Landlord and tenant — Section 146(1) of Law of Property Act 1925 and section 1(1) and (4) of Leasehold Property (Repairs) Act 1938 — Breach of covenant — Forfeiture — Waiver — Appeal by tenant from county court decision dismissing his claims for possession and relief against forfeiture — Tenant held long lease of a building which became severely damaged by fire — Delay in reaching settlement with insurers and in reinstating property — Tenant’s covenant was to insure and keep insured and in the event of damage or destruction by fire to lay out the insurance moneys in rebuilding or repairing the premises — Landlord made a peaceable re-entry into the property and declared that he had forfeited the lease — Tenant sought an order for possession and for relief against forfeiture in the county court, where both claims were dismissed — Landlord had served a notice under section 146(1) of the Law of Property Act 1925 on the ground of a breach by the tenant in not reinstating the property — The case was, however, tried in the county court on the basis that the breach complained of was not the breach specified in the section 146(1) notice, but a breach of the obligation to lay out the insurance moneys — The assistant recorder decided in the county court that there had been a breach of the obligation to lay out the insurance moneys and that this was a continuing breach which persisted after a waiver by the landlord through acceptance of rent at a particular date — Held by the Court of Appeal (1) that the breach of the obligation to lay out the insurance moneys was not a breach of a repairing covenant and therefore the landlord’s section 146(1) notice was not rendered invalid by a failure to include the statements required by the Leasehold Property (Repairs) Act 1938; (2) that the breach was a breach of a single obligation, not a continuing one; (3) that the tenant’s obligation to lay out the insurance moneys was subject to an implied obligation to do so within a reasonable time and was broken when that time had passed; and (4) that the acceptance of rent by the landlord after that breach constituted a waiver of the right to forfeit, so that his subsequent entry into possession was unlawful — Penton v Barnett, as to the absence of any need to serve a fresh section 146(1) notice in the case of a continuing obligation, accepted, although the reasoning was confusing and the result surprising — Passage in Emmet on Title on the meaning of a continuing breach doubted — Tenant’s appeal allowed
This was an
appeal by the tenant, Mohamad Fathi Farimani, tenant of 10 Milner Road,
Bournemouth, from a decision of Mr Assistant Recorder Rudd, at Bournemouth
County Court, dismissing the tenant’s application for recovery of possession of
the house and relief against forfeiture of his leasehold interest. The
landlord, present respondent, was Robert G Gates.
Michael Norman
(instructed by Rooks, Rider & Co, agents for Marshall Harvey & Keats,
of Bournemouth) appeared on behalf of the appellant; Albert Minns (instructed
by Rawlins, Davy & Wells, of Bournemouth) represented the respondent.
Giving
judgment, GRIFFITHS LJ said: The appellant and the respondent are the
successors in title of the original parties to a lease dated February 14 1962,
by which 10 Milner Road, Bournemouth, was demised for a term of 99 years. The
premises are a substantial building divided into five flats. The appellant is
the tenant and the respondent the landlord.
On May 31 1982
the building, which had been empty for some time, was seriously damaged by
fire. The appellant, who had insured the building against fire, entered into
negotiations with the insurance company. After meetings between a chartered
surveyor acting on
specification of the work necessary to repair the fire damage was agreed
between the surveyors and put out to tender in September. The lowest estimate
was for £75,890 received by the appellant’s surveyors on October 21 1982.
In the
meantime the landlord, I suppose to put pressure on the tenant to get on with
the rebuilding, had served a notice under section 146 of the Law of Property
Act 1925 alleging a breach of the covenant in the lease that required the
tenant to insure against fire and to use the insurance moneys to rebuild after
a fire. I will return later to the wording and effect of that notice, but to
continue with the history, the next event of importance was that the landlord’s
solicitors accepted from the tenant payment of two quarters’ rent due up to
December 25 1982.
The insurers made
an offer to settle the tenant’s claim on the basis of the estimate of October
21, with certain deductions for betterment. But the tenant did not accept that
offer and by July 1983 he had come to no agreement with the insurers and no
building work had been commenced. On July 22 the landlord’s solicitors
re-entered the premises and delivered a letter of that date in the following
terms to the tenant’s solicitors:
We refer to
our letter of June 13 last and we write to inform you that our clients have
today made a peaceable re-entry at the property and consequently your client’s
lease has been forfeited.
A notice has
been attached to the gate of the property.
‘KEEP OUT. The
lease of these premises has been forfeited. All enquiries to Rawlins Davy and
Wells — Bournemouth 28844’.
We should
also inform you that if your client attempts to break back in he may be
committing a criminal offence and we should also tell you that we are arranging
for the insurance monies to be paid to our clients. Furthermore, it is our
clients intention to grant a new Lease but obviously not to Mr Farimani.
The tenant
responded by applying to the Bournemouth County Court for an order for
possession of 10 Milner Road and for relief against forfeiture. On November 23
1983 the assistant recorder dismissed both applications and the tenant now
appeals against that judgment.
The tenant’s
covenant for the breach of which the landlord claimed that he was entitled to
forfeit the lease by way of re-entry reads as follows:
AND will
insure and keep insured the said dwellinghouse outbuildings and premises and
other erections (if any) hereafter to be made against loss or damage by fire in
the full replacement value thereof in the joint names of the Lessors and the
Lessees in the Law Union and Rock Insurance Office or some other Insurance
Office to be prescribed in writing by the Lessors and from time to time produce
to them if required the Policy or Policies of such Insurance and the receipt
for the premium thereon for the current year AND in case of damage or
destruction by fire will forthwith lay out or cause to be laid out the whole of
the money to be received from such insurance in or towards rebuilding or
repairing the said premises and making them fit for habitation and use AND if
such money shall not be sufficient for such purpose that they the Lessees will
at their own cost complete the rebuilding and repairing of such premises
respectively and make them fit for habitation and use.
The section
146 notice was in the following terms:
I the undersigned
GIVE YOU NOTICE as follows:
1. The Lease
dated Fourteenth day of February One Thousand nine hundred and sixty two and
made between Alice Ellen Cooper-Dean and Edith Bethia Cooper-Dean of the one
part and Cliff Grange Investments Limited of the other part under which you
hold the premises known as Number 10 Milner Road Bournemouth in the County of
Dorset contains a covenant by the Lessee to insure and keep insured the said
dwellinghouse outbuildings and premises and other erections if any hereafter to
be made against loss or damage by fire in the full replacement value thereof in
the joint names of the Lessors and the lessee in the Law Union and Rock
Insurance Office or some other insurance office to be prescribed in writing by
the Lessors and from time to time produce to them if required the policy or policies
of such insurance and the receipt for the premium thereon for the current year
and in case of damage or destruction by fire will forthwith lay out or cause to
be laid out the whole of the money to be received from such insurance in or
towards re-building or repairing the said premises and making them fit for
habitation and use.
2. There has
been a breach of the said covenant in that the premises have not been
reinstated for habitation following the fire at the property on the 31st day of
May 1982.
3. I require
you within a reasonable time to remedy the said breach and also to be
responsible for the costs of my surveyor and solicitors.
The service of
a proper section 146 notice is a condition precedent of the right to forfeit a
lease whether by action or peaceable re-entry.
It is worth
reminding oneself of the wording of subsection (1):
146(1) A right
of re-entry or forfeiture under any proviso or stipulation in a lease for a
breach of any covenant or condition in the lease shall not be enforceable, by action
or otherwise, unless and until the lessor serves on the lessee a notice —
(a) specifying the particular breach complained
of; and
(b) if the breach is capable of remedy,
requiring the lessee to remedy the breach; and
(c) in any case, requiring the lessee to make
compensation in money for the breach;
and the
lessee fails, within a reasonable time thereafter, to remedy the breach, if it
is capable of remedy, and to make reasonable compensation in money, to the
satisfaction of the lessor, for the breach.
The particular
breach complained of in this section 146 notice was ‘the the premises have not
been reinstated for habitation following the fire at the property on 31st day
of May 1982’. The tenant cannot conceivably have committed a breach of that
obligation as at September 23 1982. There manifestly had not been sufficient
time since the fire to rebuild. As a result of the time understandably involved
in consultations between surveyors in drawing up and agreeing the specification
to go out to tender the tenant did not even receive an estimate until October.
If this point had been taken, it seems to me that the assistant recorder would
have been bound to hold that this was a bad notice and that in consequence the
landlord was not entitled to forfeit the lease by re-entry and that the tenant
was entitled to his order for possession.
However, the
point was not taken, and the assistant recorder was invited to try the case
upon the basis that the breach complained of was not the breach specified in
the notice but a breach of the obligation to lay out the insurance money. Even
on this approach it seems difficult to see how, at the date of the notice, the
tenant could have been in breach of such an obligation, bearing in mind he had
not received any money and that it was not reasonable to expect the insurers to
pay any money at least until they had seen and approved a builders’ estimate,
which was not obtained until October. It would, however, appear that the
assistant recorder took the view that there was a breach of the obligation to
lay out the insurance money in September and there is no appeal from that part
of his decision.
The tenant
challenges the judgment on two grounds. Firstly, it is submitted that the
section 146 notice was invalid because it did not comply with section 1(1) and
(4) of the Leasehold Property (Repairs) Act 1938 which provides:
1(1) Where a lessor serves on a lessee under
subsection (1) of section one hundred and forty-six of the Law of Property Act,
1925, a notice that relates to a breach of a covenant or agreement to keep or
put in repair during the currency of the lease a house of a rateable value of
one hundred pounds or less, and at the date of the service of the notice five
years or more of the term of the lease remain unexpired, the lessee may within
twenty-eight days from that date serve on the lessor a counter-notice to the
effect that he claims the benefit of this Act.
(4) A notice served under subsection (1) of
section one hundred and forty-six of the Law of Property Act, 1925, in the
circumstances specified in subsection (1) of this section, and a notice served
under subsection (2) of this section shall not be valid unless it contains a
statement, in characters not less conspicuous than those used in any other part
of the notice, to the effect that the lessee is entitled under this Act to
serve on the lessor a counter-notice claiming the benefit of this Act, and a
statement in the like characters specifying the time within which, and the
manner in which, under this Act a counter-notice may be served and specifying
the name and address for service of the lessor.
It is conceded
that the section 146 notice did not contain the statement set out in subsection
(4). Whether or not it should have done so depends upon whether the covenant
upon which the landlord relied was a covenant to keep or put in repair within
the meaning of section 1(1). The tenant points to the concluding words of the
covenant ‘And if such money shall not be sufficient for such purpose they the
lessees will at their own cost complete the rebuilding and repairing of such
premises respectively and make them fit for habitation’ and says, as a matter
of plain English, that is a covenant to put in repair within the meaning of
subsection (1), and he relies upon the obiter view expressed by Buckley J as to
the nature of such an obligation in Re King decd [1962] 1 WLR 632 at p
645:
. . . in the
present case the covenant to reinstate the premises does, in my judgment,
constitute a covenant to repair in accordance with the ordinary sense of that
word in the English language; and if, as has been held, a covenant to repair in
a lease is apt to impose upon the tenant an obligation to reinstate the
premises if they are burnt down, it seems to me difficult to say that a
covenant to reinstate the premises if they are burnt down is not a covenant to
repair.
There would, I
think, be considerable force in that argument if the landlord’s complaint in
the section 146 notice was of a failure to reinstate. But, despite the wording
of the notice, as I have pointed out
complaint in the notice was of a failure to lay out the insurance moneys. The
covenant, or that part of the covenant upon which the landlord relied, was a breach
of the obligation to use the insurance moneys for rebuilding, which is a quite
distinct obligation from the obligation to reinstate which has to be fulfilled
whether or not the tenant obtains any insurance moneys. But it is, of course,
of prime importance to a landlord to be able to ensure that insurance moneys
are used to rebuild and such clauses are to be found in almost every lease.
Such a covenant is not, in my view, a repairing covenant within the meaning of
section 1(1) of the Leasehold Property (Repairs) Act 1938, and accordingly the
notice was not invalid because it did not comply with section 1(4).
The second
attack on the judgment is founded upon the landlord’s concession that, by
accepting rent up to December 25 1982, he waived any breaches of the covenant
up to that date and consequently any right to forfeit for any breach of the
covenant committed before that date. The tenant’s argument is as follows: the
covenant to lay out the insurance moneys is to be construed as subject to an
implied obligation on the part of the tenant to take all reasonable steps to
ascertain the insurance fund available and to lay it out by instructing
builders within a reasonable time. Once that reasonable time has expired, if
the tenant has not laid out the insurance moneys, he is in breach of the
covenant. This is a covenant that can be broken only once. It is like a
covenant to put in repair or to build by a certain date; if the covenant is
broken and sued upon, no further action can be maintained for that breach (see Coward
v Gregory (1866) LR 2 CP 153, and Stephens v Junior Army and
Navy Stores Ltd [1914] 2 Ch 516).
As there has
been found to be a breach of covenant before December 25 1982, and as it is
conceded that the breach was waived, it must follow that the landlord had
waived his right to forfeiture for the breach; and his re-entry was therefore
unlawful. The assistant recorder rejected this argument and held that the
breach was a continuing breach which continued after the waiver and up to the
time of re-entry, and that the section 146 notice was not affected.
The landlord
has sought to uphold the judgment, arguing that this covenant is subject to the
implied term that the tenant will take all reasonable steps to ascertain the
insurance fund and that this obligation continues up to the moment the fund is
ascertained. The landlord submits that, so long as the tenant is not taking
reasonable steps and as a result the fund has not been ascertained, he is in
continuing breach of his obligation.
I confess that
when I prepared the first draft of this judgment I thought it would be
unnecessary to resolve this question of construction. It appeared to me that,
even if the breach was of a continuing obligation, the waiver by acceptance of
rent must have disentitled the landlord from relying on any breach prior to the
waiver and that, accordingly, he would not be entitled to re-enter without
serving a fresh section 146 notice specifying the further breach upon which he
was now relying and giving the tenant an opportunity to remedy it. Counsel,
however, drew my attention to the decision of the Court of Appeal in Penton
v Barnett [1896] 1 QB 276 in which the facts were that on September 22
1896 the landlord served a notice under section 14(1) of the Conveyancing Act
1881 requiring the tenant to execute certain repairs within three months,
pursuant to his obligation under the lease to keep and preserve the premises in
good and substantial repair and condition. The tenant did no repairs and by
writ dated January 14 1897 the landlord claimed possession, a quarter’s rent
due to December 25 and mesne profits from December 25. The tenant succeeded at
first instance on the ground that the landlord, by claiming rent, had waived
his right of forfeiture for the antecedent breaches of the repairing covenant
and was not, therefore, entitled to possession.
On appeal the
tenant’s counsel argued that, once there had been a waiver of the breach
specified in the notice, the landlord could not obtain forfeiture unless he
served a new notice under the Conveyancing Act specifying the further breaches
upon which he intended to rely (the argument which appealed to me). The Court
of Appeal rejected this argument and gave judgment for the landlord. All three
lords justices gave different reasons for allowing the landlord to rely on his
original notice and I do not find it easy to follow their reasoning. Smith LJ
gave as the ground for his decision that the breaches after acceptance of rent
were the same as those in respect of which notice was given. (How does this fit
in with a waiver?) Rigby LJ, on the
ground that the claim for rent did not constitute a waiver of the forfeiture
because it was a continuing breach: Collins LJ basing himself on a liberal
construction of the statute and agreeing with the reasons of the other lords
justices. But however confused I may be by the reasoning of the court, the
result is clear enough and binds this court. It is unnecessary to serve a
second section 146 notice (the successor to a notice under the Conveyancing Act)
in the case of a covenant that imposes a continuing obligation, and we were
told by counsel that this much was agreed at the trial.
In arriving at
his conclusion that the breach of the covenant to lay out the insurance moneys
was a continuing breach, the assistant recorder relied upon a passage in Emmet
on Title 17th ed at p 1002. He said:
I focus on
the words ‘if the lessee has it in his power to remedy the breach, it is a
continuing breach but if he has not, then it will not be a continuing breach’.
I propose to apply those words. . . . I am satisfied that throughout the period
from September 1982 the applicant had it in his power to remedy the breach
simply by taking constructive and active steps. He needed only to take action
on the specifications and quotation that had been obtained to ensure that the
insurance company’s monies were available. I therefore take the view that this
was a continuing breach.
I do not find
the passage upon which the assistant recorder relied a helpful test in deciding
whether or not an obligation is of a continuing nature. If an obligation is to
perform an act by a given time, once that time has elapsed and the act has not
been performed, there is a breach of a single obligation and not of a
continuing one. The fact that it still lies within the power of the lessee to
perform the act cannot affect the nature of his obligation. In this field of
law a reference to a continuing breach is a way of referring to breaches of a
continuing obligation and does not refer to the ability to remedy a single
breach.
In my view the
tenant’s construction of the covenant to lay out the insurance moneys is
correct. In order to give the clause business efficacy, there must be implied a
term that the tenant will lay out the moneys within a reasonable time. Without
such an implied term the tenant might be able to delay for years after a fire,
which cannot have been the intention of the parties. There is no difference
between an obligation to perform an act by a given date and an obligation to
perform an act within a reasonable time. If the tenant fails to perform the act
within a reasonable time he has broken his obligation, which is a single and
not a continuing obligation: see Re King [1963] 1 Ch 459, CA, in which
Lord Denning MR said at p 478:
Let me next
take the covenant to reinstate. Suppose the premises are damaged by fire. The
lessee does not reinstate within a reasonable time. The breach is over once and
for all, but its effect continues.
Therefore, on
the assistant recorder’s finding, the tenant was in breach of his obligation to
lay out the insurance moneys by the date of the section 146 notice. That
breach, it is conceded, was waived by acceptance of rent. The breach was a
once-and-for-all breach of a single obligation and, as it had been waived, it
could not thereafter be relied upon as a ground for forfeiture. Therefore I
conclude, albeit by a very different route from that which I should have
followed had I been free to do so, that the landlord was not entitled to
forfeit the lease by way of re-entry and that the appeal should be allowed and
an order for possession made in favour of the tenant.
Agreeing,
SLADE LJ said: I have had the advantage of reading the judgment of Griffiths
LJ. I respectfully agree with it but will add a few observations of my own,
since we are differing from the assistant recorder.
As presented
by Mr Norman on his behalf, the tenant’s principal arguments in support of this
appeal have been based on two points, namely:
(1) As is common ground, it is essential that the
landlord, before enforcing his right of re-entry under the lease for any breach
of the relevant tenant’s covenant, should have served a proper notice under
section 146(1) of the Law of Property Act 1925 (‘the Act of 1925’). However, so
it is submitted, the section 146 notice dated September 23 1982, on which the
landlord relies, related to a breach of covenant ‘to keep or put in repair
during the currency of the lease’, within the meaning of section 1(1) of the
Leasehold Property (Repairs) Act 1938 (‘the Act of 1938’). Therefore, so the
argument runs, it cannot be valid, because it did not contain a statement of
the nature referred to in section 1(4) of that Act.
(2) In any event, it is said, the tenant’s
covenant which was alleged to have been broken was one which, by its very
nature, could be broken once only; the breach, it is argued, was not of a
continuing nature.
lease for the relevant breach by accepting on February 28 1983 two quarters’
rent to Christmas 1982.
These two
arguments, both of which were presented to the assistant recorder, by their
very nature necessitate a clear identification of the nature of the particular
breach complained of by the landlord, on which he relies to justify his
re-entry in July 1983. Careful identification of the relevant breach, as well
as the relevant covenant, is always necessary where a section 146 notice is
under consideration. With all due respect to all concerned, I think that, in
the present case, inadequate attention was focused on the precise nature of the
alleged breach, both by the draftsman of the section 146 notice itself and at
the hearing in the court below. I believe that this has led to some confusion.
Like Griffiths LJ, I have considerable doubt whether, as at September 23 1982,
when the landlord’s section 146 notice was served, there was, as yet, even any
subsisting breach of the tenant’s covenant referred to in that notice. If, on
the other hand, there was a subsisting breach, it seems to me that for the
notice to assert that the breach had occurred ‘in that the premises have not
been reinstated for habitation’ was a wholly inappropriate description of the
alleged breach really complained of, which was that the tenant had not taken
adequate steps to get in the insurance moneys.
However, these
points have not been taken on behalf of the tenant. As to the first of the two
points which have been taken in support of this appeal, the question whether a
notice served on a lessee under section 146(1) of the Act of 1925 ‘relates to a
breach of a covenant or agreement to keep or put in repair’ within the meaning
of section 1(1) of the Act of 1938, in my opinion must depend on the form of
the particular notice. The landlord’s notice dated September 23 1982 did not
allege any breach of the tenant’s covenant at his own cost to ‘complete the
rebuilding and repairing of such premises’ if the insurance moneys should not
suffice for the purpose. It merely alleged a breach of the covenant to insure
and keep insured the premises and of the covenant to ‘lay out or cause to be
laid out the whole of the money to be received from such insurance in or
towards rebuilding or repairing the said premises and making them fit for
habitation and use’. A covenant to insure and keep insured manifestly does not
fall within section 1(1) of the Act of 1938. Nor, in my opinion, does the
covenant which I have just quoted. A covenant to lay out or cause to be laid
out a particular fund of money in a particular manner cannot, in my opinion,
according to the ordinary meaning of words, properly be described as a
‘covenant to keep or put in repair’, whether or not the object of the
expenditure is to be the total or partial rebuilding or repair of premises. I
therefore think that section 1 of the Act of 1938 does not invalidate the
section 146 notice.
As to the
second point, any breach of the relevant tenant’s covenant subsisting up to
December 25 1982 was waived when the landlord accepted rent up to that date.
The landlord, however, submits that the breach of covenant which gave him the
right of re-entry was a continuing breach, which gave rise to a recurring cause
of forfeiture when it continued after December 25 1982. I respectfully agree
with Griffiths LJ that if in any given case the relevant obligation is to
perform an act by a given date or (as the case may be) within a reasonable
time, that is an obligation which can only be broken once; if the act has not
been performed by that date or (as the case may be) within a reasonable time,
there is a single breach of that covenant, but no continuing breach. An
illustration of the principle is to be found in Coward v Gregory
(1866) LR 2 CP 153 where Erle CJ (at pp 169-170) drew a distinction between a
breach of a covenant not to put premises into repair, which by its very nature
‘could only be broken once’, and a breach of a covenant to keep premises in
repair, which was ‘clearly a continuing breach’. Similarly, in Stephens
v Junior Army and Navy Stores Ltd [1914] 2 Ch 516 at p 523 Lord
Cozens-Hardy MR regarded a covenant to build before a stated date as one which
‘could only be broken once’.
In the present
case, in accordance with these principles, the covenant to lay out or cause to
be laid out the insurance moneys was, in my opinion, one which by its very
nature could only be broken once. It was submitted on behalf of the landlord
that, in order to give business efficacy to the relevant tenant’s covenants,
one has to imply a further covenant on his part, in the event of damage or destruction
by fire, to take all reasonable necessary steps to get in the insurance moneys
within a reasonable time. I would accept this submission. But, in accordance
with the principles already stated, I think that even this implied covenant
likewise is one which by its very nature could only be broken once in relation
to any given incident of fire.
It follows
that, in my opinion, the alleged breaches of the relevant tenant’s covenants
which were waived when the landlord accepted rent up to December 25 1982 were
not breaches of a continuing nature and could not thereafter be relied on as a
ground of forfeiture. The passage from Emmet on Title (17th ed) on which
the assistant recorder relied is repeated in the 18th ed at pp 940-941. I share
my lord’s doubts as to the correctness of the test suggested by the learned
editor in distinguishing between a breach made once and for all and a
continuing breach; merely because a lessee has it in his power to remedy a
breach (eg of a covenant to build), it does not necessarily follow that the
breach is of a continuing nature.
In the absence
of authority, I would have thought that, even if, contrary to my conclusion,
the relevant breach was of a continuing nature, the landlord could not have
enforced any right of re-entry in respect of any alleged continuing breach
occurring after December 25 1982, until he had served a new section 146 notice.
And indeed I, too, prepared the first draft of my judgment on this basis.
However, the decision of the Court of Appeal in Penton v Barnett
(1898) 1 QB 276, which has since been drawn to our attention, appears clearly
to establish that if, after December 25 1982, the landlord could have
established a continuing breach of the relevant covenants, no new section 146
notice would have been required. I confess that I find this decision puzzling
and surprising. By the terms of the subsections, an essential feature of a
notice under section 14(1) of the Conveyancing Act 1881, or section 146(1) of
the Act of 1925, is that it should specify
the particular
breach complained of’. For my part, I find it difficult to see how a notice
served in September 1982 can suffice if the particular breach complained of is
one which only began to occur after December 25 1982. However, the decision is
binding on us and has made it necessary to deal with the other issues decided
on this appeal.
As things are,
for the reasons given in this judgment and that of Griffiths LJ, I would allow
this appeal and make an order for possession in favour of the tenant.
The appeal
was allowed with costs. An application to appeal to the House of Lords was
refused.
