Landlord and Tenant Act 1954, Part II–Whether tenant’s application for new tenancy was out of time by virtue of section 29(3)–‘Not less than two nor more than four months after the giving of the landlord’s notice under section 25’–Point of general interest beyond its application to 1954 Act–Landlord’s section 25 notice served on September 30, tenant’s application made on the following January 31–Difference of opinion in Court of Appeal–Bridge LJ in the minority considered with ‘no doubt or hesitation’ that it was ‘abundantly clear’ that the application was in time–Stephenson and Templeman LJJ held that it was out of time, upholding decision of county court judge–Interesting discussion of the ‘corresponding date principle’ and the effect of months being of different lengths–In present case the four months held to expire at midnight on January 30–Appeal from county court judge dismissed but leave given to appeal to House of Lords
This was an
appeal by Robert William Dodds, the tenant of business premises at 34 George
Street, Grantham, Lincolnshire, from a decision of Judge Whitehead, at Grantham
County Court, dismissing his application for a new tenancy on the ground that
the application was out of time. The landlord, the respondent in the application
to the County Court and in the present appeal, was Kenneth Edward Walker.
M Thorpe
(instructed by Norton & Hamilton, of Grantham) appeared on behalf of the
appellant; J Guthrie (instructed by Roythorne & Co, of Spalding)
represented the respondent.
Giving the
first judgment at the invitation of Stephenson LJ, BRIDGE LJ said: The
appellant is the tenant of premises known as 34 George Street, Grantham,
Lincolnshire. I shall refer to him in this judgment as the tenant. He holds a
business tenancy of those premises to which Part II of the Landlord and Tenant
Act 1954 applies.
In September
1978 the respondent, to whom I shall refer as the landlord, gave notice under
section 25 of the Act to determine the tenancy on March 31 1979. That notice
was dated September 29 but was served on September 30. On November 29 1978 the
tenant duly gave counternotice pursuant to section 29(2) of the Act, intimating
that he would not be willing to give up possession of the premises on the
expiry date mentioned in the landlord’s notice.
On January 31
1979 the tenant made his application pursuant to section 24 of the Act to the
Grantham County Court for the grant of a new tenancy. On February 21 1979 the
landlord applied to dismiss the tenant’s application for a new tenancy on the
ground that it had been made out of time under section 29(3). That application
was heard by the learned registrar on March 23 1979. He acceded to it and
dismissed the tenant’s application as one which the court had no jurisdiction
to entertain. The tenant appealed from the registrar’s order to the judge. On
April 27 His Honour Judge Whitehead heard that appeal and dismissed it. The
tenant now appeals from the judge’s order, to this court.
I turn at once
to the relevant statutory provision, section 29(3) of the Landlord and Tenant
Act 1954, which provides as follows, as far as relevant:
No
application under subsection (1) of section twenty-four of this Act shall be
entertained unless it is made not less than two nor more than four months after
the giving of the landlord’s notice under section twenty-five of this Act. . .
.
Reading that
section, as we must, in the light of the Interpretation Act, the period of four
months referred to is a period of four calendar months. Accordingly the
question for decision is this; when a landlord’s notice to determine a tenancy
under section 25 of the Act is served on September 30 in any year, when does
the four-month period after the giving of that notice, within which the tenant
is allowed to apply for a new tenancy, expire?
The landlord contends, and the registrar and the learned judge have
found, that it expires on January 30. The tenant contends that it expires on
January 31, the day when he made his application. It is perhaps not
inappropriate that we should be called upon to decide such a point on February
29 in a leap year. There is no direct authority on the point, so it falls to be
decided, it seems to me, as one of principle on the proper application to the
facts of this case of the provisions of section 29(3) as correctly construed.
In calculating
the period of four months, to which the subsection refers, no difficulty
whatever arises whenever the landlord’s notice in any month is given on any day
in the month from the 1st to the 27th. It is quite clear on authority that in
any such case the four-month period will then expire on the corresponding date
in the fourth succeeding month to the date on which the landlord’s notice was
served. A calculation made on that basis I will refer to for convenience as a
calculation applying the corresponding date principle.
A moment’s
reflection is sufficient to demonstrate that the corresponding date principle
cannot be of universal application. That is most clearly demonstrated by the
illustration of a landlord’s notice under section 25 which is served in a
non-leap year on either October 29, 30 or 31. In each of those cases the period
of four months after the giving of the notice necessarily expires on February
28 because the month of February in a non-leap year has no 29th, 30th or 31st
and to extend the period beyond the last day of February would be to extend it
beyond the fourth and into the fifth month after the giving of the landlord’s
notice. So far what I have said is supported by authority and I need only refer
to the case of Migotti v Colvill (1879) 4 CPD 233. That was a
case where the question in issue was the question on what date a term of one
month’s imprisonment expired when sentence had been passed on October 31. It
was common ground in that case that the first day of the sentence of the
calendar month was to be reckoned as the day on which sentence was passed and
the prisoner was taken in custody from the court to the prison. The court held,
contrary to the contention on behalf of the prisoner, that the period of one
calendar month expired
at p 238:
Prisoners
cannot always be imprisoned during one particular calendar month, in the sense
of a month the name of which is to be found in the calendar. What then is the
meaning of the term when the sentence begins otherwise than at the first day of
a calendar month?
(ie for the
purpose of that case, namely, on October 31.)
Cotton LJ
continues:
Although
there are difficulties, I am of the opinion that the right rule is that which
has been laid down by Denman, J
(who, I
interpose, was the judge at first instance)
and the other
members of this court. The imprisonment ends at 12 o’clock on the day
immediately preceding the day in the following month corresponding to the day
on which the imprisonment began.
Again,
interposing my own observation, there is what I have called the ‘corresponding
date principle’ being applied; but his Lordship continues:
If there are
not enough days in the second month to satisfy this rule the calculation is
made in favour of the prisoner, and be will be liberated on the last day of the
month.
So if a
prisoner had been imprisoned on January 29, 30 or 31 for one calendar month, he
would be released on February 28. The corresponding date principle could not
apply.
The question
we have to consider is the converse of that case. What happens when notice is
given on the last day of a short month, here September 30, and the period of
four months after the giving of that notice has to be calculated? Does it take one to the 30th day of the
fourth succeeding month, or does it take one to the 31st? Exactly the same question would, of course,
arise in relation to a notice served on February 28. Would the period of four
months expire on June 28, or on June 30?
The key to the
solution of this problem, to my mind, lies in the principle for which there is
abundant authority, that in calculating the period of four months after the
giving of a notice under section 25 of the Act of 1954, for the purposes of
section 29(3), one must disregard in the computation the day of service of the
notice and commence to calculate the running of the four-month period from the
day after the giving of the notice; in this case, therefore, October 1. That
principle, and its application to section 29(3) of the Act of 1954, is not in
issue, but, if authority were required for it, it is sufficient to cite
paragraph 168 of volume 37 of the third edition of Halsbury’s Laws of
England, which is headed ‘Exclusion of first day,’ and reads:
The general
rule in cases in which a period is fixed within which a person must act or take
the consequences is that the day of the act or event from which the period runs
should not be counted against him.
We have been
taken through a number of cases cited in the footnote to that proposition which
clearly demonstrate that it is well founded.
Accordingly
the question we have to decide, restated, in my judgment, becomes this: when
does a period of four calendar months beginning on the first day of October
expire? In my judgment the answer to
that question must be on January 31, for the simple reason that the four
calendar months, and the only four calendar months, which come into the
computation, are the actual and entire months of October, November, December
and January, and I can see no reason whatsoever why the period of four months
should expire before the expiry of the fourth of those months, namely on
January 31.
We have been
referred to a number of authorities. None of them, as I have said, is directly
in point, but possibly one throws some light on the matter. That is the case of
Webb v Fairmaner (1838) 3 M & W 473. In that case, goods had
been sold on October 5, to be paid for in two months, but the seller issued his
writ claiming the price from the buyer on December 5. It was held that his
action was premature because it could not properly be commenced until the
expiration of December 5, in other words, disregarding the day on which the
goods were sold as a day not to be computed, in the period of two months
allowed to the buyer for payment. In its decision this is no more than yet
another illustration of the application of the corresponding date principle to
a case where a calendar month has to be measured as between two broken months,
but in my judgment it is not without significance to find Parke B observing, at
p 476:
Whatever
doubt there might have been upon the point before the decision in Lester
v Garland (1808) 15 Ves 248, since that case the rule appears to be that
the time is to be calculated exclusively of the day on which the contract was
made: the party is to have two entire calendar months in which to make payment,
exclusively of the day of sale.
Applying that
statement of principle to the circumstances of a case arising under section
29(3) of the Act of 1954, I would say that a party is to have four entire
calendar months in which to make application for the grant of a new tenancy,
exclusive of the day on which the landlord’s notice under section 25 was served
upon him.
An authority,
which is said to be an authority the other way, is relied on by Mr Guthrie, for
the landlord. It is the case of Freeman v Reid (1863) 4 B & S
174, where an action of a particular kind was one of which one month’s notice
had to be given. Notice of the action was, in fact, given to the proposed
defendant on April 28 1862 and the action was commenced on May 29 following,
and it was there held that notice of action was given in due time; again an
illustration of the application of the corresponding date principle. But the
passage relied upon in argument by Mr Guthrie is a passage from the judgment of
Coburn C J at p 184 of the report, where he said:
In a case
like the present where the months are broken . . .
(and I pause
to emphasise that phrase–‘where the months are broken’: it seems to govern all
that follows . . .)
the day on
which the notice was given being excluded, the calendar month or other period
of time required is complete when, starting from a given day in the first month
you come to the corresponding day in the succeeding month whatever be the
length of either. This is in accordance with common usage, especially with
regard to bills of exchange, and with the sense of mankind. As Mr Kingdon
argued with great force, you cannot, in reckoning a calendar month, include two
days of the same number.
That last
sentence was particularly emphasised by one of my Lords on my left, but applied
to this case that sentence has to be translated; in reckoning four calendar
months for the purposes of section 29(3) you cannot include five days of the
same number. In his reply to Mr Guthrie, Mr Thorpe asked rhetorically, and to
my mind with great force, where, in the computation for which the tenant here
contends, concluding the four-month period on January 31, is any day of the
same number found appearing for a fifth time?
The only possible candidate for that role must be September 30; but ex
hypothesi that date is to be disregarded. I appreciate it may be said that
this conclusion leads to anomalies, but whichever way the matter is decided
there are bound to be anomalies. There could be no greater anomaly than that to
which I have already drawn attention in the circumstances that when, in a
non-leap year, a landlord’s notice is served on October 29, 30 or 31, it does
not make any difference to the date when the tenant’s four-month period for
making his application expires; in each case it expires on February 28. The
short answer to any argument based on anomalies is that one must expect
anomalies so long as Parliament chooses to specify periods for taking some
action under statute in terms of calendar months which are in their nature of
unequal length.
Accordingly I
have reached the conclusion that the learned judge and the learned registrar
were wrong, and that the appeal ought to be allowed so that the tenant’s
application
diffidence, not only because I know that it is at variance with the views of
the learned judge and the learned registrar, but still more so because I know
also that it is at variance with the views which are about to be expressed by
Stephenson LJ and Templeman LJ. Despite the diffidence, however, I am bound to
say that I have no doubt or hesitation in reaching my conclusion. It seems to
me that the point is abundantly clear and had it been up to me, I would have
allowed the appeal.
Giving
judgment in favour of dismissing the appeal, TEMPLEMAN LJ said: On September 30
1978 the landlord respondent served notice under Part II of the Landlord and
Tenant Act 1954 determining the tenancy of the applicant tenant. By section
29(3) of the Act if the tenant wished to apply for a new tenancy he was obliged
to apply ‘not less than two nor more than four months after the giving of the
landlord’s notice.’
The tenant
applied to the county court on January 31 1979 and His Honour Judge Whitehead,
sitting in the Grantham County Court on April 27 1979, decided that the tenant’s
application was too late. The tenant appeals to this court.
When time is
limited by reference to calendar months no account can be taken of the fact
that some months are longer or shorter than others. February equals March. In
my judgment if an act is authorised to be performed on any arbitrary day in any
month of the year, then one month elapses on the corresponding day of the next
month, provided that the day of the act itself is excluded from the
computation. That is what my Lord has felicitously referred to as, and I
understand to be, the corresponding day principle, evolved by the authorities
to which counsel for the landlord referred. I see no reason for engrafting on
that principle an exception which depends on the mere accident of the particular
date of service of a notice and on the particular month which follows the date
of service. It is clear that if a month’s notice is served on December 31, an
application on February 1 would be more than one month after the giving of the
notice. If a month’s notice is served on February 15, an application on March
16 would be more than one month after the giving of the notice in any year,
including a leap year. If a month’s notice is served on January 29, 30 or 31,
an application on March 1 would be more than one month after the giving of the
notice, whether February has 28 or 29 days.
In the present
case notice was given on September 30; the relevant corresponding date was
January 30. Time began to run when the clock struck midnight on September 30
and expired four months later to the stroke, when the clock struck midnight on
the corresponding January 30. In the result, the tenant’s application on
January 31 was made more than four months after the giving of the landlord’s
notice on September 30. It does not seem to me that a landlord who happens to
choose the last day of February, April, June, September or November to serve
his notice should be in any different position from a landlord who serves his
notice on any of the other 360 days. All that the tenant has to do is to look
at the day when the notice was served and if he makes his application on a
later day than that, when the necessary number of months have expired, then he
knows that his application is doomed to failure.
In my
judgment, the passage which Bridge LJ read from Webb v Fairmaner
does not assist the matter one way or the other. It says that time is to be
calculated exclusively of the day on which the contract was made. But the
question which has to be answered here is whether the application was made more
than four months after the giving of the landlord’s notice. It also says that
the party was to have two entire calendar months in which to make payment
exclusively of the day of sale; and in my judgment once the corresponding day
principle is accepted the tenant in the present case has four entire months in
which to make his application. If the landlord had served his notice on
September 29, the last available date for application by the tenant would
admittedly have been the corresponding January 29. The landlord served his
notice on September 30 and therefore the last available date for application by
the tenant was the corresponding January 30. By claiming that his last day for
application was one day later, namely January 31, the tenant is breaking the
corresponding day principle and is attempting to compensate himself for the
non-existence of September 31 by ignoring the existence of January 30. He is
not entitled to do this. In conformity with authority and consistency, when one
or more calendar months’ notice may be served on any arbitrary date, all months
are assumed to be equal, every non-existing day is ignored, no one is entitled
to ignore an existing day or to compensate for any non-existing day and any
relevant corresponding day marks the end of the period of notice.
Like the
learned judge I have some sympathy with the tenant, but he had four months; the
statute does not allow more and there are obvious reasons for finality. The
moving finger writes and having writ moves on and the court, unlike Proust, is
unable to transform time lost into time regained. I would dismiss the appeal.
Agreeing with
Templeman LJ that the appeal should be dismissed, STEPHENSON LJ said: The
tenant is required by section 29(3) of the Act of 1954 to apply for a new
tenancy not more than four months after September 30 1978. He made his
application on January 31 1979. Like Templeman LJ I agree with the registrar
and the county court judge that he made it more than four months after
September 30 because those four months expired at midnight on January 30 1979.
I know that by the Interpretation Act those four months are calendar months and
that September 30 is excluded by the rule in Lester v Garland,
now too well established to be doubted, from counting against the tenant. I
accept the statement of the rule which Bridge LJ has read from paragraph 168 of
vol 37 of the third edition of Halsbury’s Laws of England.
I also accept
the statement at paragraph 143 of the same volume, which provides:
When the
period prescribed is a calendar month running from any arbitrary date the
period expires with the day in the succeeding month immediately preceding the
day corresponding to the date upon which the period starts; save that, if the
period starts at the end of a calendar month which contains more days than the
next succeeding month the period expires at the end of the latter month.
The last
sentence is, in my judgment, supported by the case of Migotti v Colvill,
to which Bridge LJ referred, as a decision on the corresponding date principle.
If the relevant calendar month in which the period expires is too short to
provide a corresponding date, the period expires on the last day of that month,
but if that period expires in a calendar month which is long enough to provide
a corresponding date, that date appears to me to be the date on which the
period expires. If the day when the period begins to run is excluded from
counting against the tenant making the application and happens to be the last
day of a shorter month like September, it means that the four months must be
reckoned from midnight on September 30 but does not, in my opinion, mean that
because the reckoning starts as midnight ushers in the first day of a new month
the four months’ period runs over that corresponding date in the longer month
into the last day of that month.
I find much of
interest but, like my Lords, nothing of direct assistance in the authorities
which have been cited to us, though some touched on other difficulties caused
by the awkward fact that the months of the calendar are uneven in length. I do
not find the answer to the short question raised by this appeal as easy as my
Lords, for which I may perhaps be excused by the difference of opinion between
them on what the right answer is. I am, however, of the opinion that there is
no sufficient reason for not applying the corresponding
understand, and which were it not for the different opinion of Bridge LJ I
would accept as more in accord with what Chief Justice Cockburn called ‘the
sense of mankind’, whether or not the months to be considered are broken in
that they do not run from the last day of a month. I, too, would dismiss the
appeal.
The appeal
was dismissed with costs. Leave was given to appeal to the House of Lords.
