Leasehold enfranchisement — Leasehold Reform, Housing and Urban Development Act 1993 — Collective enfranchisement — Notices — Tenants’ original notice not complying with section 13(3) — Whether tenants prohibited by section 13(8) and (9) from serving further notice with 12 months of original notice — Whether estopped from challenging efficacy of own notice
In December 2005, the qualifying tenants of a block of flats served a notice on the defendant landlord, under the collective enfranchisement provisions of the Leasehold Reform, Housing and Urban Development Act 1993, seeking to exercise their right to acquire the freehold through the claimant company. By its counternotice under section 21, the defendant asserted that the tenants’ notice was invalid because it failed to comply with the requirements of section 13(3). The tenants accepted that contention and, in April 2006, purported to serve a fresh section 13 notice. The defendant served a further counternotice, in which it asserted that the second notice was also invalid since, by virtue of section 13(8) and (9) of the Act, the tenants were prohibited from serving any further notice within 12 months of the withdrawal or the deemed withdrawal of a previous notice in respect of the same premises.
In proceedings brought by the claimant for declaratory relief, the defendant submitted that: (i) the April 2005 notice, although ineffective under section 13(3), was still to be regarded as a section 13 notice such that a withdrawal of it under section 28, or a deemed withdrawal under section 29(1), would trigger the prohibition on further notices under section 13(8) and (9); and (ii) the claimant and the tenants were estopped from challenging the efficacy of their own notice. Finding in favour of the claimant in the county court, HH Judge Collins held that the December 2005 notice was invalid and was not saved either by para 15 of Schedule 3 to the Act, regarding inaccuracies and misdescriptions, or by application of the “reasonable recipient” test in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 1 EGLR 57; [1997] 24 EG 122; [1997] 25 EG 138. The defendant appealed.
Held: The appeal was dismissed.
(1) The notice of December 2005 was invalidated by its failure to comply with section 13(3). That was the normal effect of a failure to comply with a mandatory contractual or statutory provision that required a party to give a notice in a particular form in order to achieve a particular result identified in that contract or statute, unless the notice were saved by a provision such as para 13 of Schedule 3 to the 1993 Act or by the Mannai test. Nothing in the scheme of Chapter I of Part I reversed the normal position or required that a purported notice under section 13, which is ineffective for failure to comply with section 13(3), should nevertheless have some statutory consequences. (2) The tenants had been entitled to serve a fresh, valid section 13 notice in April 2006 once the invalidity of their previous notice had been brought to their attention. The prohibition on further notices in section 13(9) did not apply since there had been no withdrawal or deemed withdrawal of the first notice; that notice was simply ineffective and of no force and did not need to be withdrawn. (3) The tenants were not estopped from asserting the invalidity of the December 2005 notice. Even if the notice contained a representation that it was a valid section 13 notice, the defendant had not relied upon that representation, but had done the opposite by contending, in its counternotice, that the notice was invalid. Moreover, even assuming that the defendant would have become liable for a fee for its solicitor’s work in considering the December 2005 notice, any element of detriment involved was not sufficiently substantial to make it unjust or inequitable for the tenants to allege the non-compliance of the notice with section 13(3).
The following cases are referred to in this report.
Banner Industrial & Commercial Properties Ltd v Clark Paterson Ltd [1990] 2 EGLR 139; [1990] 47 EG 64
Bremer Handels GmbH v Vanden-Avenne Izegem PVBA [1978] 2 Lloyd’s Rep 109, HL
Burman v Mount Cook Land Ltd [2001] EWCA Civ 1712; [2002] Ch 256; [2002] 2 WLR 1172; [2002] 1 All ER 144; [2002] 1 EGLR 61; [2002] 06 EG 156; [2002] HLR 45
Gillett v Holt [2001] Ch 201; [2000] 3 WLR 815; [2000] 2 All ER 289
Keepers and Governors of the Posessions, Revenues and Goods of the Free Grammar School of John Lyon v Mayhew [1997] 1 EGLR 88; [1997] 17 EG 163; (1997) 29 HLR 719, CA
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749; [1997] 2 WLR 945; [1997] 3 All ER 352; [1997] 1 EGLR 57; [1997] 24 EG 122; [1997] 25 EG 138, HL
9 Cornwall Crescent London Ltd v Kensington and Chelsea Royal London Borough Council [2005] EWCA Civ 324; [2005] 2 EGLR 131; [2005] HLR 40
Speedwell Estates Ltd v Dalziel [2001] EWCA Civ 1277; [2002] 1 P&CR D10; [2002] 1 EGLR 55; [2002] 02 EG 104; [2002] HLR 43, CA; [2002] L&TR 12
Willingale v Globalgrange Ltd; sub nom Willingale v Global Grange Ltd (2000) 80 P&CR 448; [2000] 2 EGLR 55; [2000] 18 EG 152, CA
This was an appeal by the defendant, Sinclair Gardens Investments (Kensington) Ltd, from a decision of HH Judge Collins, sitting in Central London County Court, allowing a claim by the claimant, Poets Chase Freehold Co Ltd, for declaratory relief in relation to a collective enfranchisement claim.
Lana Wood (instructed by Parrott & Coales, of Aylesbury) appeared for the claimant; Timothy Fancourt QC (instructed by Paul Chevalier & Co) represented the defendant.
Giving judgment, Morgan J said: |page:30|
Issue
[1] The issue in this case arises out of the right to collective enfranchisement conferred by Chapter I of Part I of the Leasehold Reform, Housing and Urban Development Act 1993 (the 1993 Act). In a case where qualifying tenants of flats, contained in premises to which Chapter I applies, serve a notice that purports to be given under section 13 of the 1993 Act, but that in fact fails to comply with the requirements of section 13(3), what, if any, is the effect of that notice? If the landlord points out that the notice does not comply with section 13(3), or if the tenants realise this for themselves, are the tenants able, without delay, to serve a further notice that does comply with section 13(3) and that will unquestionably be an effective notice under section 13? Or does the service of the first purported notice under section 13 mean that the tenants are not able to serve a second notice until they withdraw the first notice and, when they withdraw the first notice, is there a period of 12 months from such withdrawal within which there is a statutory prohibition on serving a second notice?
Facts in outline
[2] Sinclair Gardens Investment (Kensington) Ltd is the freehold owner of nine blocks of flats at Poets Chase, Aylesbury, Buckinghamshire. The point arising in this appeal relates to each of these nine blocks. There are altogether some nine actions in the county court, one action relating to each block. The county court has ordered that one of these actions should be the lead action and this appeal is brought in the lead action. The lead action concerns a block of 12 flats, the flats being numbered 1, 3, 5, 7, 9, 11, 15, 17, 19, 21, 23 and 25 Poets Chase, Aylesbury.
[3] The block of flats the subject of this appeal comprises premises to which Chapter I of Part I of the 1993 Act applies. The other conditions as to the entitlement of the tenants to give notice seeking collective enfranchisement under Chapter I of Part I of the 1993 Act are satisfied. As it happens, it does not strictly matter for the purposes of this appeal whether or not these qualifications are met because the point does not turn on the entitlement to exercise a right to collective enfranchisement but relates to the form of the document served for the purpose of seeking to exercise that right.
[4] In the first instance, I will describe the various notices in this case only briefly, since it will be necessary to return to those notices and discuss their detailed provisions after I have described the relevant statutory provisions.
[5] On or around 19 December 2005, the tenants of eight of the 12 flats in the relevant block served on the landlord a notice that purported to be a notice under section 13 of the 1993 Act. The notice referred to a company known as Poets Chase Freehold Co Ltd. The notice stated that the date by which the landlord was to serve any counternotice under section 21 of the 1993 Act was 28 February 2006.
[6] On around 22 February 2006, the landlord gave to Poets Chase Freehold Co Ltd a notice dated 22 February 2006, which purported to be a counternotice under section 21 of the 1993 Act. In summary, this counternotice asserted that the purported section 13 notice dated 19 December 2005 did not comply with the requirements of section 13(3) of the 1993 Act.
[7] On 20 April 2006, the solicitor for the tenants wrote to the landlord. The letter stated that the tenants had considered the counternotice served by the landlord and the tenants now accepted that the purported section 13 notice dated 19 December 2005 was invalid for the reasons given in the counternotice. The letter dated 20 April 2006 went on to say that the tenants were entitled to, and sought to, serve a fresh section 13 notice.
[8] On or around 20 April 2006, the same eight tenants in the block in question served a further notice purporting to be given under section 13 of the 1993 Act. This notice corrected the matters complained of in the landlord’s counternotice of 22 February 2006 in respect of the original purported section 13 notice dated 19 December 2005.
[9] On or around 26 June 2006, the landlord gave to Poets Chase Freehold Co Ltd a further purported counternotice. The document contained a number of legal contentions as to the ability of the tenants to serve a section 13 notice on 20 April 2006 in view of the fact that they had earlier served a purported section 13 notice dated 19 December 2005.
[10] On 31 July 2006, Poets Chase Freehold Co Ltd, as nominee purchaser, brought the present proceedings. In its particulars of claim, that company pleaded the sequence of notices, contended that the notice dated 19 December 2005 did not comply with section 13 of the 1993 Act so that that notice was not a notice under section 13 of the 1993 Act and, accordingly, that the tenants were not precluded from serving a valid section 13 notice on 20 April 2006. The particulars of claim claimed declaratory relief and the claim was said to be made under section 22 of the 1993 Act.
[11] On or around 21 August 2006, the landlord served a witness statement from its solicitor. The witness statement referred to the sequence of notices and contended that the notice dated 19 December 2005 failed to comply with section 13(3) of the 1993 Act. The witness statement then contended that the service of the purported section 13 notice dated 19 December 2005 meant that the tenants were not able to serve a section 13 notice on 20 April 2006.
[12] The issue as to the effect of the notice of 20 April 2006 came before HH Judge Collins (in Central London County Court) and he gave judgment on 15 December 2006. At the hearing in the county court, the nominee purchaser maintained the stance that the purported section 13 notice of 19 December 2005 did not comply with section 13 of the 1993 Act. However, the landlord appears to have changed its position. Notwithstanding the landlord’s contentions in the counternotice of 22 February 2006 and in the solicitor’s witness statement, the landlord appears to have argued that the notice dated 19 December 2005 did sufficiently comply with section 13.
[13] In the end, the judge held that the notice of 19 December 2005 did not comply with section 13(3)(d) of the 1993 Act, although he held, notwithstanding the nominee purchaser’s submissions to the contrary, that the notice sufficiently complied with section 13(3)(f) of the 1993 Act. The judge next held that because the notice dated 19 December 2005 did not comply with section 13 of the 1993 Act, it was invalid and so it did not preclude the tenants from serving a notice on 20 April 2006 that did comply with section 13 of the 1993 Act.
[14] The judge then considered arguments put forward by the landlord that the tenants and the nominee purchaser were estopped from challenging the efficacy of their own notice of 19 December 2005. The judge rejected the landlord’s case on estoppel.
[15] The result of the hearing in the county court was that the judge declared that the relevant tenants were entitled to exercise the right to collective enfranchisement in respect of the premises specified in the notice dated 20 April 2006, that the counternotice dated 26 June 2006 was of no effect and that the landlord should serve a further counternotice if so advised by 1 March 2007. Judge Collins granted permission to the landlord to appeal.
[16] The issue as to the effect of the notice dated 20 April 2006 is of particular relevance to the parties because of the provisions of para 4(2A) of Schedule 6 to the 1993 Act. That paragraph applies where, at the date of service of a section 13 notice, the unexpired term of the lease held by any of the participating members exceeds 80 years. In such a case, the requirement that the tenant pay a share of marriage value pursuant to para 4 of Schedule 6 to the 1993 Act is removed. On 20 April 2006, the participating tenants who served the notice of that date had leases with terms exceeding 80 years, but, on 1 September 2006, those terms became shorter than 80 years. Accordingly, the tenants wish to establish, and the landlord wishes to deny, that the notice dated 20 April 2006 was an effective notice under section 13 of the 1993 Act.
Statutory provisions
[17] Before considering the submissions of counsel, it is appropriate to refer to the statutory provisions. It is necessary to review many of the statutory provisions to form a clear picture as to how the provisions are intended to operate. The provisions are too lengthy to be set out verbatim. Accordingly, in relation to the majority of the provisions, |page:31| I will attempt only a paraphrase of them. It must be recognised that my paraphrase is for the purposes of giving judgment on the specific issue in this case and is not by way of exhaustive annotation of the statutory provisions. I will refer to the provisions in force at the relevant time, although it should be remembered that some of these provisions are the subject of prospective amendment where the amendments had not been brought into effect at the relevant time, nor indeed since that time.
[18] Section 1(1) of the 1993 Act provides that Chapter I of Part I has effect, for the purpose of conferring on qualifying tenants of flats contained in premises to which Chapter I applied on the relevant date, the right, exercisable subject to and in accordance with Chapter I, to have the freehold of those premises acquired on their behalf by a person appointed by them for that purpose and at a price determined in accordance with Chapter I. This right is referred to in Chapter I as “the right to collective enfranchisement”. Section 1(2) and section 1(3) have the effect that the right to collective enfranchisement may be exercised not only in relation to the premises to which Chapter I applies (the relevant premises) but also certain appurtenant property. Section 1(8) defines “the relevant date” to be the date of the notice of claim under section 13.
[19] Section 3 defines the premises to which Chapter I applies. Section 4 excludes certain premises from the right to collective enfranchisement.
[20] Section 5 defines “qualifying tenants”. Section 6 had formerly identified a residence requirement for qualifying tenants, but that requirement has since been removed. Section 7 defines “a long lease”. Section 9 describes the reversioner and other relevant landlords for the purposes of Chapter I.
[21] Section 12 entitles a qualifying tenant to obtain information about certain matters. Under section 12(2), a qualifying tenant is entitled to obtain information as to whether a landlord has received a notice under section 13 of the 1993 Act in the case of which the relevant claim is still current. Section 12(4) also refers to a notice under section 13.
[22] Section 13 of the 1993 Act is in these terms:
The initial notice
13 Notice by qualifying tenants of claim to exercise right
(1) A claim to exercise the right to collective enfranchisement with respect to any premises is made by the giving of notice of the claim under this section.
(2) A notice given under this section (“the initial notice”)
(a) must
[(i) in a case to which section 9(2) applies,] be given to the reversioner in respect of those premises; [and
(ii) in a case to which section 9(2A) applies, be given to the person specified in the notice as the recipient;] and
(b) must be given by a number of qualifying tenants of flats contained in the premises as at the relevant date which
(i) …
(ii) is not less than one-half of the total number of flats so contained;
…
[(2A) In a case to which section 9(2A) applies, the initial notice must specify
(a) a person who owns a freehold interest in the premises, or
(b) if every person falling within paragraph (a) is a person who cannot be found or whose identity cannot be ascertained, a relevant landlord,
as the recipient of the notice.]
(3) The initial notice must
(a) specify and be accompanied by a plan showing
(i) the premises of which the freehold is proposed to be acquired by virtue of section 1(1),
(ii) any property of which the freehold is proposed to be acquired by virtue of section 1(2)(a), and
(iii) any property… over which it is proposed that rights (specified in the notice) should be granted by him in connection with the acquisition of the freehold of the specified premises or of any such property so far as falling within section 1(3)(a);
(b) contain a statement of the grounds on which it is claimed that the specified premises are, on the relevant date, premises to which this Chapter applies;
(c) specify
(i) any leasehold interest proposed to be acquired under or by virtue of section 2(1)(a) or (b), and
(ii) any flats or other units contained in the specified premises in relation to which it is considered that any of the requirements in Part II of Schedule 9 to this Act are applicable;
(d) specify the proposed purchase price for each of the following, namely
(i) the freehold interest in the specified premises [or, if the freehold of the whole of the specified premises is not owned by the same person, each of the freehold interests in those premises],
(ii) the freehold interest in any property specified under paragraph (a)(ii), and
(iii) any leasehold interest specified under paragraph (c)(i);
(e) state the full names of all the qualifying tenants of flats contained in the specified premises and the addresses of their flats, and contain… in relation to each of those tenants,…
(i) such particulars of his lease as are sufficient to identify it, including the date on which the lease was entered into, the term for which it was granted and the date of the commencement of the term,
(ii) …
(iii) … ;
(f) state the full name or names of the person or persons appointed as the nominee purchaser for the purposes of section 15, and an address in England and Wales at which notices may be given to that person or those persons under this Chapter; and
(g) specify the date by which the reversioner must respond to the notice by giving a counter-notice under section 21.
(4) …
(5) The date specified in the initial notice in pursuance of subsection (3)(g) must be a date falling not less than two months after the relevant date.
…
(8) Where any premises have been specified in a notice under this section, no subsequent notice which specifies the whole or part of those premises may be given under this section so long as the earlier notice continues in force.
(9) Where any premises have been specified in a notice under this section and
(a) that notice has been withdrawn, or is deemed to have been withdrawn, under or by virtue of any provision of this Chapter or under section 74(3), or
(b) in response to that notice, an order has been applied for and obtained under section 23(1),
no subsequent notice which specifies the whole or part of those premises may be given under this section within the period of twelve months beginning with the date of the withdrawal or deemed withdrawal of the earlier notice or with the time when the order under section 23(1) becomes final (as the case may be).
(10) In subsections (8) and (9) any reference to a notice which specifies the whole or part of any premises includes a reference to a notice which specifies any premises which contain the whole or part of those premises; and in those subsections and this “specifies” means specifies under subsection (3)(a)(i).
(11) Where a notice is given in accordance with this section, then for the purposes of this Chapter the notice continues in force as from the relevant date
(a) until a binding contract is entered into in pursuance of the notice, or an order is made under section 24(4)(a) or (b) or 25(6)(a) or (b) providing for the vesting of interests in the nominee purchaser;
(b) if the notice is withdrawn or deemed to have been withdrawn under or by virtue of any provision of this Chapter or under section 74(3), until the date of the withdrawal or deemed withdrawal, or
(c) until such other time as the notice ceases to have effect by virtue of any provision of this Chapter.
(12) In this Chapter “the specified premises”, in relation to a claim made under this Chapter, means
(a) the premises specified in the initial notice under subsection (3)(a)(i), or
(b) if it is subsequently agreed or determined under this Chapter that any less extensive premises should be acquired in pursuance of the notice in satisfaction of the claim, those premises;
and similarly references to any property or interest specified in the initial notice under subsection (3)(a)(ii) or (c)(i) shall, if it is subsequently agreed or determined under this Chapter that any less extensive property or interest should be acquired in pursuance of the notice, be read as references to that property or interest.
(13) Schedule 3 to this Act (which contains restrictions on participating in the exercise of the right to collective enfranchisement, and makes further provision in connection with the giving of notices under this section) shall have effect. |page:32|
[23] Section 14 describes the participating tenants as, essentially, the qualifying tenants by whom the section 13 notice is given. Section 14 contemplates that the identity of participating tenants may change by reason of an assignment of a lease or an election to participate.
[24] Section 17 deals with rights of access. Once an initial notice has been given in accordance with section 13, the reversioner and other relevant landlords have a right of access to certain premises. Further, under section 17(2), once the initial notice has been given in accordance with section 13, the nominee purchaser has certain relevant rights of access.
[25] Section 19 of the 1993 Act describes the effect of the section 13 notice as respects subsequent transactions by the freeholder of the premises. Section 19(1) refers to the section 13 notice being registered in accordance with section 97(1). Section 97(1) permits registration of a notice given under section 13. When a section 13 notice has been registered, so long as the section 13 notice continues in force there are restrictions on the freeholder disposing of interests in the premises.
[26] Under section 20 of the 1993 Act, within 21 days beginning with “the relevant date”, which refers to the date of the section 13 notice, the reversioner may give the nominee purchaser a notice requiring it to deduce title in certain respects.
[27] Sections 21(1) and (2) of the 1993 Act provide:
21 Reversioner’s counter-notice
(1) The reversioner in respect of the specified premises shall give a counter-notice under this section to the nominee purchaser by the date specified in the initial notice in pursuance of section 13(3)(g).
(2) The counter-notice must comply with one of the following requirements, namely
(a) state that the reversioner admits that the participating tenants were on the relevant date entitled to exercise the right to collective enfranchisement in relation to the specified premises;
(b) state that, for such reasons as are specified in the counter-notice, the reversioner does not admit that the participating tenants were so entitled;
(c) contain such a statement as is mentioned in paragraph (a) or (b) above but state that an application for an order under subsection (1) of section 23 is to be made by such appropriate landlord (within the meaning of that section) as is specified in the counter-notice, on the grounds that he intends to redevelop the whole or a substantial part of the specified premises.
[28] Section 22 of the 1993 Act provides:
22 Proceedings relating to validity of initial notice
(1) Where
(a) the reversioner in respect of the specified premises has given the nominee purchaser a counter-notice under section 21 which (whether it complies with the requirement set out in subsection (2)(b) or (c) of that section) contains such a statement as is mentioned in subsection (2)(b) of that section, but
(b) the court is satisfied, on an application made by the nominee purchaser, that the participating tenants were on the relevant date entitled to exercise the right to collective enfranchisement in relation to the specified premises,
the court shall by order make a declaration to that effect.
(2) Any application for an order under subsection (1) must be made not later than the end of the period of two months beginning with the date of the giving of the counter-notice to the nominee purchaser.
(3) If on any such application the court makes an order under subsection (1), then (subject to subsection (4)) the court shall make an order
(a) declaring that the reversioner’s counter-notice shall be of no effect, and
(b) requiring the reversioner to give a further counter-notice to the nominee purchaser by such date as is specified in the order.
(4) Subsection (3) shall not apply if
(a) the counter-notice complies with the requirement set out in section 21(2)(c), and
(b) either
(i) an application for an order under section 23(1) is pending, or
(ii) the period specified in section 23(3) as the period for the making of such an application has not expired.
(5) Subsections (3) to (5) of section 21 shall apply to any further counter-notice required to be given by the reversioner under subsection (3) above as if it were a counter-notice under that section complying with the requirement set out in subsection (2)(a) of that section.
(6) If an application by the nominee purchaser for an order under subsection (1) is dismissed by the court, the initial notice shall cease to have effect at the time when the order dismissing the application becomes final.
[29] Under section 24, where the reversioner has given the nominee purchaser a counternotice that admits the entitlement to exercise the right to collective enfranchisement, but where any of the terms of the acquisition remain in dispute, the matter is to be referred to a leasehold valuation tribunal (LVT).
[30] Section 25 deals with the case where the reversioner has failed to give a counternotice. In those circumstances, the court may, on the application of the nominee purchaser, make an order determining the terms upon which it is to acquire such interests and rights as are specified in the section 13 notice under section 13(3). The terms in the order are to be “in accordance with the proposals contained in the initial notice”. I interpose that it has been held by the Court of Appeal in Willingale v Globalgrange Ltd [2000] 2 EGLR 55 that the court does not have a discretion as to the terms of the acquisition but must adopt the proposals contained in the section 13 notice. This is subject to section 25(3), which provides that the court must not make an order determining the terms of the acquisition unless the court is satisfied, in particular, that the participating tenants were, on the relevant date, entitled to exercise the right to collective enfranchisement in relation to the specified premises.
[31] Section 28 deals with the participating tenants withdrawing from the proposed acquisition. By section 28(1), at any time before a binding contract is entered into in pursuance of the initial notice, the participating tenants may withdraw that notice by the giving of a notice to that effect under section 28 (a notice of withdrawal). Section 28 does not identify any particular formality as to the contents of a notice of withdrawal. Section 29 deals with the situations in which there is a deemed withdrawal of the section 13 notice. It is not necessary to list those situations, although it is right to point out that there can be a deemed withdrawal in a large number of different situations.
[32] Sections 30 and 31, dealing with the very different matters of compulsory acquisition and inheritance tax, refer to a notice “given under Section 13” being “of no effect”.
[33] Section 32 deals with the determination of the price payable for the acquisition and cross refers to detailed provisions in Schedule 6 to the 1993 Act.
[34] Section 33(1) provides for circumstances where a notice is given under section 13 for the nominee purchaser to be liable for the landlord’s costs of certain matters and, in particular, any investigation reasonably undertaken of the question of whether any interest in the specified premises or other property is liable to acquisition in pursuance of the section 13 notice, or of any other question arising out of the section 13 notice. Section 33 refers in a number of places to the section 13 notice “ceasing to have effect”.
[35] Section 37A of the 1993 Act was introduced by amendment contained in para 2(1) of Schedule 11 to section 116 of the Housing Act 1996. It is, in my view, a significant provision, and is designed to deal with some of the consequences of para 10 of Schedule 3 to the 1993 Act, to which I later refer. Section 37A provides for certain circumstances in which a landlord is entitled to compensation for the postponement of termination of a tenancy in connection with ineffective claims. Section 37A(1) refers to a claim to exercise the right to collective enfranchisement being “not effective”. Section 37A(2) refers to such a claim ceasing “to have effect”. Section 37(8) defines a “claim to exercise the right to collective enfranchisement” and “the date on which a claim ceases to have effect”. It should be emphasised that these definitions are for the purposes of section 37A and are not for the purposes of Chapter 1 of Part 1 more generally. Thus, section 37A(8) defines “a claim to exercise the right to collective enfranchisement” so that it includes “a notice given, or purporting to be given (whether by persons who are qualifying tenants or not), under Section 13”. Further, the phrase “the dates on which the claim ceases to have effect” extends “in the case of a claim made by a notice which is not a valid notice under Section 13” to “the date on which the notice is set aside by the court or is withdrawn or would, if valid, cease to have effect or be deemed to have been withdrawn”.
[36] Section 38(1) defines “the initial notice” to mean “the notice given under Section 13”. |page:33|
[37] Section 90 deals with the jurisdiction of the county court. By section 90(1), any jurisdiction expressed to be conferred on the court by Part I of the 1993 Act is to be exercised by a county court. By section 90(2), it is provided that any proceedings for determining any question arising under or by virtue of any provision of Chapter I that is not a question falling within section 90(1) (or within the jurisdiction of an LVT by virtue of section 91) is also to be brought in a county court.
[38] Section 99 deals, generally, with the subject of notices. By section 99(5), a notice given under section 13 must be signed by each of the tenants by whom it is given.
[39] Schedule 3 to the 1993 Act contains supplementary provisions in relation to a notice under section 13. Paragraphs 5, 6, 7 and 8 place various restrictions on the action that may be taken by a landlord during the currency of a claim under section 13. Paragraph 10 of Schedule 3 contains a number of relevant definitions, but it should be noted that these definitions are for the purposes of Part 1 of Schedule 3 to the 1993 Act and are not of wider application. By para 10(1)(b), references to a notice under section 13 include, in so far as the context permits, references to a notice purporting to be given under section 13 (whether by persons who are qualifying tenants or not). By para 10(1)(d), references to “the currency of a claim”, in a case where the claim is made by a notice “which is not a valid notice under Section 13” are references to the period beginning with the giving of the notice and ending with the time at which the notice is set aside by the court or is withdrawn or when it would (if valid) cease to have effect or be deemed to have been withdrawn.
[40] Paragraph 15 of Schedule 3 to the 1993 Act deals with inaccuracies or misdescriptions in a notice under section 13. It is provided that the notice under section 13 is not to be invalidated by an inaccuracy in any of the particulars required by section 13(3) or by any misdescription of any of the property to which the claim extends. Paragraph 15(2) provides for the possibility of an amendment of the section 13 notice to exclude or include any property or any interest. Paragraph 15(3) provides for the way in which the section 13 notice operates in the case of such an amendment.
[41] For the sake of completeness, I will refer briefly to the provisions of Chapter II of Part I of the 1993 Act. Chapter II provides for the individual right of a tenant of a flat to acquire a new lease of that flat. The scheme of Chapter II is, in many respects, similar to the scheme of Chapter I. There is one important difference in that, for the purposes of Chapter I, where qualifying tenants give notice under section 13 that is met by a reversioner’s counternotice under section 21 that does not admit the tenants’ entitlement to exercise the right to collective enfranchisement, the relevant proceedings before the court to test that matter are to be brought by the nominee purchaser. In the case of Chapter II, where a tenant gives a notice under section 42 to exercise the right to acquire a new lease of a flat and is met by a landlord’s counternotice under section 45 that does not admit the tenant’s right to acquire a new lease of the flat, the application to the court to test that matter is to be brought by the landlord under section 46. In the past, decisions of the courts in relation to Chapter II of Part 1 of the 1993 Act have been regarded as relevant for the purpose of construing Chapter 1 of Part I of the 1993 Act, and vice versa.
Notices in more detail
[42] Having described the relevant statutory provisions, I can now return to the various notices served in this case. The notice dated 19 December 2005 related to the relevant block of 12 flats at Poets Chase, Aylesbury. The notice was given by the lessees of eight of the 12 flats. These lessees were the participating tenants. Paragraph 1 of the notice identified the premises, of which the freehold was proposed to be acquired pursuant to section 1(1) of the 1993 Act, as the block itself. Paragraph 2 of the notice identified the property, of which the freehold was proposed to be acquired by virtue of section 1(2)(a) of the 1993 Act, as certain appurtenant property. Paragraph 3 of the notice identified certain rights, which it was proposed should be granted over other land. Paragraph 5 of the notice stated that the proposed purchase price was £17,953. Paragraph 7 of the notice contained the following statement: “The RTE Company appointed to act is Poets Chase Freehold Company Limited.”
[43] The notice dated 22 February 2006 was described as a counternotice by the reversioner pursuant to section 21 of the 1993 Act. This notice did not admit, for the reasons specified in the counternotice, that the participating tenants were entitled to exercise the right to collective enfranchisement in relation to the specified premises. Paragraph 2 of the counternotice gave the reasons for not admitting the entitlement to exercise the right to collective enfranchisement. The reasons given in para 2 of the counternotice did not relate to any question as to whether the participating tenants satisfied the qualifying conditions for being able to exercise the right to collective enfranchisement but were all concerned with the question of whether the notice dated 19 December 2005 did or did not comply with section 13(3) of the 1993 Act. The first point that was made was that section 13(3)(d) of the 1993 Act required the section 13 notice to specify separate prices for the property being acquired under section 1(1) of the 1993 Act and the property being acquired under section 1(2)(a) of the 1993 Act. The notice dated 19 December 2005 had not specified separate prices. The second point made in the counternotice was that section 13(3)(f) required a section 13 notice to state the full name of the person nominated as purchaser whereas the notice dated 19 December 2005 had referred to the RTE company. I have set out section 13(3)(f) earlier in this judgment. That paragraph, in the form in which it applied at the relevant time, did require the section 13 notice to state the full name of the person appointed as the nominee purchaser. By the date of the notices in this case, section 13(3)(f) was the subject of an identified amendment under section 124 of the Commonhold and Leasehold Reform Act 2002. That amendment had not been brought into force at the relevant time and when it does come into force it will require the section 13 notice to give the name and registered office of the RTE company. It is plain that the notice dated 19 December 2005 had wrongly proceeded on the basis that the prospective amendment of section 13(3)(f) was already in force. Paragraph 2 of the counternotice ended with the contention on the part of the landlord that an initial notice had not been served in compliance with the 1993 Act and, in particular, with the mandatory requirements of the Act in relation to participating tenants exercising the right to collective enfranchisement in relation to specified premises.
[44] It is convenient to deal with the grounds of objection to the notice dated 19 December 2005 at this point. Before the judge in the county court, the nominee purchaser, Poets Chase Freehold Co Ltd, adopted the criticisms in the counternotice and submitted that the notice dated 19 December 2005 did not comply with section 13(3) of the 1993 Act. The landlord submitted the contrary, notwithstanding the position that it had adopted in its counternotice. The judge ruled on the two grounds of objection under section 13(3)(d) and 13(3)(f) respectively. He held that the objection based upon section 13(3)(d) was well founded but that the objection based upon section 13(3)(f) was not. In relation to the second point, the judge directed himself that he was able to apply to the notice dated 19 December 2005 the test in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749* as to how a reasonable recipient would have understood the notice. He held, applying that test, that a reasonable recipient would have understood that the notice, when it referred to the RTE company, was referring to the nominee purchaser, which therefore was identified as Poets Chase Freehold Co Ltd. The overall conclusion reached by the judge was that the notice dated 19 December 2005 did not comply with the mandatory requirements of section 13(3) of the 1993 Act, with the result that the participating tenants would not have been able to advance their claim to acquire the freehold of the block and the appurtenant property in reliance upon that notice.
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* Editor’s note: Also reported at [1997] 1 EGLR 57
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[45] Returning to the chronology in respect of the notices, the next event was the letter from the tenants’ solicitor to the landlord on 20 April 2006. This letter stated that the tenants had considered the |page:34| counternotices served by the landlord and that the tenants accepted that the notice dated 19 December 2005 was invalid for the reasons given in the counternotice. The letter went on to say that since no valid initial notice had been served, the tenants were entitled to serve a fresh notice and, under the cover of the letter, they sought to do so.
[46] Under cover of the letter of 20 April 2006, the same participating tenants sought to serve a further notice seeking to comply with section 13 of the 1993 Act. This notice did not have the defects that had existed in the notice of 19 December 2005.
[47] On 26 June 2006, the landlord served a notice that purported to be a counternotice under section 21 of the 1993 Act. This counternotice did not admit that the participating tenants were entitled to exercise the right to collective enfranchisement in relation to the relevant premises. This non-admission was for the reasons specified in the counternotice. Paragraph 2 of the counternotice contained the reasons relied upon. The reasons in para 2 all related to the fact that the participating tenants had served the earlier notice of 19 December 2005 and, in various ways, it was contended that this disabled the participating tenants from serving a valid section 13 notice (as they had sought to do) on 20 April 2006. The reversioner’s counternotice of 26 June 2006 did not raise any question as to the participating tenants’ satisfaction of the qualifying conditions or in any other respect as to their entitlement to acquire the freehold of the block under Chapter I of Part I of the 1993 Act.
Landlord’s submissions
[48] Mr Timothy Fancourt QC, who appeared on behalf of the landlord, took me carefully through the provisions of Chapter I of Part I of, and of Schedule 3 to, the 1993 Act. He submitted that it was essential to understand the operation of the scheme created by those provisions for the purpose of deciding the issue on this appeal. Turning to section 13, he submitted that a notice that did not comply with section 13(2) was not “given in accordance with” section 13, and he explained the consequences of a purported notice not complying with section 13(2). Conversely, if a notice did comply with section 13(2), it was given in accordance with section 13. Further, a notice that purported to be given under section 13 was a notice “under Section 13” whether or not the purported notice complied with all the requirements of section 13(3). He contrasted the position of a notice that did not comply with section 13(2) with a notice that did not comply with section 13(3). He referred to the phrase “entitled to exercise the right to collective enfranchisement” that appears in section 21, dealing with the reversioner’s counternotice, and in section 22, which, according to the heading to the section, deals with proceedings relating to the “validity of initial notice”. He submitted that this phrase, referring to the entitlement to exercise the right to collective enfranchisement, referred, first, to questions as to whether the qualifying conditions for the existence of entitlement were satisfied, but second, and further, to a matter such as whether a notice complying in all respects with section 13 of the 1993 Act had been served in order to exercise that entitlement. Although it was clear that a notice given in accordance with section 13(2) but that did not comply with section 13(3) was still a notice under section 13, the position was even more clear following the giving of a counternotice under section 21. The existence of the counternotice meant that disputes about the validity of the initial notice (including disputes as to compliance with section 13(3)) had to be processed under section 22. While that process was ongoing, the notice in question was a notice given under section 13 and “continued in force” for the purposes of section 13(8). That meant that following the giving of a counternotice, the nominee purchaser could apply under section 22 to ask the court to determine whether the purported section 13 notice did or did not comply with section 13(3). If the court determined that the purported section 13 notice did not comply with section 13(3), the purported section 13 notice ceased to have effect at that time under section 22(6). If the nominee purchaser did not apply to the court under section 22 within the time limit laid down by that section, there was a deemed withdrawal under section 29(1). It was also open to participating tenants who had served a purported section 13 notice, but who later realised that the notice did not comply with section 13(3), to withdraw it under section 28. The prohibition on further notices contained in sections 13(8) and 13(9) should be applied in accordance with this understanding of the statutory provisions.
[49] In the alternative to these submissions, Mr Fancourt submitted that the participating tenants and the nominee purchaser were estopped from asserting that the notice dated 19 December 2005 did not comply with section 13(3). The relevant estoppel was estoppel by representation. By giving the notice dated 19 December 2005, the participating tenants and the nominee purchaser had represented that that notice complied with section 13(3). The reversioner had relied upon that representation because it received the notice, instructed its solicitor to consider the notice and to advise the reversioner on the appropriate response to the notice. Although there was no specific evidence to this effect, it was to be inferred that the reversioner had become liable to pay its solicitor a fee for acting on the reversioner’s instructions. The reversioner then served the counternotice dated 22 February 2006. This amounted to detrimental reliance upon the part of the reversioner and it should be held that it would be inequitable for the participating tenants and the nominee purchaser to contend for the invalidity of their own notice dated 19 December 2005. Accordingly, all the necessary ingredients of an estoppel were established.
Nominee purchaser’s submissions
[50] Ms Lana Wood appeared on behalf of the nominee purchaser. She submitted, by reference to the statutory provisions, that there was a clear distinction to be made between the entitlement of tenants to exercise the right to collective enfranchisement and the requirements as to the form and contents of a notice under section 13, by which the tenants sought to exercise that right. The operation of section 21 (dealing with the reversioner’s counternotice) and of section 22 (dealing with applications to the court) had to be considered consistently with that distinction. A question as to the tenants’ underlying entitlement to exercise the right to collective enfranchisement was properly the subject of sections 21 and 22. A question as to whether the tenants, who were entitled to exercise the right to collective enfranchisement, had served a notice complying with section 13(3) was not properly the subject of sections 21 and 22. In the present case, the county court judge had found that the notice dated 19 December 2005 did not comply with the mandatory requirements of section 13(3)(d). In accordance with the usual position as to validity of notices, that conclusion must mean that the notice dated 19 December 2005 was invalid. More particularly, it was not a notice given under section 13 nor was it a notice given in accordance with section 13. Because it was invalid, it had no force and could not to be said to “continue in force” for the purpose of section 13(8). The result was that the tenants were, absent any estoppel, entitled to accept the invalidity of the notice of 19 December 2005 (particularly when that invalidity had been pointed out by the landlord) and to serve the notice dated 20 April 2006, which would be, for the first time, a notice under section 13. Ms Wood further submitted that Mr Fancourt’s contention that a notice that did not comply with section 13(3) was none the less a notice under section 13 would result in the 1993 Act failing to operate. She gave, as examples, a purported notice under section 13 that did not identify a nominee purchaser in accordance with section 13(3)(f) or a notice that purported to be given under section 13 but that did not specify a date for a counternotice under section 21 (as required by section 13(3)(g)). She questioned how the provisions of the 1993 Act could work if such a notice was a notice under section 13 and was registered under section 97(1), leading to a fetter on the landlord’s right to make disposals under section 19. She also pointed out anomalies that would arise if one followed through Mr Fancourt’s analysis, which distinguished a notice that did not comply with section 13(3) (which he said was a notice under section 13) from a notice that did not comply with section 13(2) (which he said was not a notice under section 13).
[51] As to estoppel, Ms Wood submitted that the participating tenants and the nominee purchaser did not make any relevant representation. In particular, they did not represent that the notice dated 19 December 2005 was a valid notice or that it complied with section 13(3). What they did was to make a statement that they wished to serve a notice under |page:35| section 13 rather than that they had effectively done so. In any case, the landlord did not rely upon the alleged statement as to the validity of the notice of 19 December 2005. The landlord, in its counternotice, immediately contradicted that alleged statement and could not be said to have relied upon it. Further, the landlord did not act to its detriment. Even if the landlord had incurred some liability for fees to its solicitor, the sum in question must have been modest and would be too trivial to give rise to an estoppel in this case. Further, even if there was a measurable element of detrimental reliance, there was not sufficient detrimental reliance to make it inequitable for the participating tenants and the nominee purchaser to agree with the landlord in relation to the landlord’s contention that the notice of 19 December 2005 did not comply with section 13(3).
Discussion
[52] These submissions require one to examine the scheme of Chapter I of Part I of the 1993 Act and to determine the effect, if any, of a document that purports to be a notice under section 13 of the 1993 Act but that fails to comply with the mandatory requirements of section 13(3).
[53] The county court judge held that the notice dated 19 December 2005 failed to comply with the mandatory requirement contained in section 13(3)(d) of the 1993 Act. There is no appeal by either party against that decision. That decision means that the tenants would not be able to pursue their aim of acquiring the freehold of the block by relying upon the notice dated 19 December 2005.
[54] Speaking generally, if a mandatory contractual or statutory provision requires a party to give a notice in a particular form in order to achieve a result identified in the contract or statute, and if a purported notice given by that party fails to comply with the mandatory contractual or statutory provision, the normal position is that the notice has no legal effect. This general position may be modified by, for example, a provision such as that contained in para 15 of Schedule 3 to the 1993 Act, which deals with inaccuracies and misdescriptions in a section 13 notice. However, the county court judge held that the notice dated 19 December 2005 was not saved by that statutory provision. Further, the general position is modified by the application of the Mannai test as to the reaction of a reasonable recipient to the imperfect notice. Again, the county court judge held that the notice dated 19 December 2005 was not saved by an application of the Mannai test. It was held by the Court of Appeal in Speedwell Estates Ltd v Dalziel [2001] EWCA Civ 277; [2002] L&TR 12* that a notice that does not comply with mandatory statutory requirements and that is not saved by a provision such as para 15 of Schedule 3 to the 1993 Act in the present case or by the Mannai test is invalid; that case concerned the Leasehold Reform Act 1967, which contained, in para 6(3) of Schedule 3, a provision broadly similar to para 15 of Schedule 3 to the 1993 Act. The approach in Speedwell Estates was applied again by the Court of Appeal in Burman v Mount Cook Land Ltd [2001] EWCA Civ 1712; [2002] Ch 256† (relating to a notice under Chapter II of Part I of the 1993 Act).
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* Editor’s note: Also reported at [2002] 1 EGLR 55
† Editor’s note: Also reported at [2002] 1 EGLR 61
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[55] Thus, in the absence of any provision in Chapter I of Part 1 of the 1993 Act that reverses this normal result, one would conclude that the notice dated 19 December 2005, which purported to be a notice under section 13 of the 1993 Act, but which has been held not to comply with the mandatory requirements of section 13(3), was not a notice “under Section 13” nor a notice “in accordance with Section 13” nor a notice that “has effect” for the purposes of section 13. In these circumstances, one needs to examine Chapter I of Part I of the 1993 Act to see if there is a statutory provision that reverses the normal effect of this defective notice.
[56] The first point that strikes me is that there are particular provisions that have effect for Chapter I of Part I, which give some statutory effect to what is otherwise an invalid notice, but those special cases are of limited application and, in particular, are not material to anything that arises in the present dispute. I refer to the provisions contained in para 10 of Schedule 3 and the supporting provision now contained in section 37A of the 1993 Act. The fact that those provisions have a defined limited effect strongly supports the conclusion that, in other respects, the normal result applies and the normal result is that a notice that does not comply with a mandatory statutory requirement as to its contents is an ineffective notice.
[57] Mr Fancourt contended that there are provisions in Chapter I of Part I of the 1993 Act that mean that the notice dated 19 December 2005 does have statutory consequences and despite the non-compliance with section 13(3), the notice dated 19 December 2005 is a notice “under Section 13” and a notice “in accordance with Section 13”, and it is a notice that “continues in force” under section 13. As was seen, Mr Fancourt built his case on the terms of section 21 of the 1993 Act, which refers to the participating tenants being entitled, or not entitled, to exercise the right to collective enfranchisement and, further, the terms of section 22 that again refer to the tenants being entitled, or not entitled, to exercise the right to collective enfranchisement.
[58] In my judgment, Mr Fancourt’s explanation of the operation of the statutory provisions is incorrect. The 1993 Act, in a number of places, distinguishes between the entitlement to exercise the right to collective enfranchisement and the question of whether a claim to exercise that entitlement complies with mandatory statutory requirements. My understanding of the operation of the provisions in Chapter I of Part I of the 1993 Act is best illustrated by considering some examples.
[59] Assume a notice that complies with section 13(3) of the 1993 Act. Assume also that the landlord wishes to challenge the tenants’ entitlement to exercise the right to collective enfranchisement as claimed in the section 13 notice. If the landlord does wish to challenge that entitlement, the landlord can give a counternotice under section 21 to that effect. The counternotice will give the reasons for the challenge to the claimed entitlement. Those reasons will not say anything about whether the section 13 notice complies with section 13(3) because, on the assumed facts, the notice does comply. If an appropriate application is made to the county court, the county court will determine whether the tenants were or were not entitled to exercise the right to collective enfranchisement. If the court holds that the tenants were entitled to exercise the right to collective enfranchisement then, on the assumed facts, having served a notice complying with section 13, the way is open for the tenants to proceed to acquire the freehold. If the court holds that the tenants were not entitled to exercise the right to collective enfranchisement (even though they have served a notice that complies with section 13(3)), the court will dismiss the application under section 22, and the section 13 notice, which up to that point had effect as a claim, will cease to have effect: see section 22(6).
[60] Assume, next, a purported notice under section 13 of the 1993 Act that does not comply with the mandatory requirements of section 13(3). A landlord receiving such a notice is entitled to say that the notice is of no effect. The landlord does not need to serve a counternotice under section 21 to make that statement. Indeed, the statement that the notice is of no effect because it does not comply with section 13(3) is not a statement either way as to whether the tenants are entitled to exercise the right to collective enfranchisement. If the purported section 13 notice does not comply with section 13(3), one does not get to the question of whether, at the date of the giving of the notice, the tenants were or were not so entitled. It may be that the landlord will not wish to rely only upon an argument that the purported section 13 notice does not comply with section 13(3) and is accordingly invalid, and may wish in addition (without prejudice to that contention) to serve a counternotice that either does or does not admit the entitlement to exercise the right to collective enfranchisement. There is nothing inconsistent in the landlord saying, first, that the purported section 13 notice is ineffective because it does not comply with section 13(3), but, second, if the section 13 notice were held to be valid, the landlord admits the tenants’ entitlement to exercise the right to collective enfranchisement. If the landlord served a counternotice in those circumstances, there would not be an issue under section 22 as |page:36| to whether the tenants were entitled to exercise the right to collective enfranchisement, but there would be an issue as to whether the tenants, who are admitted to be so entitled, had effectively put the process in motion by serving a valid section 13 notice. The county court has jurisdiction to determine that issue: see section 90(2).
[61] Having explained my understanding of how the scheme of Chapter I of Part I works, it is my conclusion that there is nothing in that scheme that requires one to hold, contrary to the normal position with non-compliant notices, that a purported notice under section 13, which fails to be effective because it does not comply with section 13(3), none the less has some statutory consequences such that it is to be treated as a notice “under Section 13” or a “notice in accordance with Section 13” or as a “notice which continues in force” until the tenants accept that the notice does not comply with section 13(3) and is ineffective.
Conclusion as to the statutory provisions
[62] Because the notice dated 19 December 2005 did not (as the county court judge held) comply with section 13(3) of the 1993 Act, it was not a valid notice under section 13. That matter having been drawn to the tenants’ attention by the landlord, there was no statutory prohibition on the tenants accepting that they had failed to serve a valid notice under section 13. In those circumstances, the prohibition on a subsequent notice contained in section 13(8) did not apply because the notice dated 19 December 2005 was not a notice under section 13 and was not “in force”. Since the notice dated 19 December 2005 was not effective and was not in force, it did not have to be “withdrawn” under section 28 of the 1993 Act. Further, the fact that the nominee purchaser did not apply to the court, under section 22, within two months of the purported counternotice of 22 February 2006 did not result in a deemed withdrawal under section 29(1). Accordingly, there was no scope in the present case for section 13(9) to preclude the tenants from serving what was otherwise a valid section 13 notice on 20 April 2006.
[63] It follows from the above that the section 13 notice of 20 April 2006 was a valid notice under section 13.
[64] There was no argument before me as to the effect of the purported counternotice of 26 June 2006. It will be remembered that that document challenged the validity of the section 13 notice dated 20 April 2006 by reliance upon the suggested prohibition in section 13 on serving that notice at that time. For the reasons that I have given, those contentions put forward by the landlord were wrong. The purported counternotice dated 26 June 2006 did not deal with the question of underlying entitlement but dealt only with the validity of the notice dated 20 April 2006 for the purpose of section 13. As I say, no argument as to the validity of the counternotice was addressed to me and the point does not appear to have been raised before the county court judge, who ordered the landlord to give a further counternotice to the nominee purchaser if so advised by 1 March 2007. There has been no appeal against that part of the judge’s order and, accordingly, I need reach no conclusion upon it.
[65] I note that my understanding of the operation of the statutory provisions is supported by a comment on the provisions in the judgment of Auld LJ in 9 Cornwall Crescent London Ltd v Kensington and Chelsea Royal London Borough Council [2005] EWCA Civ 324; [2005] 2 EGLR 131, in [8]. Auld LJ plainly thought that if tenants gave a notice that was agreed or held to be invalid for want of compliance with the requirements of section 13, there would be no bar to the tenants giving a valid notice without delay.
[66] I also note that my decision is in accordance with a comment in the standard text book on the subject, namely, Hague on Leasehold Enfranchisement (4th ed) in para 25-18.
[67] The result of the above is that, at least so far as the statutory provisions are concerned, the tenants were entitled to serve a valid section 13 notice on 20 April 2006 and the notice that they served on that date was in all respects a valid notice.
Estoppel
[68] The landlord rightly contends that the tenants would not have been entitled to serve a valid section 13 notice on 20 April 2006 if they had already served a valid section 13 notice on 19 December 2005. The landlord relies upon section 13(8) of the 1993 Act. The landlord contends that the tenants are estopped from denying that the notice dated 19 December 2005 is a valid section 13 notice and are, accordingly, estopped from putting forward the notice of 20 April 2006 as a valid section 13 notice.
[69] The argument based upon estoppel requires one to examine the following ingredients of an estoppel. Did the tenants make a relevant representation? Did the landlord rely upon that representation? Was the landlord’s reliance sufficiently detrimental? In all the circumstances, is it inequitable for the tenants to go back on any such representation? Are the tenants estopped from asserting the invalidity of the notice of 19 December 2005 given that the landlord itself has asserted the invalidity of that notice for the purposes of section 13?
[70] Ms Wood argued that the notice dated 19 December 2005 did not include any representation that it was a valid notice under section 13. In my judgment, there is something to be said for that argument and the answer is not clear-cut. In view of the other points in relation to estoppel, which, in my judgment, are very clear, I will not discuss this point further. I will assume in the landlord’s favour that the alleged representation as to validity was made.
[71] As to reliance, in my judgment, the landlord did not rely upon a representation, if made, that the notice of 19 December 2005 was valid for the purposes of section 13. The landlord may well have considered whether the notice of 19 December 2005 was or was not valid but did not rely upon a representation, if made, by the tenants to the effect that the notice was valid. Having considered the matter, the landlord contended in its purported counternotice that the notice of 19 December 2005 was invalid. It is true that the landlord reacted to the notice, but it did not rely upon it. It did the very opposite. In my judgment, the case for an estoppel founders on the absence of reliance.
[72] There was no positive evidence as to the landlord having suffered any detriment as a result of the section 13 notice. The landlord’s solicitor’s witness statement did not refer to that topic at all. It was submitted that the inference could be drawn that the landlord must have incurred a liability to pay a fee to the solicitor for considering the section 13 notice. I am far from certain about that; it all depends upon whether the solicitor’s arrangements with its client provided for a fee on a time basis for each item of work or whether there was a fixed fee for taking on items of work of a particular character whenever they arose. However, I will again assume in the landlord’s favour that the landlord would have become liable for a fee for the solicitor’s work in considering the notice dated 19 December 2005. Assuming, contrary to my earlier conclusion, that this occurred in reliance upon the notice dated 19 December 2005, is that sufficient to found an estoppel?
[73] In Banner Industrial & Commercial Properties Ltd v Clark Paterson Ltd [1990] 2 EGLR 139, it was said that trivial acts of reliance would not be sufficient to found an estoppel. The question of whether the suggested acts of reliance are sufficiently substantial has to be addressed as part of the broader question posed by Robert Walker LJ in Gillett v Holt [2001] Ch 201, at p232E, in these terms: “[W]hether the detriment is sufficiently substantial is to be tested by whether it would be unjust or inequitable to allow the assurance to be disregarded that is, again, the essential test of unconscionability”. In my judgment, if, contrary to my findings, the landlord did rely upon a representation by the tenants, if made, as to the validity of the notice of 19 December 2005, any element of detriment involved in that reliance is not sufficiently substantial to make it unjust or inequitable or unconscionable for the tenants to point out that the notice of 19 December 2005 did not comply with section 13(3) of the 1993 Act.
[74] Mr Fancourt drew my attention to Bremer Handels GmbH v Vanden-Avenne Izegem PVBA [1978] 2 Lloyd’s Rep 109, at p127, and to Keepers and Governors of the Possessions, Revenues and Goods of the Free Grammar School of John Lyon v Mayhew [1997] 1 EGLR 88, at p89M, as illustrations of cases in which legal costs incurred in reliance upon a representation as to the validity of an earlier notice were held to produce the result that there was detrimental reliance upon the representation. The first of these cases did not decide any question of |page:37| principle: see at p116, col 2. In the second of these cases, the incurring of costs was not the only detriment. In my judgment, there is nothing in those cases that affects the statement of principle in Gillett nor my application of that principle to the facts of this case.
[75] Quite apart from the above matters, I have great difficulty in understanding how the landlord can contend that the tenants were still estopped on 20 April 2006 (when they made their second attempt to give a section 13 notice) from challenging the validity of the notice of 19 December 2005, when the landlord had already contended by its counternotice of 22 February 2006 that the notice of 19 December 2005 was of no effect. It would be a very strange result if one held that the landlord was free to contend that the notice of 19 December 2005 was ineffective under section 13, whereas the tenants were estopped from agreeing with the landlord in that respect.
Overall result
[76] The result is that the appeal is dismissed.
Appeal dismissed.
