Landlord and Tenant Act 1954–Tenants’ application for new tenancy under Part II–Application made in time but service of application on landlords out of time–Question whether under County Court Rules the time for service could be extended–County court judge’s decision to grant an extension of time upheld
This was an
interlocutory appeal from a decision of Judge Ruttle at Westminster County
Court. The proceedings concerned an application by Philip Lewis and Roy Charles
Weksler for a new tenancy of garage premises at Haunch of Venison Yard, Brook
Street, London W1. The county court judge had dismissed the landlords’
application to strike out the tenants’ originating application for a new
tenancy and had granted the tenants’ application for an extension of time for
the service of their originating application on the landlords. The landlords
appealed against this order.
Michael Rich
(instructed by Underwood & Co) appeared on behalf of the appellants
(landlords); Norman Primost (instructed by Miller, Clayton & Co)
represented the respondents (tenants).
Giving
judgment, ORR LJ said: This is an appeal by the landlords (the title having
been assigned since the trial and new landlords substituted as appellants) of
premises known as Garage No 1, Haunch of Venison Yard, Brook Street, London,
against an order made by Judge Ruttle on February 2 of this year in the
Westminster County Court, by which he dismissed an application by the landlords
to strike out an originating application by the tenants for a new tenancy of
those premises, and on the tenants’ application to extend their time for
service of the originating application he granted an extension of three days
from February 21 1977.
The facts of
the case are, briefly, these. On August 23 of last year the tenants made
application for a new tenancy of the premises under Part II of the Landlord and
Tenant Act 1954, and that application was made in good time, the last date for
making it being September 3 1976. But the County Court Rules, by Order 40 rule
8 subrule (1A) and Order 8 Rule 35 require service of such an application to be
effected within a month. On that basis the last date for service was September
23 1976, but in fact service was not effected within that period and it appears
from a letter from the Westminster County Court dated October 26 1976 that this
failure was due, in part at least, to the application having been attempted to
be served by post at the appellants’ registered office on August 25 and the
letter having been returned by the Post Office marked ‘Gone Away,’ the
landlords having by then transferred their registered office to an address in
Hounslow.
On September 9
1976 the solicitors for the respondents wrote to the solicitors for the
landlords informing them that they had been told by the county court that the
summons
pleased, accordingly, if you would let us know the correct address of Wolking
Properties Ltd so that the summons can be served.’ To that they received a reply dated September
17 from the appellants’ solicitors: ‘Thank you for your letter of September 9,
the contents of which are noted. On the assumption that the summons was issued
within the required time, from service of the section 25 notice, we will agree
to accept service on behalf of our clients.’
It is unfortunate that in that letter the appellants’ solicitors did not
provide the answer for which the respondents had asked, namely, the correct address
of the landlord company.
Before the
judge the tenants claimed that the court had jurisdiction to extend time for
service, both under the County Court Rules and under the inherent jurisdiction,
and in the further alternative they alleged waiver by the appellants of any
objection they might have had to the form of service, but all three of those
claims were challenged by the appellants. In his judgment the judge found that
there was jurisdiction under the rules; and the first issue in this appeal is
whether he was right in so holding. The second and third issues, which only
arise if the judge was wrong in holding that there was jurisdiction under the
rules, are whether he had inherent jurisdiction to make the orders he did and
whether he was right in rejecting, as he did, the respondents’ plea of waiver.
The County
Court Rules directly relevant to the first issue are as follows: Order 40 Rule
8(1) and (1A), and Order 8 Rule 35(1), (2) and (4).
Order 40 Rule
8:
(1) An application for a new tenancy under
section 24 of the Act of 1954 shall be made by originating application in Form
335. (1A) Order 8, Rule 35, shall apply in relation to an originating
application under this Rule as it applies in relation to a default summons but
with the substitution for the references to 12 months of references to one
month.
Order 8 Rule
35:
(1) The time within which a default summons may
be served shall, unless extended under the next succeeding paragraph, be
limited to a period of 12 months from the issue of the summons. (2) Where
reasonable efforts have been made to serve the summons within the said period
and service has not been effected, the registrar may, on application, order
that the time be extended for a further period not exceeding 12 months or for
successive periods not exceeding 12 months each: Provided that the time shall
not be extended for any period unless the application is made within the
currency of the last preceding period. . . . (4) Where the summons has not been
served within the time allowed for service by this Rule, the action shall be struck
out.
Mr Rich in
this court, as before the learned judge, placed much reliance on the very
positive character of the words in subrule (4), but, as the learned judge
pointed out, there are other rules to which regard is to be had, in particular
Order 37 Rule 4 and Order 13 Rule 5.
Order 37 Rule
4:
(1) Where there has been a failure to comply with
any requirement of these Rules, the failure shall be treated as an irregularity
and shall not nullify the proceedings, but the court may set aside the
proceedings wholly or in part or exercise its powers under these Rules to allow
such amendments, if any, and to give such directions, if any, as it thinks fit.
(2) No application to set aside any proceedings for irregularity shall be
granted unless made within a reasonable time, nor if the party applying has
taken any step in the proceedings after knowledge of the irregularity. (3)
Where any such application is made, the objections intended to be relied upon
shall be stated in the notice. (4) The expression ‘proceedings’ in paragraph
(1), and where it first occurs in paragraph (2), includes any step taken in the
proceedings and any document, judgment or order therein.
Order 13 Rule
5:
(1) Subject to the provisions of these Rules, any
of the times fixed by these Rules or by any judgment, order or direction for
doing any act may be enlarged or abridged by consent of all parties or by the
court on the application of any party. (2) An order enlarging time may be made
although the application therefor is not made until after the expiration of the
time allowed or appointed.
On the basis
of those provisions and on a consideration of the rules generally, the judge
came to the conclusion that there was power under the rules to extend time for
service of the tenants’ application. On this appeal Mr Rich has sought to
persuade us that that conclusion was wrong. He argued that there are to be
found in the rules three different kinds of time provision, the first of them
being where the rule does not provide what is to happen if the time limit is
extended (and he gave us as examples of that Order 8 Rule 4 and Order 9 Rule
4); the second, where there is such a provision but the consequences may, under
the rules, be avoided (and he gave as examples Order 7 Rule 9 and Order 9 Rule
1); and finally, the third class (a variant of the second), where the
consequences cannot be avoided (and he gave as an example, and I think as the
sole example, of that, Order 8 Rule 35). I for my part have not been satisfied
that that provision falls outside Mr Rich’s second class; and he was, through
no fault of his, unable to support his argument by any cogent authority. Mr
Primost was able to rely on a considerable number of authorities, to which I do
not find it necessary to refer in detail, but they include the speeches in the
House of Lords in Kammins Ballrooms Co Ltd v Zenith Investments
(Torquay) Ltd [1970] 2 All ER 871; they include, in addition, Westminster
City Council v Chapman [1975] 2 All ER 1103, Harkness v Bell’s
Asbestos & Engineering Ltd [1967] 2 QB 729, a decision of this court;
and R v Bloomsbury and Marylebone County Court, ex parte Villerwest
Ltd [1976] 1 All ER 897. I have borne in mind, in reference to an additional
authority on which Mr Primost relied, Sheldon v Brown Bayley’s Steel
Works Ltd [1953] 2 QB 393, that there was a difference in wording involved
in that case. But I have derived, for the purposes of the decision of this
case, considerable help from the passages to which we were referred in the
speeches in the House of Lords in the Kammins Ballrooms Co case. In
addition, Mr Primost was in my judgment entitled to claim that the construction
which he invited us to put on the provisions in question is in complete harmony
with the provisions contained in Order 2 rule 1 of the Rules of the Supreme
Court and the note which follows that rule in the Annual Practice. I
would add that it is a necessary consequence of Mr Rich’s argument that, if it
is right, no relief at all could be obtained by an applicant for a new lease
who, for reasons quite beyond his control, has been unable to serve notice of
his application on the landlord within the permitted time; and for this reason,
quite apart from authority, I should for my part have been reluctant to adopt
the construction which Mr Rich advances unless compelled to do so by the
language of the rules. I do not, for the reasons I have indicated, find myself
so compelled.
For these
reasons (and I intend no disrespect to the arguments on both sides in dealing
with the matter shortly) I am left in no doubt that the judge’s decision on the
main issue in this case was right for the reasons given by him; and I find it
unnecessary to consider the other issues, which on that basis do not arise.
I would
dismiss this appeal.
LANE LJ gave a
judgment agreeing that the appeal should be dismissed.
The appeal
was dismissed. Leave to appeal to the House of Lords was refused.
