Landlord and tenant — Rent review provisions in lease — Construction — Appeal from decision of Judge Micklem sitting as a judge of the Chancery Division — Case concerned review of ground rent of lease for 99 years from November 12 1979 — Reviews at intervals of five years — Failing agreement (which did not take place) between the parties a ‘reasonable current ground rental value’ of the demised premises was to be assessed by a valuer acting as an expert — The site which was the subject of the lease was for a public house, which was in due course erected — The material part of the review clause provided that the hypothetical lease on which the ground rental value was to be based was to be the lease of a bare site clear of all buildings, there being disregarded the effect of the lessee’s occupation, goodwill, and any addition to value attributable to an on-licence — The judge at first instance, deciding in favour of submissions made by the landlords, held that the hypothetical lease should be on such terms and conditions as the valuer, acting as expert, regarded as reasonable for a lease of a bare site for development at the relevant date and on the footing that the site would be available for any lawful use, not restricted to use as a public house — In giving the judgment of the Court of Appeal, Nicholls LJ made some general observations on the construction of rent review clauses — The meaning depends upon the particular language used having regard to the context provided by the whole document and the matrix of the material surrounding circumstances — While recognising that the intentions of the parties as expressed in the particular language used will always be of paramount importance, it is proper and sensible to have in mind what normally is the commercial purpose of such a clause — The purpose is to reflect changes in the value of money and real increases in the value of the property during a long term — The valuer will achieve this purpose if he assesses the up-to-date rent on the same terms (other than as to the quantum of rent) as the subsisting terms of the actual lease; not on terms more or less onerous than the latter — Of course the parties can in clear words express their intention to enter into some unusual or eccentric bargain which is on the face of it unfair to one of them — This is the effect of the authorities and the fact that the rent in the present case was, unusually, a ground rent made no difference — If these principles are applied, the judge in the present case was in error in refusing to have regard to the terms of the actual lease, including the stringent user clause — The result was too unfair to the tenant to be within the parties’ intentions — The hypothetical letting must be on the same terms (other than as to quantum of rent) as those subsisting in the actual lease modified only to the extent expressly provided in the review clause — Appeal allowed
The following cases are referred to in this report.
British Gas Corporation v Universities Superannuation Scheme Ltd [1986] 1 WLR 398; [1986] 1 All ER 978; [1986] 1 EGLR 120; (1986) 277 EG 980
Equity & Law Life Assurance Society plc v Bodfield Ltd [1987] 1 EGLR 124; (1987) 281 EG 1448, CA
Pearl Assurance plc v Shaw [1985] 1 EGLR 92; (1984) 274 EG 490
Ponsford v HMS Aerosols Ltd [1979] AC 63; [1978] 3 WLR 241; [1978] 2 All ER 837; (1978) 38 P&CR 270; [1978] EGD 137; 247 EG 1171, [1978] 2 EGLR 81, HL
This was an appeal by the defendant tenants, The Host Group Ltd, from the decision of Judge Micklem, sitting as a judge of the Chancery Division, on questions raised in an originating summons by the plaintiff landlords, the present respondents, Basingstoke and Deane Borough Council. The summons concerned the construction of the rent review clause in a lease by the council of the Pig and Whistle public house at Brighton Hill, Basingstoke, and Judge Micklem’s decision on it is reported at [1986] 2 EGLR 107; (1986) 279 EG 505.
W J Mowbray QC and W D C Poulton (instructed by Dixon Ward & Co) appeared on behalf of the appellants; T L G Cullen QC and Miss Hazel Williamson (instructed by D R Hudson, director of legal and estates services, Basingstoke and Deane Borough Council) represented the respondents.
Giving the judgment of the court at the invitation of Slade LJ, NICHOLLS LJ said: This is the judgment of the court on an appeal concerning the ground rent payable for the Pig and Whistle public house at Brighton Hill, Basingstoke, Hants. The appeal, which is brought by the defendant tenant, The Host Group Ltd, from a decision of His Honour Judge Micklem sitting as a judge of the Chancery Division on April 18 1986, raises a question of construction of a rent review provision in a lease.
The lease is dated November 22 1982. The landlord was then, and still is, the Borough Council of Basingstoke and Deane. The original tenant was Chef & Brewer Ltd, to whose interest the present tenant succeeded by assignment. The lease was a long lease. It was for a term of 99 years from a date, November 12 1979, which was just over three years before the date borne by the lease. The lease was expressed to be granted:
In consideration of the expense incurred by the Lessee in the erection of the premises hereinafter mentioned on the plot of land hereby demised and of the rent and covenants on the part of the Lessee hereinafter reserved and contained.
The property demised consisted of a plot of land, of about one-third of an acre in extent, identified on a plan as ‘public house site’, together with the buildings thereon. There were appurtenant rights and exceptions and reservations we need not describe. The rent was payable quarterly in advance, from November 12 1979. The initial rent was £12,251 per annum. This was subject to review, upwards only, at five-year intervals throughout the term of the lease.
The rent review provisions were detailed. Shortly stated, the rent for successive five-yearly periods was to be as agreed in writing by November 11 1984 or successive fifth anniversaries of that date. Failing agreement by such dates the rent for each review period was to be:
the then reasonable current ground rental value of the demised premises which shall be fixed or assessed in accordance with the provisions of subparagraph (vii) of this subclause by an independent valuer.
We need not refer to the provisions in the lease concerning the appointment of the valuer or the conduct of the valuation, save to note that the valuer was to act as an expert and not as an arbitrator. Para (B)(vii) in the first proviso to clause 1 is the crucial provision, and it provided:
The reasonable then current ground rental value shall be the rental value of the demised premises computed on the following basis:–
(a) that the demised premises are available at the date of assessment for letting for a term equal to the unexpired portion of the term hereby granted or a term of twenty years (whichever shall be the greater) with rent reviews at five yearly intervals as herein contained
(b) that the demised premises are a bare site only clear of all buildings but not so as to permit consideration of a claim for a reduced rent or rent free period during the development of the demised premises as might otherwise be reasonably claimed if the premises were in fact clear of all buildings
(c) that there shall be disregarded:–
(i) any effect on rent of the fact that the Lessee has been in occupation of the demised premises
(ii) any goodwill attached to the demised premises by reason of the carrying on thereat of the business of the Lessee
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(iii) any addition to the value of the demised premises attributable to any Justices’ On-licence.
It is on the proper construction of this para (vii) that the case turns. The first review date, November 12 1984, came and went without the parties reaching agreement on the amount of the rent payable for the next five years. Furthermore, the parties were unable to reach agreement on the basis on which the valuer should proceed in making his assessment. On December 13 1985 the landlord commenced these proceedings. The landlord issued an originating summons raising two questions. The first question was whether, when assessing the ‘reasonable then current ground rental value of the demised premises’, the valuer should do so on the basis that the premises were available at the date of assessment for letting on the terms and conditions of a hypothetical lease containing (a) such terms and conditions as the valuer regards as reasonable for a lease of a bare site for development at the relevant date or (b) the same terms and conditions as the original lease. The landlord contended for alternative (a), the tenant for alternative (b). The judge found in favour of the landlord, which meant that the second question then arose: whether the assessment was to be made on the footing that the bare site was available for development (a) only as a public house or (b) for any lawful use. The judge decided in favour of alternative (b), as contended by the landlord.
The evidence before the judge consisted of little more than the lease itself. There was no evidence of any special circumstances surrounding the execution of the lease. The court was left to draw such relevant inferences as it could from the terms of the lease. One of the inferences which the judge drew was that, as recited, the original tenant had built the public house buildings on the landlord’s site, at its own expense, before the lease was granted. Neither party disputed that inference. The judge further inferred, in our view correctly, that while one purpose of this rent review clause was to protect the landlord from inflation, another purpose, shown by the choice of a bare site clear of all buildings as the basis on which the valuer was to proceed, was to protect the tenant who had erected the buildings at its expense. The judge observed, and we agree, that the purpose underlying the choice of this clause appeared to be that the landlord and the tenant should share further increases in the value of the developed site on a fair basis.
In deciding question 1 the judge first rejected a submission made for the tenant that there was a general presumption that a valuer must have regard to the terms of the existing lease unless the lease otherwise requires either expressly or by implication. The judge said he would have been surprised to find any such general presumption, and he did not consider that the authorities to which he was referred supported the tenant’s proposition. The judge then considered the rent review provision in this lease. One factor which weighed heavily with him was that many of the covenants in the lease would be quite inappropriate in the hypothetical lease of a bare site. The covenants in question are some of the tenant’s covenants contained in clause 2. These covenants, in subclauses numbered from (i) to (xxx), were in a form unexceptional in a long lease of a public house. We refer to some of them: to pay rates; to keep the demised premises in good repair, and properly painted at specified intervals; not to erect any other building or make external alterations to the existing buildings without the landlord’s consent; to insure; so long as the requisite licences could be obtained, to use the premises as a public house; to use best endeavours to obtain the grant and renewal of the licences necessary for using the premises as a fully-licensed public house; not to assign or underlet the whole of the demised premises without consent, or to assign or underlet any part of the demised premises; and not to use the demised premises for any purpose other than as a licensed public house with service yard and gardens. Plainly, many of these covenants are inappropriate to a lease of a bare site so long as the site remains in that state. It was argued by the landlord before the judge that, accordingly, these covenants should not be read into the hypothetical lease. The tenant sought to meet this argument by submitting that the covenants were not inappropriate for a bare site let for development, as contemplated in para (vii)(b). The judge expressed his conclusion thus:
. . . I did not find this a satisfactory answer to the landlord’s point. I note in particular that there is no express covenant to build in the existing lease. The result is that, if counsel for the tenant were right, the hypothetical lease would contain a number of covenants which would only be appropriate if there were a covenant to erect buildings, but that vital covenant itself would be absent. Moreover, the parties have expressly told the valuer to value on the hypothesis of a bare site. While most bare sites are let to be built on and some may be let in order to have public houses built on them, and in such cases just those covenants would be appropriate, it is by no means a necessary implication that the parties had this limited class of bare site in mind.
I accept, therefore, that the covenants, taken in the existing lease and looked at as a whole, are not appropriate to a lease of a bare site.
I accept the submission of counsel for the landlord that the covenants and terms, save as to rent, must be imported if at all as a whole, that the court would not impute an intention to the parties to pick and choose and that, unless driven to it by necessity, the court should not impute an intention to the parties to import inappropriate covenants into the hypothetical lease the valuer is required to assess.
The judge further concluded that to leave to the valuer the decision on what terms were reasonable in the lease of bare site was not an improbable intention to attribute to the parties in the case of this long lease. The rent review provision would be required to operate in circumstances which could not be foreseen when the lease was granted. Neighbourhoods change, social habits change, buildings wear out and have to be replaced. He said:
. . . A valuer asked by a client with a bare site in a particular situation, to be let for an identified term with five-yearly rent reviews, will be able to form an opinion and advise his client what the current ground rental value is, and one of the factors he will bear in mind is the sort of covenants which solicitors are then currently insisting on inserting in leases of that sort at that time. Just as he will bear in mind what the current demand for property for development is, the current planning situation is and so on. It does not seem to me to be an improbable intention to attribute to commercial men in the circumstances, having set down the basic groundwork, namely the site value, the term, the rent review clauses and having cleared away possible misunderstandings by eliminating reduced rents and rent-free periods and the other possible doubts by specific ‘disregards’ based on the Landlord and Tenant Act 1954, to say for the rest, ‘We will leave this to the valuer at the time.’ A valuer does not, in my judgment, have to know precisely all the terms on which the bare site will ultimately be let in order to arrive at its ‘reasonable current ground rental value’, though he does have to know broadly what terms are being required to be inserted by potential landlords and potential tenants at the time of the review and will, once these are known, be able to form a view as to what are reasonable terms at the time. His position is I think to be contrasted with the position of the valuer who has to assess a rent of land with buildings on it, who must know exactly what the terms of the lease are and what the state of repair is and the state of performance of the covenants under the lease is, before he can assess that rent.
We pause here to observe that foremost among the provisions in the existing lease which the tenant, The Host Group Ltd, is anxious to have taken into account when the ground rental value of the site is reassessed now and on future rent reviews are those relating to user. A long lease of a site restricted to user as a public house is likely to command a lower rent than the lease of a site whose user is not so restricted. If, in years to come, planning permission were obtained for some more profitable use, on the landlord’s argument the valuer would be entitled and required to value the site as a bare site available for that more profitable use and the tenant would thenceforth have to pay rent assessed on that footing, even though the tenant would not be able to put the property to the more profitable use but would remain restricted by the terms of the lease to using the property as a public house.
The question raised on this appeal is one of construction of a rent review clause in a lease. In answering that question it is axiomatic that what the court is seeking to identify and declare is the intention of the parties to the lease expressed in that clause. Thus, like all points of construction, the meaning of this rent review clause depends upon the particular language used interpreted having regard to the context provided by the whole document and the matrix of the material surrounding circumstances. While recognising, therefore, that the particular language used will always be of paramount importance, it is proper and only sensible, when construing a rent review clause, to have in mind what normally is the commercial purpose of such a clause.
That purpose has been referred to in several recent cases, and is not in doubt. Sir Nicolas-Browne-Wilkinson V-C expressed it in these terms in British Gas Corporation v Universities Superannuation Scheme Ltd [1986] 1 WLR 398, at 401*:
There is really no dispute that the general purpose of a provision for rent review is to enable the landlord to obtain from time to time the market rental which the premises would command if let on the same terms on the open market at the review dates. The purpose is to reflect the changes in the value of money and real increases in the value of the property during a long term.
*Editors note: Also reported at [1986] 1 EGLR 120: (1986) 277 EG 980.
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To the same effect Dillon LJ said in Equity & Law Life Assurance Society plc v Bodfield Ltd [1987] 1 EGLR 124 at p 125:
There is no doubt that the general object of a rent review clause, which provides that the rent cannot be reduced on a review, is to provide the landlord with some measure of relief where, by increases in property values or falls in the real value of money in an inflationary period, a fixed rent has become out of date and unduly favourable to the tenant. The exact measure of relief depends on the true construction of the particular rent review clause.
The means by which rent review clauses afford landlords relief in respect of increases in property values or falls in the value of money is by providing, normally, for a valuer, in default of agreement, to assess the up-to-date rent for the demised premises at successive review dates. In making that assessment the valuer will be achieving the intended purpose of keeping the rent in line with current property values having regard to the current value of money if, but only if, he assesses the up-to-date rent on the same terms (other than as to quantum of rent) as the terms still subsisting between the parties under the actual, existing lease. If he departs from those terms, and assesses the up-to-date rent on the footing of terms materially less onerous to the tenant than those in the actual, existing lease, the rental at which he arrives will reflect, in addition to the rental increases attributable to a rise in property values or a fall in the value of money, an additional element, namely the increased rental attributable to the fact that he is calculating the rent of a lease on terms more favourable to the tenant than the terms in the actual, existing lease. Conversely, if he assesses the up-to-date rent on the basis of terms materially more onerous to the tenant than those in the actual existing lease, the rental figure at which the valuer arrives will not fully reflect the rise in property values or the fall in the value of money since the lease was granted or the rent was last fixed.
Of course rent review clauses may, and often do, require a valuer to make his valuation on a basis which departs in one or more respects from the subsisting terms of the actual existing lease. But if and in so far as a rent review clause does not so require, either expressly or by necessary implication, it seems to us that in general, and subject to a special context indicating otherwise in a particular case, the parties are to be taken as having intended that the notional letting postulated by their rent review clause is to be a letting on the same terms (other than as to quantum of rent) as those still subsisting between the parties in the actual existing lease. The parties are to be taken as having so intended, because that would accord with, and give effect to, the general intention underlying the incorporation by them of a rent review clause into their lease.
We are fortified in this view by observations made in several cases. First, this view accords with comments made in passing in Ponsford v HMS Aerosols Ltd [1979] AC 63. The point now in question was not in issue there, but in the context of a rent review clause that made no express direction for the terms of the existing lease to be taken into account on the review. Viscount Dilhorne (at p 76) described the task of the valuer in these terms:
. . . Surely it is to assess what rent the demised premises would command if let on the terms of the lease and for the period the assessed rent is to cover at the time the assessment falls to be made. (Italics added.)
Likewise Lord Fraser of Tullybelton (at p 83) said that ‘regard must, of course, be had to the terms of the lease’, and Lord Keith of Kinkel (at p 86) made a similar observation.
Next there is the British Gas case. There a rent review clause expressly provided for the notional letting at each review date to be a letting ‘containing the same provisions (other than as to the yearly rent) as are herein contained’. The question arose whether the direction to leave out of account the provision in the actual lease ‘as to the yearly rent’ was apt to exclude from the notional letting the fact that the actual lease contained provisions for future rent review. The Vice-Chancellor held that the direction did not have that effect. Having referred to the general purpose of a rent review provision, as quoted above, he said (at p 401):
. . . Such being the purpose, in the absence of special circumstances it would in my judgment be wayward to impute to the parties an intention that the landlord should get a rent which was additionally inflated by a factor which has no reference either to changes in the value of money or in the value of the property but is referable to a factor which has no existence as between the actual landlord and the actual tenant, ie, the additional rent which could be obtained if there were no provisions for rent review. Of course, the lease may be expressed in words so clear that there is no room for giving effect to such underlying purpose. Again, there may be special surrounding circumstances which indicate that the parties did intend to reach such an unusual bargain. But in the absence of such clear words or surrounding circumstances, in my judgment the lease should be construed so as to give effect to the basic purpose of the rent review clause and not so as to confer on the landlord a windfall benefit which he could never obtain on the market if he were actually letting the premises at the review date, viz, a letting on terms which contain provisions for rent review at a rent appropriate to a letting which did not contain such a provision.
Third, Vinelott J adopted much the same approach in Pearl Assurance plc v Shaw (1984) 274 EG 490*. In a cogent passage, very pertinent to the present case, he said (at p 492):
. . . I think the court should lean against a construction which requires the rent fixed on revision to be ascertained without regard to the use which, under the lease, the tenant is entitled to make of the demised premises, unless, of course, that intention is spelled out in reasonably clear terms. Otherwise, the effect of the review might be to impose on a tenant an obligation to pay a rent appropriate to a very profitable use, but one very obnoxious to the landlord, and one which he had been careful to forbid in the strongest possible terms — the effect, that is, of making the tenant pay for something which he not only has not got, but which he cannot require the landlord to give him.
*Editor’s note: Also reported at [1985] 1 EGLR 92 (p 93).
For the respondent landlord Mr Cullen sought to distinguish the dicta in those cases from the present case. The unusual feature of the present case is that it concerns the review of a ground rent. Counsel’s researches have not brought to light any previous case in which the subject-matter of the review clause was a ground rent. Mr Cullen submitted that in the cases mentioned above the subject-matter of the actual lease and of the hypothetical lease were the same. Here they are not. Here the actual lease is of land with buildings on it, but the hypothetical lease is of a bare site.
We are unable to accept this as a fundamental distinction. The fact that, unusually, the rent being reviewed is a ground rent does not show or even suggest that in this case, where the landlord is to obtain an up-to-date rent for the site, unlike the ordinary case, where the landlord obtains an up-to-date rent for the site plus the buildings, the parties intended that (to adapt the words of the Vice-Chancellor in the British Gas case) the landlord was to get a rent for the site additionally inflated by a factor which has no reference either to changes in the value of money or in the value of the site as demised but which is referable to a factor having no existence as between the actual landlord and the actual tenant: for instance, the additional rent which could be obtained for the site if the actual, existing lease did not contain user restrictions. To update the ground rent the valuer is to disregard the value of the buildings on the site. But we can see no more reason why, in doing so, he should disregard (or, more precisely, the parties can be supposed to have intended that he should disregard) the other subsisting terms of the actual, existing lease in this case than in any other case.
We approach the construction of para (vii), therefore, on the footing that, unless the paragraph otherwise requires, expressly or by necessary implication, or there is some context indicating otherwise, the parties are to be taken to have intended that the notional letting assumed for the purposes of the rent review assessment was to be on the same terms (other than as to quantum of rent) as those still subsisting under the actual, existing lease. In approaching the construction of para (vii) in this way we have to part company from the judge. This was an approach he declined to adopt, although in fairness to him it should be noted that we had the benefit of the citation of some decisions not available to him, such as the British Gas case.
Para (vii)(a) stipulates the length of the term of the notional letting. It also stipulates that the term is to include rent reviews ‘as herein contained’. Para (vii)(b) provides a further assumption: that the demised premises are a bare site clear of all buildings. To this is added a gloss, excluding any rent-free or reduced-rent period during development such as might reasonably be expected if the premises were in fact clear of buildings. Para (vii)(c) provides for three ‘disregards’. There is no express direction that in thus assessing the reasonable current ground rental value the valuer is not to have regard to the other terms of the actual lease. Nor do we think that such a direction can fairly be spelled out as a matter of necessary implication. Quite the contrary: in the case of this lease, with its stringent user covenant, such a direction would be capable of working so unfairly on the tenant, in the manner we have explained, that we find it impossible to suppose that the original parties to the lease could have intended this.
Nor are we persuaded by the contention that none of the covenants|page:150| in the actual lease can be impliedly incorporated in the notional letting because many of the tenant’s covenants are inappropriate to the notional site lease. The essential substance of the direction in para (vii)(b) is that, for the purpose of computing the up-to-date ground rental value of the demised premises, the buildings actually there are to be disregarded. They are to be disregarded for that purpose because they were erected by the original tenant and at its own expense. No ground rental value, in other words, is to be attributable to the presence of the buildings. But although the tenant’s covenants relating to buildings, such as covenants to repair and to insure, would be inappropriate to a simple lease of a bare site, those covenants will or may have some materiality in assessing the up-to-date rental value of the premises demised by this lease (which includes buildings) even though no rental value is being attributed to the buildings themselves. They will or may have materiality in assessing that value, because those covenants impose obligations on the tenant. For this reason it is not inappropriate to carry those covenants into the notional lease, even though the buildings are being excluded therefrom. Para (vii) is concerned with a valuation exercise, and the concept of a notional or hypothetical lease is a tool fashioned to that end. Where the subject of a lease is land and buildings, and the subject-matter of the valuation is the up-to-date rental value of the leased property but excluding the buildings, it is not surprising if the notional lease thus predicated is a somewhat odd-looking creature.
Mr Cullen pointed out that in para (vii) the parties have plucked out of the lease two provisions only, those relating to the length of the term and to rent reviews. They have left unmentioned all the other provisions. He submitted that, in valuing the bare site, the only terms of fundamental importance to a valuer would be the terms relating to period, rent reviews and user. The parties have dealt expressly with two of these fundamental terms. If they had intended that the site should be valued on the basis of restricted user surely they would have said so.
As arguments directed at the presumed intention of the parties we find these arguments of little weight when put in the scales against the contrary argument based on the manifestly unfair result to which the landlord’s case leads.
Mr Cullen further contended that if the notional lease incorporated all the terms of the actual lease, including the covenant restricting user to that of a public house, but hereafter some alternative use is permitted by the landlord, it would not be right for the tenant to have the reviewed rent assessed on the basis of the original permitted user. We agree. If the tenant’s case led to that conclusion this would have been a powerful point, but in our view the construction of the lease contended for by the tenant does not lead to that unattractive conclusion. The notional lease will incorporate all the terms of the original lease, so far as those terms are still then subsisting, and subject always to the modifications spelled out in para (vii)(a), (b) and (c). If the landlord should license an alternative user of the site, thenceforth one of the terms of the actual lease will be the original user clause as amended by that licence, and the rent review will proceed on that footing.
We should mention one further point. The declaration sought by the landlord and made by the judge was that the valuer should assess the up-to-date rental value on the basis that the demised premises were available for letting on the terms and conditions of a hypothetical lease containing ‘such terms and conditions as the valuer regards as reasonable for a lease of a bare site for development current at the relevant date’ and that the site is available for any lawful use. This construction of para (vii) would mean that the valuer’s role would not be confined, as one might have expected, to assessing the value of a property with stated characteristics. His role would extend to choosing some of the characteristics of the property that he was about to value, namely ‘such terms and conditions as the valuer regards as reasonable for a lease of a bare site at the relevant date’. Para (vii) contains no express direction giving such a power to the valuer. So that this power must be found, if at all, in para (vii) as a matter of implication. We can see no justification for reading any such implication into para (vii). Such an implication would require the valuer to step outside the lease actually granted and still subsisting, with its user restrictions and obligations to pay rates and insure and repair, and require him to direct his attention at whatever may, at the relevant review date, be reasonable for a development lease of a bare site. As time passes, the terms of such a lease may become very far removed from the terms of this lease. In our view, if there has to be any implication, and we think there has, the natural (and, indeed, necessary) implication from the terms of para (vii) read as a whole in its context in this lease is that the rental value to be assessed by the valuer is of a notional letting on the same terms (other than as to quantum of rent) as those subsisting between the actual parties to the lease but modified to the extent expressly provided in para (vii)(a), (b) and (c).
Accordingly, we allow this appeal and substitute for the declaration made by the judge one to the effect of the implication we have just mentioned.
The appeal was allowed with costs in the Court of Appeal and below. A declaration to the effect set out in the penultimate paragraph of the judgment of the court was substituted for that made by the judge. Leave to appeal to the House of Lords was refused.
