered.
Parker LJ (as
he then was) made a comment to the same effect. He said this:
In my
judgment, those words do not require a different construction. They are apt,
and perfectly apt, to enable one to look outside the agreement or the licence
in order to ascertain the terms where the agreement is silent on it. If the
agreement is express on the subject, then I do not think that one is entitled
to look beyond it unless it is for the purpose of showing that the agreement is
a complete sham. In other words, in the case of a genuine agreement which
expressly says that the lease is for grazing or mowing only, and expressly says
that the period is a period of less than a year, there is no right, in my view,
to look beyond the agreement itself. For those reasons I would dismiss this
appeal.
It follows,
therefore, that the first task, in my judgment, the court has to perform is to
construe these three agreements. Were they agreements for the purpose of
grazing only? It is true, as Mr Price
strongly submitted, that they do not say in so many words that they are for the
purpose of grazing only; but the form of words which was used makes it as clear
as anything could that nothing more was contemplated by the agreement than the
sale of grass keep — in other words, of grazing. In those circumstances, unless
there was evidence that the agreements were shams, there is no reason why the
court should look beyond the agreements. It is clear from the evidence that in
1975 the Trants wanted a licence for the purposes of grazing and that the
plaintiff was only willing to grant a licence for grazing. It was by chance
that after the agreements had been made the Trants decided, without the
permission of the plaintiff, to plough up the 12 acres which had been stubble
at the time when the agreements were made. I can see nothing in that incident
which could begin to create a protected agricultural tenancy.
The only
matter of any difficulty is the arrangement which was made during the winter of
1975 and 1976 when the plaintiff gave
argument that that might have amounted to a variation of the original grazing
agreement; but it could only have amounted to a variation to a limited extent,
as Slade LJ pointed out in the course of argument and as, in the end, Mr Price
accepted. The variation could only have related to the 24 acres. It could not
have affected, in any way, the remainder of the land. It follows, therefore,
that, if a protected agricultural tenancy was brought into existence in the winter
of 1975 and 1976, it was only for a very small area of the land.
I turn now to
consider what was the position with regard to the 1977 agreement. It was never
suggested at any stage of this litigation that that agreement was a sham.
Indeed, Bristow LJ in his judgment said that, on the face of it, quite clearly
it came within the proviso. It does. On the face of it, and having regard to
the fact that the express words of the agreement referred to grazing and
conferred no other rights over the land, then it seems to me, on the authority
of Scene Estate Ltd v Amos, we are not entitled to look beyond
the agreement.
Mr Price
submitted that we were. He said that it was so obvious that it did not apply
solely to grazing that the learned judge should have found that it was not an
agreement for grazing only. That inevitably means that the judge should have
admitted evidence that, despite its express terms, it was not for the purposes
of grazing only. There was no evidence that it was the intention of the parties
that it should be for any purpose other than grazing only. The learned judge
seems to have overlooked that a protected agricultural tenancy can come into
existence only as a result of an agreement between the parties. It could not
have come into existence by reason of the agreement which was executed on March
17 1977. The learned judge seems to have thought that, if certain kinds of
acts, such as ploughing, are done during the continuance of a grazing
agreement, then those acts themselves can bring a protected agricultural
tenancy into existence. In my judgment they cannot. The most that can be said
is that some acts may provide evidence from which an agreement for a protected
agricultural tenancy can be implied. The fact that in March 1977 there was an
agreement in writing expressly for grazing makes it exceedingly difficult to
see how events which occurred after March 1977 could have brought a protected
agricultural tenancy into existence.
In those
circumstances, the very basis of the plaintiff’s claim fails. I, for my part,
adjudge that a protected agricultural tenancy never did come into existence
under the 1977 agreement; and if there was a protected agricultural tenancy
relating to the 24 acres which were ploughed up pursuant to the informal
agreement made between the plaintiff and the Trants in the early part of 1976
after it was discovered that the land was badly poached, then that tenancy was
surrendered when the 1977 agreement was made. Mr Price accepted that this was
so.
The judge may
have been influenced by some expert evidence which was given on behalf of the
plaintiff by an experienced land agent called Mr Hurndall-Waldron. He had been
in practice for many years in South Devon. Mr Hurndall-Waldron had said in
evidence that, if he had found out, as he would have found out, so he said, by
walking the land when he was asked to advise upon the drafting of a grazing
agreement, that part of the land had been ploughed, he would have appreciated
that there existed a danger. No doubt, from a land agent’s point of view, the
existence of ploughing does spell danger. But Mr Hurndall-Waldron, so it seems
to me, did not appreciate that a protected agricultural tenancy comes into
existence as the consequence of an agreement. The existence of the danger to
which Mr Hurndall-Waldron paid so much attention may provide difficulties for a
landowner who is seeking to say that the agreement he made was for grazing
only; but it is an evidential difficulty and not a contractual difficulty.
I would like
to add this comment about Mr Hurndall-Waldron’s evidence. Strictly it was not
admissible at all because all he was doing was saying what he, as an
experienced land agent, would have done. That evidence was irrelevant. The most
he would have been entitled to say was that it was accepted practice among land
agents to do this, that or the other when consulted about a grazing contract.
That he did not say. Oliver J called attention to this kind of so-called expert
evidence in Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp
[1979] Ch 384. Oliver J’s comments occur at p 402.
Having regard
to my judgment about the fact that no protected agricultural tenancy was
created I can deal shortly with the allegations of negligence. The way in which
Mr Walker on behalf of the defendants put their case was this. The defendant
firm had the retainer. All they had to do was to comply with the retainer. The
retainer, submitted Mr Walker, was to advise the plaintiff whether the
arrangement which he contemplated with the Trants could be effected without creating
a protected agricultural tenancy. Mr Pedrick did so advise and the judge found
that the advice which he gave had the effect of causing two valid, enforceable
contracts to be made. To that extent he had complied with his retainer.
Secondly, having advised correctly on those contemplated arrangements, he had
then drafted two grazing agreements and both of them, for the reasons I have
indicated, were effective to bring them within the proviso to section 2(1) of
the 1948 Act. It follows, submitted Mr Walker, that it cannot be said that Mr
Pedrick was in any way negligent. Mr Price did not seek to say that that
general approach was unsound, but he added this rider: that, if, in the course
of taking instructions, a professional man like a land agent or a solicitor
learns of facts which reveal to him as a professional man the existence of
obvious risks, then he should do more than merely advise within the strict
limits of his retainer. He should call attention to and advise upon the risks.
I accept that
as a general proposition of law. Applying that addition to the concept of doing
work in accordance with the retainer, Mr Price made this submission: that, when
Mr Pedrick in 1975 was taking the plaintiff’s instructions, he should have
appreciated, when he looked at the 1967 plan to get the ordnance survey field
numbers, that in 1974 part of the land had been ploughed. He should then have
pointed this out to the plaintiff and should have warned him, first, that he
should ensure that the Trants undertook straightaway to reseed any land which
was not pasture; secondly, that he should have warned the plaintiff that it
would be dangerous to allow the Trants at any time in the future to plough any
part of the land which had been licensed to them for grazing.
I find it
difficult to accept that any of those matters were within the duty of the land
agent. He was dealing with an experienced farmer and businessman. He knew the
Trants as experienced young men whom he frequently met in the cattle markets in
South Devon. Both sides wanted an agreement for grazing and nothing else. He
had no reason whatsoever to think that they wanted it for any other purpose
than grazing. There was no obligation, in my judgment, for him to walk the land
before advising upon and drawing an agreement for grazing. I find the
allegations of negligence not proved. For those reasons I would allow this
appeal.
FOX LJ agreed
and did not add anything.
Also agreeing,
SLADE LJ said: I will add something of my own out of deference to the learned
judge from whom we are differing.
The judge
found, and it is not now disputed, that the execution of the agreement of March
17 1977 effected a surrender of any protected tenancy to which either or both
of the Messrs Trant may have previously been entitled in respect of the
relevant land. Therefore, in so far as the plaintiff has suffered any relevant
damage, he can only have suffered it either because he executed the 1977
agreement and this itself created a protected tenancy in respect of the 155
acres comprised in that agreement, or because, by his subsequent conduct, he
permitted a protected tenancy to be created in respect of that land.
At the end of
his address Mr Price, I think, made it plain that his case rests solely on the
proposition that the 1977 agreement itself created a protected tenancy and that
he did not rely on events subsequent to the execution of the 1977 agreement for
the purpose of establishing the existence of such a tenancy. If I may say so,
in view of the flimsiness of the evidence as to the subsequent events, I am not
surprised this concession was made and, indeed, I think that the plaintiff’s
case as pleaded did not rest on such subsequent events. Nevertheless, in
contrast, as I read the relevant passage in the judge’s judgment at p 14 of the
transcript, he looked at the matter rather differently. As I read it, he did
not, for his part, regard the 1977 agreement as having itself created a
protected tenancy, but considered that it had come into existence through
subsequent events. In this context he observed that:
. . . it is
not in the least surprising that everybody in perfect good faith entered into
the new grazing agreement. This is not susceptible to attack under the first
line of attack by Mr Price on the 1975-76 agreement that this is a single
agreement and quite clearly within the proviso. But there remains the problem
that at the time of the new licence part of the land was land which Mr Boyce
had allowed the Trants to use for the purpose of cultivation of a corn crop and
not simply for the purpose of cultivation to put it down again to
and it seems to me that I must infer, thin though the evidence is, that during
the period 1977 to 1979 that land was being used by the Trants for a purpose
other than grazing. They cannot have used it for grazing until it was re-seeded
and it was not re-seeded on such evidence as I have until 1979. If that is
right, and that is the conclusion to which I find myself driven then by allowing
this state of affairs to go on Mr Boyce saddled himself with a fresh protected
tenancy.
The ‘first
line of attack’ by Mr Price on the 1975-1976 agreement as earlier described by
the judge, had been a contention that the true position between the plaintiff
and the Trants was not reflected in the two licence agreements made in 1975, on
the grounds that there had been a further collateral agreement that the Trants
should have the grazing for two whole years. I think that the learned judge was
clearly rejecting any suggestion that the true position between the plaintiff
and the Trants was not reflected in the 1977 agreement, in saying that it was a
genuine agreement and not a sham; and that he was further saying that it ‘quite
clearly’ fell within the proviso to section 2(1) of the 1948 Act, so as to gain
the exemption conferred by that proviso. Though Mr Price has argued that the
1977 agreement did not fall within the proviso, he has not submitted to us that
it was a sham document in the sense that it was deliberately intended to
conceal the true bargain between the parties.
In these
circumstances the decision in Scene Estate Ltd v Amos, to which
my lord, Lawton LJ, has referred, gives the necessary guidance for this court.
This being a genuine agreement, the proper course for the court to adopt in
ascertaining the contemplation of the parties for the purpose of applying the
proviso, must, I think, be to have regard solely to the express or implied
terms of the 1977 agreement itself, unless the evidence shows that other terms
were specifically agreed between the parties which are not reflected in the
written agreement itself.
As to the
wording of the 1977 agreement itself, Mr Price, if I understood him correctly,
attempted to submit, among other things, that its wording and, indeed, that of
the 1975 and 1976 agreements, contemplated user of the land for purposes other
than grazing, because it contained no provision expressly prohibiting user for
such other purposes. With due respect to this submission, in my opinion it is a
hopeless one. All the agreements were expressed as agreements simply for the
sale of grass keep. While, no doubt, it is possible to imply in all of them a
right in the licensees to enter the land for the purpose of collecting the
grass and, I think, also a right to sow grass, in my opinion it is quite
impossible to imply a right to sow any crop other than grass. To my mind, the
wording of the 1977 agreement is to the same effect as if it had expressly
stated that the licensees were to have the right to enter for grazing purposes
only and for no other purpose. So much for the wording of the 1977 agreement.
I turn briefly
to consider whether the evidence shows that other terms were specifically
agreed between the parties which are not reflected in that agreement. I have
been able to find nothing in the evidence to suggest that, at the time when the
1977 agreement was concluded, other relevant matters were agreed between the
parties which were not reflected in the formal agreement itself. Indeed, the
evidence of the plaintiff, Mr Boyce, to my mind suggests quite the contrary. In
the course of his evidence in the court below he was asked in chief about a
meeting with Mr Pedrick which took place when the 1977 agreement was in
contemplation, and the learned judge asked him, and he answered, questions with
reference to that meeting and that time:
MR JUSTICE
BRISTOW: As I understand it, Mr Boyce, what you intended to do and thought you
were doing was letting grazing? A Yes,
my Lord.
Q And not
letting arable farm? A Yes, my Lord.
MR PRICE:
What did you contemplate the Trants would be doing with these 36 acres at the
time when you signed the 1977 agreement?
A That they would be returning them to grass.
I would
emphasise that, in these proceedings, in my opinion the burden must fall on the
plaintiff to establish the existence of a protected tenancy in the Messrs Trant
rather than on the defendants to establish the opposite. In my judgment, the
passage which I have just quoted from Mr Boyce’s evidence is quite inconsistent
with the submission made on his behalf that there was in 1977 some specific
collateral agreement between him and the Messrs Trant, not reflected in the
formal agreement of that year, to the effect that the land could be used for
some purpose other than grazing. And, as I have indicated, in my view there is
no other evidence to support such an agreement. Though Mr Price submitted to
the contrary, in my view it cannot be implied from the mere facts that in 1977
part of the land was under plough and that in one or two of the previous years
part of the land had been used for sowing crops other than grass. It follows
that the plaintiff has not, in my opinion, shown on the evidence that the 1977
agreement operated to confer a protected tenancy in the Messrs Trant.
It thus also
follows, in my opinion, that the plaintiff has failed to surmount the first
hurdle which he must surmount if he is to establish his claim for damages for
professional negligence against the defendant firm, as put forward by his
counsel, because he has not proved any damage. This makes it strictly
unnecessary to consider whether there was in fact any professional negligence
on the part of Mr Pedrick either in 1975 or in 1977. However, whether or not it
is necessary formally to decide the point, my present view is, for the reasons
given by Lawton LJ, that there were no breaches of duty owed by Mr Pedrick to
the plaintiff on either occasion.
For these
reasons and the further reasons given by my Lord, Lawton LJ, I, too, would allow
this appeal.
The appeal
was allowed with costs in the Court of Appeal and below. Leave to appeal to the
House of Lords was refused.
