Landlord and Tenant Act 1954, Part II — Appeal from decision of county court judge holding that he had no jurisdiction to deal on one originating application with applications for new tenancies in respect of two adjoining properties — The two properties were let between the same parties for identical terms of years, had been used for the purpose of a single business (a means of access having been made in the party wall) and were rated as a single hereditament — There were some technical defects in the wording of the tenant’s originating application on Form 335, but it was clear that the application asked for new tenancies of both adjoining premises — County court judge was influenced by the fact that the County Court Rules contained express provisions concerning joinder of actions but not for joinder of ‘matters’, including originating applications — Held by Court of Appeal that there was nothing in the 1954 Act nor in the County Court Rules to prohibit an originating application from containing applications in respect of more than one separate tenant and in cases like the present there would be positive advantages — Despite defects in the form of the application in the present case, the judge had jurisdiction to deal with it — Possibility of applying section 103 of the County Courts Act 1959 in the present case doubted, but no need to express a concluded opinion upon it — Appeal allowed
This was an
appeal by the tenant, Gerald Curtis, from the decision of Judge Honig at
Bloomsbury and Marylebone County Court in favour of the landlords, Galgary
Investments Ltd, on a preliminary issue as to the judge’s jurisdiction to deal
with applications by the tenant for new tenancies of the ground floors and
basements of 3 and 4 Bouverie Place, London W2. The applications in respect of
both premises, occupied by the tenant for business, were included in a single
originating application.
Sir E Ashley
Bramall and D W Van Hee (instructed by Wegg-Prosser & Farmer) appeared on
behalf of the appellant; Miss C Hutton (instructed by Kennedys) represented the
respondents.
Giving
judgment, CUMMING-BRUCE LJ said: This is an appeal against the order of His
Honour Judge Honig when, upon the hearing of a preliminary issue, he declared
that the application dated December 11 1981 is not a valid application under
the provisions of the Landlord and Tenant Act 1954 for the grant of a new lease
of the premises known as the ground floor and basement of 3 Bouverie
Place and ordered that the applicant should pay the respondent’s costs. The
order sought to this court is that the judge’s order should be varied to
declare that the application is a valid application for a new lease of the
premises of 3 Bouverie Place; alternatively, that the applicant has leave to
serve an amended copy of the existing application headed ‘In the matter of the
ground floor and basement of 3 Bouverie Place’ and that that be treated as a
valid application.
First, I
describe the premises. In June 1968 the landlord entered into two leases with
the appellant’s predecessors in title. The parcels of one lease were the ground
floor and basement of 3 Bouverie Place; the parcels of the other lease were the
ground floor and basement of 4 Bouverie Place. The provisions of the two leases
were, for practical purposes, identical. The term in each case was 14 years. On
March 25 1968 in both leases the lessee entered into a covenant in clause 2(4)
to reinstate the premises in each case so as to put them into the condition in
which they were before a door had been constructed enabling access between no 3
and no 4. In both leases there was a covenant that the lessee would only use
the premises for the business purposes of a ladies’ and gents’ hairdresser
business.
At the date of
notice of termination of the leases that user had ceased and the two premises
were used by the lessee for the purpose of running the business of a sauna
bath, and no point arises in these proceedings about that change of user. It
was a user whereby the lessee carried on the business of a sauna bath in the
two adjoining premises, access between the two parts of the premises being
available through the door to which I have referred.
With effect
from May 5 1976 the rating authority rated the ground floor and the basement in
no 3 and no 4 as a single hereditament with a single figure in respect of the
combined premises. That, I think, is sufficient to describe the premises with
which these proceedings are concerned.
I come to the
formal documents. On September 10 1981 the landlord gave notice to the tenant
in the document at p 7 of the bundle giving notice terminating the tenancy of 4
Bouverie Place on March 25. By clause 2 of the notice the tenant was required
within two months after the giving of the notice to notify him in writing
whether or not he would be willing to give up possession of the premises on
that date. By clause 3 the landlord stated that he would oppose an application
under Part II of the Landlord and Tenant Act 1954 for the grant of a new
tenancy on two grounds: (1) that the tenant ought not to be granted a new
tenancy in view of the state of repair of the premises and (2) that, on the
termination of his tenancy, the landlord intended to occupy the premises for
the purposes, or partly for the purposes, of a business to be carried on by him
in them. I observe in passing that, if in the proceedings the landlord succeeds
on the second ground, the Act provides for an entitlement in certain
circumstances for the tenant to claim from the landlord compensation, and the
provisions relating to compensation show that one of the factors which is
relevant to the assessment of compensation is the rateable value of the
premises. On the same day the landlord served on the tenant a second notice in
identical terms but relating to the premises known as the ground floor and
basement of 3 Bouverie Place.
On October 7
the tenant by his solicitors served what is described as a counternotice. It is
entitled ‘Galgary Investments Limited and Gerald Curtis, 3 Bouverie Place and 4
Bouverie Place’ and states that the tenant is unwilling to yield up the
premises and is going to make an application under the 1954 Act in respect of
both properties. It states that that application will be for a grant of two new
leases for a term of 14 years from March 25 1982.
On December 11
1981 the tenant purported to apply to the court by originating application for
a grant of a new tenancy. The title of the application was simply ‘Gerald
Curtis and Galgary Investments Limited’, the names of the tenant and the
landlord. The title did not include, as it should have done, any reference to
the matters in respect of which the application was made. By clause 1 of the
application the tenant applied to the court for the grant of a new tenancy
pursuant to Part II of the Landlord and Tenant Act. In clause 2 the first words
were: ‘The following are the particulars of my current tenancy of the premises’
— words lifted verbatim from Form 335 of the County Court Forms which, under
the rules, is the form appropriate to the application. Clause 2 having lifted those
words from the form proceeded as follows: ‘(a) the premises are situated on the
ground floor shop and basement of 3 Bouverie Place and on the ground floor and
shop and basement of 4 Bouverie Place and are used as single trade premises’.
By clause 2(b) the applicant set out the two leases, one relating to no 3 and
one relating to no 4 with the appropriate particulars. Clause 4 described the
two notices served by the landlord and referred to the counternotice that the
tenant’s solicitors had served. Clause 4 referred to the opposition of the
landlord and in clause 7 the tenant stated that he carried out the business of
providing sauna bath facilities in both 3 and 4 Bouverie Place which he uses as
a single business unit. By clause 9 in terms he proposes that he should be
granted two new tenancies: a new tenancy of the ground floor and basement of no
3 and a new tenancy of the ground floor and basement of no 4. He states the
combined rateable value, which is a relevant matter to be stated and because
the jurisdiction of the courts depends upon the rateable value of the premises.
Having regard to the relevant rateable value of these two premises rated as one
unit it was the county court that had jurisdiction. Had the rateable value been
above a certain limit the jurisdiction would have been vested in the High
Court.
So, on reading
that application, although it starts infelicitously with an application for a
grant of a new tenancy, it is perfectly plain that, when the whole document is
considered, it unambiguously refers to the two premises, the subject of the two
leases, and unambiguously seeks to apply for the grant of two leases, one
relating to no 3 and one relating to no 4.
The
application was presented to the county court and, in accordance with county court
practice, the county court filled in a little document which was entitled ‘An
application for a new tenancy pursuant to Part II of the Landlord and Tenant
Act 1954 and in the matter of the ground floor and shop and basement 4 Bouverie
Place, London, W2’ and gives notice that the matter would be heard in the
Marylebone and Bloomsbury County Court on a date to be fixed, and it enclosed a
sealed copy of the tenant’s originating application.
Had the clerk
in the county court read the application presented by the tenant and given it a
moment’s thought, he would have appreciated that it was wrong to regard it as
an application only in the matter of the ground floor, shop and basement at 4
Bouverie Place, because it is perfectly plain that the application is in two
matters: in the matter of the premises of no 3 and in the matter of the
premises of no 4. The application in terms was seeking the grant not of one new
tenancy but of two new tenancies, one relating to no 3 and one relating to no
4. However, that was the document that the county court brought into existence
when they sent a sealed copy of the tenant’s originating application to the
landlord.
The landlord,
having decided to challenge the jurisdiction of the county court to deal with
two matters as requested by the tenant pursuant to one originating application,
agreed with the opposite party for the hearing of a preliminary issue in the
county court on that point, and that preliminary issue came before the learned
judge on March 3. We have the advantage of a brief note of the judge’s reasons
when he decided that the court on that originating application had jurisdiction
to entertain the tenant’s application in respect of the matter being the
application for a grant of a new tenancy of the ground floor and basement of no
4 but had no jurisdiction on that application to entertain the tenant’s
purported application made in the same originating application for a grant of a
new tenancy of the ground floor and basement of no 3. The judge explained his
reasons. He said:
The way that
it is put on behalf of the respondent is that the applicant’s solicitors made
one single application in respect of those premises and referred to both leases
and set out proposals for the grant of two leases. The respondent says that you
cannot make one application in respect of two separate premises and reference
was made to sections 24 and 29 of the Landlord and Tenant Act 1954 and various
county court rules. It seems to me that, on the wording of section 24 and
section 29, it is quite clear that the Act contemplates that an application
should be made in respect of one set of premises and only one set of premises.
I am not impressed by the argument that the singular includes the plural.
Therefore, an application must be made only in respect of one set of premises.
Then the
learned judge went on to deal with another argument that had been presented to
him:
It is also
submitted that there is nothing to prevent the court from treating this
application as an example of joinder of causes of action which is permitted by
the county court rules. But, firstly, this is not an action and the rules are
clear that joinder is not allowed where possession is claimed of separate
parcels of land. Secondly, the 1954 Act is a very special statute laying down
an extensive code of the way in which this machinery is to be operated. It
seems to me that there must be one application in respect of each set of
premises. It so happens that these are two adjacent premises but you could have
one set of premises in
the rent and other clauses in the lease may be the same. Would anyone suggest
that you could bring one application in respect of those two sets of premises? This shows the absurdity of the submission.
So he made the
order to which I have referred.
The judge
founded himself, firstly, upon his view of the construction and effect of
section 24 and section 29 of the 1954 Act to which I come, and I begin by
referring to section 23 of Part II of the Act which describes the tenancies to
which Part II applies:
. . . this
Part of this Act applies to any tenancy where the property comprised in the
tenancy is or includes premises which are occupied by the tenant and are so
occupied for the purposes of a business carried on by him or for those and
other purposes.
By subsection
(3) of section 23:
In the
following provisions of this Part of this Act the expression ‘the holding’, in
relation to a tenancy to which this part of this Act applies, means the
property comprised in the tenancy, there being excluded any part thereof which
is occupied neither by the tenant nor by a person employed by the tenant and so
employed for the purposes of a business by reason of which the tenancy is one
to which this Part of this Act applies.
When one comes
to section 24, that provides by subsection (1) as follows:
A tenancy to
which this Part of this Act applies shall not come to an end unless terminated
in accordance with the provisions of this Part of this Act; and, subject to the
provisions of section 29 of this Act, the tenant under such a tenancy may apply
to the court for a new tenancy — (a) if the landlord has given notice under
section 25 of this Act to terminate the tenancy, or (b) if the tenant has made
a request for a new tenancy in accordance with section 26 of this Act.
On the facts
of the instant application it came within subsection (1) because the landlords
had given notice under section 25 of the Act to terminate both tenancies. So at
that point I observe that section 24 is silent as to the procedure whereby a
tenant may seek the grant of a new tenancy subject only to the reference to the
provisions of section 29 of the Act.
One turns to
section 29, which has the heading ‘Order by court for grant of a new tenancy’.
By subsection (1):
Subject to
the provisions of this Act, on an application under subsection (1) of section
24 of this Act for a new tenancy the court shall make an order for the grant of
a tenancy comprising such property, at such rent and on such other terms, as
are hereinafter provided.
Subsections (2)
and (3) deal with when the notice to be given by the landlord should be given
and the time period that applies.
Again, one
observes that in section 29, which deals with the powers of the court to make
an order for the grant of a new tenancy, the section is silent as to the
characteristics of a valid application or with the procedure to be pursued save
in so far as it is prescribed by subsections (2) and (3). So, when one looks at
the Act itself, there is nothing in section 24 or in section 29 which prohibits
or precludes the court from proceeding to make orders for the grant of new
tenancies upon a single application to that end.
Thus, one has
to turn to the County Court Rules, which in terms provide the county court
procedure to govern applications by tenants for the security of tenure for
business tenants under Part II of the Act of 1954, thereby supplementing the
general rules with the County Court Rules. One comes to Part III of Order 40.
Part I of the order dealt with compensation for improvements of business
premises. Part II prescribed the procedure where a residential tenant seeks
security of tenure and Part III prescribed the procedure where a business
tenant sought security of tenure. By rule 8(1): ‘An application for a new
tenancy under section 24 . . . shall be made by originating application in Form
335.’
So one turns
to Form 335, which is entitled ‘Originating Application for a New Tenancy under
Part II of the Landlord and Tenant Act 1954.’
It refers to the order and the general title is to be in Form 1 of the
County Court Forms. When one turns to Form 1 of the County Court Forms, that
part of the form which deals with matters as compared with actions prescribes
as follows: the title shall be in the appropriate county court with the number
of the matter and then ‘In the matter of’ and the words in brackets prescribed
‘Here state the title of any Act, other than the County Courts Act 1959, by
which the Court is given power to entertain the proceedings.’ So this originating application had to comply
with that in so far as it was entitled ‘In the matter of the Landlord and Tenant
Act 1954.’ But the title must continue
‘and in the matter of’ and the words in brackets are ‘here refer to the trust,
settlement or other particular matter in respect of which the proceedings are
brought’. Then there is to be a statement of the title and the names of the
parties to the proceeding.
The
originating application submitted by the tenant failed in terms to state a
title referring to the matters in respect of which the proceedings were brought
and that was a defect. The form states by clause 1 ‘I’ and the name of the
tenant ‘apply to the court for the grant of a new tenancy pursuant to Part II
of the Landlord and Tenant Act 1954’. The draftsman of the appellant’s
originating application unfortunately simply copied from the form those words
without taking the amendatory step of adjusting clause 1 of the form to the
matters with which his originating application dealt. So there was a defect in
clause 1 of the originating application as it purported to apply for the grant
of a new tenancy.
Clause 2 of
the form reads: ‘The following are the particulars of my current tenancy of the
premises:–‘ and then the tenant has to put in (a) the address of the premises,
(b) the date of the lease, (c) the names of the parties to the lease or
agreement, and various other particulars which appear in the form, including
the nature of the business carried on by the tenant in the premises and the
rateable value of the premises. The draftsman of the appellant’s originating
application once more was indifferent to the necessity of adjusting the
particulars that the tenant had to give to the particular originating
application which the tenant was making. He simply copied out the words from
the form ‘The following are the particulars of my current tenancy of the
premises’ and, as soon as you look at those particulars which followed the
order prescribed by the form, you find that the premises were premises in no 3
and premises in no 4. In (b), where the date of the lease has to be stated, the
originating application sets out perfectly clearly the particulars first of the
lease relating to no 3 and then of the lease referring to no 4.
There are
other failures to adjust the form to the application in fact being made because
in a number of paragraphs the draftsman continues to refer to the grant of a
new tenancy, although it is perfectly plain on the most superficial reading of
the originating application that he does refer to premises in no 3 and no 4
which were the subject of two identical leases determining on the same day, and
that the grant the order sought from the court is a grant of two new leases as
clause 9 of the originating application states in terms. It is obvious that
what has happened is that the draftsman of the appellant’s originating
application looked at Form 335 and did not take enough trouble in the
originating application that he was drafting to adjust it so as to make quite
plain throughout that it was a grant of two tenancies of no 3 and no 4 with
which the application was concerned, which should have been put in the title,
and the reference to a grant of a new tenancy should in a number of paragraphs
be stated to be grants for new tenancies.
But, having
said that, I have no hesitation in holding that, when the whole of the
originating application is read, there is not any room for any doubt at all
about what the application is for and, indeed, Miss Hutton has not submitted to
the contrary and very properly opened her submissions in this court on behalf
of the respondent by disclaiming any suggestion that the respondent had any
merits in the sense that it was not submitted that there was any prejudice
which had been sustained by the landlord by misunderstanding the meaning of the
originating application sent on to him by the county court. Miss Hutton was
clearly right to make that disclaimer and equally right to submit that it was
irrelevant because what the landlord submitted to the county court and was
submitting in this court was a matter of law that, on this originating
application, the county court had no jurisdiction to make an order in respect
of anything except in respect of one tenancy.
In relation to
the various ways in which the tenant’s originating application failed to
correspond with appropriate particularity with the prescribed form to be found
in Form 335 of the County Court Forms the case of Williams v Hillcroft
Garage Ltd (1971) 22 P & CR 402 is in point. In those proceedings,
which were also concerned with Part II of the Landlord and Tenant Act, this
court held that defects in an application — defective because in certain
respects the originating application did not exactly follow the prescription in
Form 335 — did not have the effect of rendering the originating application a
nullity; and it was observed in the judgments of this court that it would be
strange if, though everything relevant to the application was to be found in
the originating application, yet the court should have no jurisdiction. In my
view, with respect as we are differing from the learned judge, it would be
strange if, in relation to
the disposal of the matters in issue, which had all the information required by
Form 335, which made it perfectly plain from clause 9 of the application that
what was being sought from the court was the grant of two leases, one in
respect of the premises at no 3 and one in respect of the premises at no 4,
both of which were used for the purposes of the same business, none the less
the defects in the form should have the effect of preventing the county court from
having jurisdiction to entertain the two applications.
There being
nothing in the Act to prohibit an application for two new tenancies in one
application, the next question is: is there anything in the rules which
prohibit making two applications under cover of a single originating
application? I am unable to find
anything express on the face of the County Court Rules which has that effect.
But the learned judge took the view that, when the rules were considered in the
context of the Act in which the procedure was prescribed, there was no reason
for construing the singular in the County Court Rules, Order 40 rule 8, as
including the plural; and the learned judge was moved to that conclusion by
consideration of the factors that he described in the second paragraph of the
brief note of his judgment.
Whatever might
be the situation in other cases — as to which I say nothing — there seems to me
no possible inconvenience to the landlord or to the court if this originating
application is treated, as on its face by clause 9 it seeks to do, as bringing
to the court applications for grants of new tenancies, one relating to no 3 and
one relating to no 4. On the contrary, I can see that there may be positive
advantages in the court dealing with both of these applications at the same
hearing.
Two
considerations move me to that thought. The first ground of the landlord’s
opposition to the grant of either of the new tenancies was a failure of the
tenant to comply with his obligations under the repairing leases. But the landlord
himself, in support of that allegation, has filed in court a schedule of
dilapidations purporting to describe the tenant’s failures to repair and,
though parts of that schedule of dilapidations do identify want of repair
specifically in no 3 or specifically in no 4, a great number of them are not
identified as relating to one set of parcels as compared with the other set of
parcels. So that the landlord, when presenting the description of his case in
so far as it was founded on want of repair, himself by this document appeared
to be treating, as was the reality of the situation, the two premises as a
single hereditament.
Secondly, if
the landlord succeeds in the proceedings on the second ground that he relies
upon, the tenant may well be entitled to claim compensation and, if he does,
the compensation is by statute or the rules to be related to the rateable
value. Since 1976 there has only been one rateable value: the rateable value
described as relating to no 3/ no 4 Bouverie Place. So, if in the proceedings
it turns out that the judge has to assess on the compensation in favour of the
tenant, at first sight it seems as a matter of commonsense that the sensible
thing to do is to assess compensation in one sum in respect of the two
premises, and the landlord’s schedule of dilapidations rather suggests that
that is the way that the landlord expected the court to proceed.
Of course, if
there had been two originating applications, it would have been open to the
court, or might have been open to the court, to make an order that the two
should be heard together or that one should immediately follow the other or
something of that sort in the way that courts do in order to dispose
economically of the business where there are common issues. The question is whether
the Act and the rules, properly construed, force the court to conclude that the
Act and rules either prohibit the inclusion of two matters in one originating
application under Order 40, rule 8 or, alternatively, in the absence of
prohibition, whether it is clear as a matter of construction that, where
subrule (1) of rule 8 provides for an application for a new tenancy to be made
by originating application, there is a clear intention that only one matter may
be included in the originating application. That was the view of the judge.
With respect
to him, I cannot accept his view. There is no prohibition either in the Act or
the rules and I am unable to discern on my scrutiny of the proceedings any
reason for thinking that the draftsman was expressing an intention in subrule
(1) to restrict the subject-matter of an originating application to a single
matter as compared with more than one matter.
The judge
stated that he was influenced by the consideration of the rules relating to
joinder. The judge observed that in the county court rules there is an express
rule, Order 4, dealing with joinder of causes of action and he rightly
observed, if I may respectfully say so, that clearly, on its face, that order
only relates to actions and does not relate to matters which, by Order 6 of the
county court rules, are distinguished from actions. (See Part I of Order 6,
rule 1 and what follows and compare Part II of Order 6, rule 4 and what
follows.) The draftsman of the county
court rules has clearly distinguished by Order 6 the proceedings in actions
from other proceedings because by rule 4 headed ‘Matters’:
Any
proceedings authorised to be commenced in a county court, and not required by
any Act or Rule to be commenced otherwise, may be commenced by originating
application.
The matter does
not quite rest there because, by Order 40, these applications under the
Landlord and Tenant Act are to be made by originating application. So the
draftsman quite clearly saw the distinction between actions and matters and the
judge was clearly right in holding that Order 4 related only to actions. What
is the result of that?
The submission
on behalf of the respondent is that, as there is an express rule in Order 4
dealing with joinder of causes of action and nothing expressly to be found
about joinder of matters, there is no power in the court to join in one
proceeding two or more matters and that, it is submitted, is the direct
inference from the fact that the rules are silent. I am unable to accept that
submission. When one looks at Order 4 one finds that it provides in rule 1 for
an express power for a plaintiff to unite in the same action several causes of
action, but by rule 2 it is provided that certain kinds of causes of action
shall not be joined save with leave of the court:
1(a) Claims by a trustee in bankruptcy . . . shall
not be joined with any claim by him in any other capacity; (b) no cause of
action shall be joined with an action of replevin; (c) no causes of action
shall be joined with an action for the recovery of land except claims for mesne
profits . . .
The judge was
influenced, evidently, by the fact that there is the express provision in Order
4 rule 2(c) to prevent cause of action for recovery of land being joined except
with leave.
But, where the
draftsman has contemplated and prescribed one set of procedures for actions and
distinguishes that procedure from procedure relating to matters, I am unable to
infer from the absence of a rule expressly providing or expressly prohibiting
joinder of matters commenced by originating application as leading to the
inference that the rule-making authority decided merely by silence to prohibit
all joinder of matters. My conclusion is not that there is a lacuna in the
rules but that the County Court Rules dealing with matters and, in particular,
originating applications leave it open to the applicant whether to join in one
originating application more than one matter and, if commonsense and
convenience points clearly, as it does on the facts of this case, to joining
two matters in the same originating application, I am not prepared to infer
from the silence of the rules any prohibition to do what appears to be a
sensible and convenient process.
For those
reasons I would respectfully disagree with the view of the judge and hold that
this originating application, though in certain respects defective, did not
deprive the judge of jurisdiction to entertain the two applications sought by
clause 9 of the originating application and, in so far as the originating
application needs to be amended in order to bring it sufficiently within the
compass of this kind of application prescribed in the Form 335, I would hold
that those are all matters that can be dealt with on amendment in so far as the
amendments can be made without injustice to the opposite party. I have been
unable for the moment to detect any amendment which would, on this single
originating application, cause any injustice or prejudice to the opposite
party. But those matters of amendment will be matters for the county court which
exercises the jurisdiction.
All that this
court is concerned with is the preliminary issue as to whether there was
jurisdiction on this originating application to entertain the application for a
new tenancy for no 3 as well as no 4.
For those
reasons I would allow the appeal and grant the declaration sought by the
appellant. I would only add this. In this court we have had interesting and
protracted submissions on the question whether, if there was a lacuna in the
County Court Rules, the lacuna would be filled by exercising the power to be
found in section 103 of the County Courts Act 1959 so as to import into the
County Court Rules the relevant power to be found in the High Court, where the
High Court has, by rule, an express power to join
does not, on the view that I firmly take of the appeal, become necessary to
decide that, but I think it is right, as it was argued, to say this. If I
thought it necessary to reach that stage of the discussion, I would find it
very difficult to accept that section 103 could be invoked in the way in which
the appellant sought, and there are authorities which, to my mind, point in the
opposite direction. It is, however, unnecessary for me to decide that now.
Agreeing, SIR
DENYS BUCKLEY said: This seems to me to be an example of the sort of case in
which it would be convenient that applications for new tenancies in respect of
more than one property should be capable of being joined in one set of proceedings
before the court. In the present case, just to recapitulate, the circumstances
which I think makes this case a good example are that the two properties in
respect of which the tenant is anxious to obtain grants of new leases are
immediately adjoining properties, the first floor and basement of no 3 Bouverie
Place and the first floor and basement of no 4 Bouverie Place. They are let
under leases between the same parties for identical terms of years and on
identical terms and conditions mutatis mutandis — or, as I once heard a
member of the Bar say in this court, ‘mut mut’, a practice not to be
encouraged. They are used for the purposes of one single business by the
defendants, intervening means of access having been provided in the party wall.
They are rated as a single hereditament and, by way of good measure, both
properties enjoy as an appurtenant one right of way.
As my Lord has
pointed out, it is perfectly plain from the terms of the document served by the
tenant applying for new tenancies that what he is seeking is a grant of a new
tenancy in respect of each of the two properties, and in his application he has
set out in respect of each of those properties in distinct terms the necessary
particulars and proposals which relate to that property. It is quite clear, in
my view, that the tenant was applying in one application for the grant of two
tenancies of two distinct properties, and I think that the difficulty which has
arisen and which has, in my judgment, led the learned judge into error is that
he has failed to distinguish in his mind the difference between an application
for a new tenancy, which must undoubtedly be made in respect of one
hereditament, and an application for more than one new tenancy in respect of
more than one hereditament.
I think the
learned judge is right in his view that an application for a new tenancy of a
particular hereditament must relate to a hereditament which is held or has been
held under one lease. But the question is not whether you can ask for a new
lease of more than one leasehold property but whether you can combine more than
one application for a new lease, each such application relating to a particular
leasehold property, in one proceeding before the court. That must depend upon
the terms of the statute and on the rules, and I do not propose to go through
the argument again in detail, for it has been covered very fully in the
judgment delivered by my lord.
But it is to
me clear that nothing can be found in either section 24 or section 29 of the
Landlord and Tenant Act 1954 which prohibits the inclusion of applications for
a new tenancy for more than one distinct property in one proceeding. If the
tenant combines two such applications in the one proceeding he must set out in
his claim in respect of each of the relevant properties all the particulars and
proposals which are indicated in Form 335. Provided he does so, there is, in my
judgment, nothing whatever to be found in section 24 or section 29 which says
that the tenant cannot include more than one such application in one set of
proceedings. Nor do I find anything in the rules which so require.
So, in my
judgment, where it is convenient so to do, it is perfectly proper for a tenant
to apply for two or more new leases in one application, provided he frames his application
in such a way as to set forth all the necessary particulars and proposals
clearly in respect of each of the component parts of the application.
I am in full
agreement with everything that my lord has said and I do not think that it
would be serviceable for me to attempt to say anything further. I agree with
the result that my lord has suggested.
The appeal
was allowed with costs in the Court of Appeal and below. A declaration was
granted to the effect that the tenant’s application was a valid application for
new leases of the premises consisting of ground-floor shops and basements of
both 3 and 4 Bouverie Place. Leave to appeal to the House of Lords was refused.
