Landlord and tenant — Landlords’ claim for possession — Whether tenant in occupation was a business tenant within the Landlord and Tenant Act 1954, Part II, as landlords contended, or a residential tenant entitled to the protection of the Rent Act 1977, as the tenant contended — Conflict of evidence as to the use of premises — Appeal by defendant tenant from decision of county court judge, who had decided in favour of plaintiff landlords and made an order for possession
was a business tenancy, there was no answer to the landlords’ claim, as they
had given the defendant a proper notice terminating the tenancy under the 1954
Act and he had not responded by an application for a new tenancy — The
defendant denied that he was a business tenant and claimed to be a residential
tenant protected by the Rent Act — Physically the premises had the appearance
of a corner shop with accommodation over — As to the use, there was a conflict
of evidence at the trial — There was some evidence that the premises were used
by the defendant as a shop for the sale of bric-a-brac — The defendant’s
evidence, however, which was supported by one other witness, was that he had
never run a business from the premises — He said that he had lived in them for
a while and subsequently used them as a storeroom — The county court judge,
taking a number of different indications into account, decided, on the balance
of probabilities, that the defendant had been a business tenant and that the
plaintiff landlords were entitled to possession.
appealed, but none of his three grounds of appeal, which he put forward in
person, found favour with the Court of Appeal — The first, that he had not had
a fair trial and had been confused by interruptions from the judge, was without
substance — The second, that the plaintiffs had in effect manufactured evidence
by persuading him to be photographed in front of the premises with the sign
‘Bargains’ over the front door, had not been put forward in evidence before the
judge — The third, that the residential flat was separate from the shop and
that the plaintiffs should be given possession of the shop, leaving him in
possession of the flat, had not been advanced in the court below and in any
case overlooked section 23(1) of the 1954 Act — The tenancy here ‘included’
premises occupied for the purposes of a business — Appeal dismissed
No cases are
referred to in this report.
This was an
appeal by the tenant, Colin Thomas Ward, the defendant below, from the decision
of Judge Giles Rooke, at Folkestone County Court, granting the plaintiffs (the
present respondents), Kent Coast Property Investments Ltd, possession of
premises at 120 Canterbury Road, Folkestone.
The appellant
appeared in person; William Edis (instructed by Rootes & Alliott, of
Folkestone) represented the respondents.
Property Investments Ltd, claim possession of premises at 120 Canterbury Road,
Folkestone, together with arrears of rent. The defendant is Mr Colin Thomas
Ward. The question turns on whether the defendant is in occupation of the
premises under a business tenancy. If he is, then it is clear that the
plaintiffs are entitled to possession, however unfortunate that may be for the
defendant, since the defendant never made any application for a new tenancy
under Part II of the Landlord and Tenant Act 1954. The plaintiffs gave due
notice to terminate the tenancy on April 5 1987. If the defendant had wished to
renew the tenancy he should have applied in accordance with section 29 of the
Act, but he never did.
The defendant
denies that he is in occupation of the premises as a business tenant. His case
is that he is a residential tenant and is therefore a protected tenant under
the terms of the Rent Acts.
The case came
before His Honour Judge Rooke sitting at Canterbury on April 18 1989. Mr
Gadman, the director of the plaintiff company, gave evidence for the plaintiffs
that the plaintiffs bought the premises in September 1986. In appearance (we
have seen some photographs) the premises are a corner shop with accommodation
over. They were so described in the sales particulars prepared by Messrs
Ashendens, the estate agents. The shop was used for a time to run a taxi
business, according to Mr Gadman’s evidence, and was thereafter used by the
defendant for the sale of bric-a-brac.
The defendant
gave evidence that he had been in occupation of the premises since February
1976, long before the plaintiffs bought the premises. He said that he lived in
the shop for a while, and subsequently used the shop as a storeroom. He never
ran a business from the premises. His case was supported by the evidence of a
Mrs Methven, who is a dealer in fine art with a good knowledge of shops in the
locality. She said that she had never seen the premises used as a shop.
The judge then
had to resolve this conflict of evidence. He came down in favour of the
plaintiffs. He took a number of factors into account. First it appears that the
defendant had until October 1988 paid business rates in respect of the shop;
second the judge was shown a series of photographs, one of which shows a sign
over the shop with the word ‘Bargains’ although, as the judge went on to point
out, that was after these proceedings had been commenced. The defendant, in the
course of his evidence, explained the sign ‘Bargains’ by saying that it was to
tease the public. That led the judge to have some doubts about the defendant’s
reliability as a witness. The judge concluded his judgment as follows:
But on the
balance of probabilities (and it is the balance of probabilities which I have
to ascertain) and when I come to weigh the relative credibility of Mr Gadman on
the one side and the evidential effect of the rate payments, small ingredient
the particulars of sale but only a very small ingredient, on the one hand; and
when I have to look at the evidence of the defendant on the other both in what
he had to say and the way he had to say it and the discursive element of
grievance which was painfully present in his testimony I must and do find as
fact that the defendant did for a material and significant time up to
proceedings being issued occupy the demise for business purposes.
The defendant
now appeals to this court. He has appeared in person before us this morning as
he appeared in the court below. There are three separate grounds of appeal. The
first is that the defendant did not have a fair hearing. He explained to us
that he is not very experienced in the ways of the law and that he was confused
by the judge’s many interruptions. That was the complaint. There is nothing
whatever to substantiate that complaint or to lead us to suppose that the judge
did not give all the assistance which it is customary for judges to give to
litigants in person.
We now have an
affidavit from a Mr Radcliffe, who was the solicitor for the plaintiffs, who
was present throughout the hearing in the court below. The effect of that
evidence is that the judge had been firm with the defendant, but had also been
very fair. He had to be firm, no doubt because Mr Ward feels very strongly
about the justice of this case and was inclined, as we have seen ourselves this
morning, to be somewhat emotional, but nevertheless, according to Mr Radcliffe,
the judge never departed from the proper standard of fairness which is to be
expected in these cases.
The second
ground of appeal is that it was the plaintiffs who had persuaded the defendant
to open a shop in order that Mr Gadman could take a photograph of the shop with
the sign ‘Bargains’ over the front door in support of the plaintiffs’ case. But
there is not a word about that in the defendant’s evidence before the judge. I
do not accept that the defendant was prevented by the judge from giving that
evidence at the trial if it had been true.
Third, it is
said that the flat, 120A, is separate altogether from the shop at 120B and that
the plaintiffs should be given possession of the shop while leaving the
defendant in possession of the flat. But again that argument was not advanced
in the court below. More important, it overlooks the terms of section 23(I) of
the Landlord and Tenant Act 1954, under which Part II of the Act applies to
premises part of which are used for the purposes of a business carried on by
the tenant. The tenancy here included premises, namely the shop, which were
occupied by the defendant, on the judge’s finding, for the purposes of a
business, such as it was. That was a finding of fact made by the judge. There
was evidence to support it. There is no basis on which we could take a
different view.
Finally, Mr
Ward has shown us a letter dated September 29 1988 from which it appears that
the plaintiffs, through their solicitors, offered the sum of £3,500 to the
defendant to vacate the premises. The defendant says that the making of that
offer was subsequently denied by the plaintiffs in the course of criminal
proceedings before Judge Cosgrove in the Maidstone Crown Court. Whatever may be
the rights or wrongs about that, I do not see how it has any bearing at all on
the present case.
For the
reasons which I have given, there was evidence to support the judge’s finding
of fact here that this was a business tenancy. I agree with that finding. It
follows that the appeal must be dismissed.
BELDAM LJ agreed and did not add anything.
The appeal
was dismissed with costs.
