Plaintiffs granting licence of premises to second defendant – Licence expiring – First defendant thereafter managing and paying for occupation of premises – Plaintiffs seeking possession and damages for unlawful occupation – Whether first or second defendant occupying premises when licence terminated – Judge finding second defendant in occupation at material time – Appeal allowed
In 1974 the first plaintiff, City, acquired land known as Jennings Yard, Windsor, Berkshire (the premises), and, after planning permission was obtained, allowed its use as a car park and café managed by the second defendant, B. A written agreement between City and B envisaged a 50% sharing of net takings. After October 1989 B excluded fees obtained for excess parking and clamping from the total of the net takings. On August 1 1992 B entered into an agreement with the first defendant, BCP, for BCP to run the car park. In October 1992 City licensed Regalia to manage the car park and Regalia gave B permission to sublicence the management. Subsequently, Regalia granted B a 12-month licence from November 1 1992 to October 31 1993 at a cost of 70% of the net takings less VAT. On July 14 1993 there was a meeting between representatives of City, Regalia, BCP and B, at which B made a presentation in writing supporting BCP’s application for a licence of the premises after October 31 1993. However, a dispute arose as to what was actually agreed. In a letter to the plaintiffs on BCP notepaper, B claimed it had been agreed that the licence fee would be reduced to 60% of the net takings, that Regalia would contribute 50% towards improving the car park and that the licence period would be extended to three years. A draft licence was enclosed showing BCP as the licensee. Subsequently, City’s solicitors sent BCP a draft lease in which BCP was to be a tenant for three years. However, the lease was not completed. After November 1 1993, when the written licence agreement had expired, BCP continued to manage the car park and pay for occupancy. On November 29 1994 Regalia agreed with BCP to share the cost of resurfacing and maintenance work carried out at the premises. On November 15 1995 the plaintiffs served notice on B as licensee, terminating the licence agreement. They subsequently brought proceedings against the defendants claiming possession and damages for unlawful occupation. The judge found that B was the occupier at the time of the plaintiffs’ notice terminating the licence agreement on the basis that previous arrangements between B and the plaintiffs had continued. He concluded that the plaintiffs were entitled to possession and that the defendants were to pay damages in respect of unlawful occupation on a restitutionary basis. B appealed, contending that there was insufficient evidence for the judge’s conclusion that he was the occupier of the site after October 31 1993, since a new agreement had been reached between the plaintiffs and BCP that had taken effect on November 1 1993.
Held The appeal was allowed.
There was clear evidence that the plaintiffs should have regarded BCP as not only the occupier but also the person liable to pay for the occupation. Although B had made the presentations for further occupation after October 31 1993, they had been on behalf of BCP for future occupation by BCP. The drafts of formal documents had showed BCP as the occupier and that the fees had been paid by BCP. The agreement to carry out works showed BCP as paying half the costs and BCP had confirmed its status as occupier to the district valuer and Customs & Excise. If the plaintiffs had at any time wanted to confirm that BCP was not in occupation and liable under the licence, they had had ample opportunity to do so. However, it had not been until the plaintiffs had served notice on B determining the licence that they had sought to claim that B was continuing as licensee. Therefore, BCP, not B, was the occupier of the premises under a consensual licence from Regalia.
Mark Warwick (instructed by Barker Gillette) appeared for the plaintiffs; Mark Blackett-Ord (instructed by Philip Ross & Co) appeared for the second defendant; the first defendant did not appear and was not represented.
Thomas Elliott, barrister
