Landlord and tenant — Repairs — Landlord’s covenant to repair — Whether replacement of single glazed window frames with double glazed window frames repair — Whether landlord entitled to interlocutory mandatory injunction allowing access for repairs — Whether plaintiff’s undertaking in damages acceptable — Whether undue delay in seeking interlocutory relief
The plaintiff
landlord owns a nine-storey building of which one floor is occupied by one of
the defendants and two other floors by another defendant. The two defendants
each hold leases under which the landlord covenants to maintain and keep in
good and tenantable repair, inter alia, the window frames (excluding
glass). The tenants covenant to keep in good and substantial repair, inter
alia, the glass in the windows, and to allow the landlord entry to execute
repairs. The landlord is entitled to recover from the tenants, by way of a
service charge, the costs it incurs on repairs. On December 12 1997 a contract
was placed to refurbish the exterior of the building, including the replacement
of the existing rusted single glazed window frames with double glazed units.
The tenant occupying the lower floors agreed to the work being carried out. By
November 24 1997 both defendant tenants objected contending that the
replacement of the existing window frames by double glazed units went beyond
the meaning of ‘repair’ in the landlord’s repairing covenant, and that the
landlord should not have access to their premises to carry out such work. The
writ was issued on January 12 1998.
were out of repair and the obligation upon the landlord to repair them had
arisen. Accordingly, the landlord is entitled to have access to the premises
for the purposes of doing a repair. The additional cost of using window frames
that will take double glazing and, in due course, of installing two panes of
glass where one was before, is of a comparatively trivial amount, a question purely
of degree and quite incapable of being an alteration of a kind so as to
constitute a renew and not within the covenant of repair. The proposed works
are within the covenant, are necessary to be performed and are a reasonable and
proper method of carrying out the landlord’s covenant to repair. There is a
very high degree of probability that the order giving access would be made at
trial. The tenants are protected by adequate cross-undertakings in damages.
There had not been undue delay by the landlord in seeking interlocutory relief.
The following
cases are referred to in this report.
Doherty v Allman (1878) 3 App Cas 709; 39 LT 129; 26 WR 513, HL
Elmcroft
Developments Ltd v Tankersley-Sawyer [1984]
1 EGLR 47; [1984] EGD 348; (1984) 270 EG 140; 15 HLR 63, CA
Films
Rover International Ltd v Cannon Film Sales Ltd
[1987] 1 WLR 670; [1986] 3 All ER 772
Lurcott v Wakely [1911] 1 KB 905, CA
Post
Office v Aquarius Properties Ltd [1985] 2
EGLR 105; (1985) 276 EG 923; [1987] 1 All ER 1055; [1987] 1 EGLR 40; (1987) 281
EG 798, CA
Proudfoot
v Hart (1890) 25 QBD 42
Quick v Taff-Ely Borough Council [1986] QB 809; [1985] 3 WLR 981;
[1985] 3 All ER 321; (1985) 84 LGR 498; [1985] 2 EGLR 50; 276 EG 452, CA
Ravenseft
Properties Ltd v Davstone (Holdings) Ltd
[1980] QB 12; [1979] 2 WLR 897; [1979] 1 All ER 929; (1978) 37 P&CR 502;
[1979] 1 EGLR 54; [1979] EGD 316; 249 EG 51, DC
Shepherd
Homes Ltd v Sandham [1971] Ch 340; [1970] 3
WLR 348; [1970] 3 All ER 402; (1970) 21 P&CR 863; [1970] EGD 583; 215 EG
580
This was a
hearing of a motion by order by which the plaintiff, Minja Properties Ltd,
sought orders against the defendant tenants, Cussins Property Group plc, Ronald
George Davies, Peter Leslie Steer, John Collin Gregory and Anthony Charles
Southgate, to allow access to carry out repairs to a building.
Martin Rodger
(instructed by Lovell White Durrant) appeared for the plaintiff; Wayne Clark
(instructed by Keenlyside & Forster, for the first defendant, and Ashurst
Morris Crisp, for the second to fifth defendants) represented the defendants.
Giving
judgment, Harman J said: I
have before me a motion by notice dated January 12 1998. The motion seeks
orders in the form of a minute. That provides for an injunction which, as
drafted, requires the first defendant to provide access to the plaintiff, its
servants, agents and workmen to the premises, being the seventh and eighth
floors of Eagle Star House in Newcastle upon Tyne, for the purpose of carrying
out the removal and replacement of all window frames. Second, to require the second,
third, fourth and fifth defendants to provide similar access to the sixth floor
for the same purpose. In semantic terms, that is a mandatory injunction.
The writ in
the action was issued the same day, on January 12. It was endorsed with a
statement of claim which pleads the two leases, called the Gleese lease and the
Cussins lease, which reflect the varying defendants. It claims a declaration
that the plaintiff is entitled under clause 3(2)(b) of the leases to replace
the window frames, an order in the same terms as the motion to permit the
plaintiff to do the work and a declaration that the actual costs are
recoverable under subclauses in the leases.
The dispute
arises out of the state of a building now called Eagle Star House, formerly
Sunley House, in Newcastle upon Tyne, which was built in the late 1960s or
early 1970s. The building was fitted with steel-framed windows. The windows all
open on a central pivot, as I understand them, and the glazing is held in a
frame. The window surround or casement, not being the frame of the window which
holds the glass, is aluminium.
The evidence
is that the frames are all suffering from corrosion. The plaintiff alleges
further that the frames have warped, causing gaps between the casement and the
frames which allow, in extreme cases, rain and snow to penetrate and, in any
case, draughts to penetrate. The defendants agree that the steel window frames
are corroded. They do not admit that they are warped. There are photographs
showing substantial quantities of masking tape applied to the inside of the
windows which seem only consistent with there being serious ingress of draughts
of cold air from outside, which would be consistent with the window frames
being warped. But I cannot, on a motion and upon affidavit evidence, decide
that they are in fact warped. The reason for the corrosion and rust of the
window frames is that the frames, when made and when installed, were not of
adequate quality in that they were not treated either with some form of zinc
rustproofing or with a chemical treatment which might have been effective to
prevent rusting.
The building
itself is a nine-floor building. The bottom six floors are occupied by one of
the multifarious departments of HM government. Two of the upper three floors
are occupied by one of the defendants and one by the other. The lease of one of
the defendants comes to an end in June 1998, that is, it only has some four and
a bit months still to run. The other comes to an end on Lady Day, the March
quarter day, in 1999. So that has just over a year and a month to run.
The evidence
from the defendants is that neither of them intend to remain in the premises,
but to quit on the expiry of their terms. The evidence also is that the first
defendant is not any longer physically using the premises, although it has
goods of its own stored in them and is in occupation of them, but not in the
sense of having people doing typing and using offices for the purposes for
which offices are normally used.
The evidence
also shows that the government agency occupying the lower six floors has
considered the position under its lease and its liability under the service
contract. There is in evidence a letter dated December 8 1997 from the receivers
of the plaintiff, which states that the contract cost for the work of
refurbishing the outside of the whole of the building, replacing all the
windows and making them double glazed is something of the order of £400,000,
plus the cost of double glazing. The letter states that the additional cost of
the double glazing on the relevant six floors would be £6,400-odd and the cost
of the works for which the government agency accepts liability out of the
£400,000-odd is £264,000. One can thus see that the additional cost caused by
the double glazing is a very small percentage of the total cost. Indeed, on
these figures a really quite trivial sum of money.
That letter
was answered on December 9 by the estate surveyor of the Valuation Office. He
accepts that the Secretary of State is content with the proposals in the letter
I have just referred to, acknowledges that the cost will be included in the
service charge, is in favour of double glazing rather than single glazing and
is prepared to pay the additional sum for the double glazing, but says the
double glazing is an improvement and should be regarded as a tenants’
improvement. Subject to that, the work was to go forward.
On December 12
1997 the contract was placed, and on all the evidence was placed on the terms
referred to in the letter I have quoted. The result has been that the building
is, as I understand it, scaffolded and the work on the first six floors is
proceeding now. The question is: are the contractors to carry out the work on
the upper three floors, for which purpose they have to obtain access and for
which purpose an injunction is sought to ensure that access is obtained? The
covenant in issue is, first, to be understood by considering the tenants’
covenant, which is clause 2(3):
The tenant covenants
to keep in good and substantial repair and condition the interior of the
demised premises including floor finishes and ceilings or glass in the windows,
door frames for fixtures, fittings and appurtenance damaged by insured risks
only accepted.
That covenant
is in the not uncommon form of both applying to good and substantial repair and
good and substantial condition, but it is limited to the interior and the
glass. It is referred to by Mr Wayne Clark, for the tenants, because, in
construing a lease, one must construe a lease as a whole, and one must try to
make the obligations upon the one party, the landlord, correspond with the
obligations on the other party, the tenant, so that the two dovetail together.
The landlord’s
covenant is in clause 3:
The landlord
covenants with the tenant: …
(b) to
maintain and keep in good and tenantable repair the main walls, roof, roof
beams, structural floors, structure, window frame (excluding glass) and the
exterior of the building, sewers and drains, serving the building.
That is an
obligation ‘to maintain and keep in good and tenantable repair’ and has to be
matched up with the obligation ‘to keep in good and substantial repair and
condition the interior of the demised premises’.
The further
covenants are that the landlord, having that obligation, has the benefit of a
tenant’s covenant under clause 2(12):
to permit the
landlord, surveyors and agents (with or without workmen) at all reasonable
hours in the daytime to enter upon the demised premises for any of the following
purposes: …
(2) to amend
any defects and execute any repairs the tenant has failed to do …
(4) to
execute repairs to the building or the common parts thereof.
Those
therefore are the varying obligations on the parties. For my part, I would have
preferred — and Mr Martin Rodger has told me that he has redrafted the form of
the injunction — that the injunction should follow as closely as possible the
form of the covenant which is sought to be enforced.
This,
therefore, is a case where the court is being asked to say by way of order what
the parties have said themselves by way of contract, which is very close to Doherty
v Allman (1878) 3 App Cas 709, where the House of Lords said that
judgment in such cases is almost always granted for a negative covenant.
However, in this case although the covenant is ‘to permit the landlord … to
enter’, which merely requires a standing-by and allowing the entry, yet it is a
covenant which requires the tenant to do some act or permit entry. It would, in
my judgment, be unrealistic to suggest that the tenant has simply not to
obstruct entry. There will have to be some comparatively small, mandatory
effect, in that the tenant will have to do something, unbolt a door and allow
it to be opened, and not to obstruct it, and the covenant therefore does
require him to do something, although not very much.
That drives
one back to the question which has been very well argued here: does this
covenant include a right to replace the window frames by entirely new units
which are to be double glazed window frames? The landlord accepts that since
the removal of the existing window frames will almost inevitably either break
or make unusable the existing glass which is the tenants’ responsibility, the
landlord in this case, having effectively impaired the glass, will be
responsible for replacing it. As I understand the proposal, it is that normal
double glazed pivoting units shall be installed in an aluminium frame,
close-fitting, preventing any draughts and preventing the normal chill effect
of single pane windows.
I am referred
to a series of authorities on what is ‘repair’, which the court has seen very
many times. They start of course with Proudfoot v Hart (1890) 25
QBD 42 and the familiar ruling that ‘to keep a house in good tenantable repair
the tenants’ obligation is to put and keep the premises in such repair as
having regard to the age, character and locality of the house, would make it
reasonably fit for the occupation of a tenant of the class who would be likely
to take it’. That has stood as the guiding principles for the last 100 years.
There is no doubt that the obligation to keep in repair involves an obligation
to put into repair.
Second, there
is Lurcott v Wakely [1911] 1 KB 905, the Court of Appeal decision
which is always cited in these matters. That is a case about a demolition
(under a dangerous structure notice, we would call it now) of a wall to be
taken down to ground-floor level and then rebuilt in accordance with modern
requirements. The house was very old and the dangerous condition of the wall
was caused by old age. The wall could not have been repaired without rebuilding
it. The question was as to whether the defendants were liable under the
covenant to recoup to the plaintiff the cost of taking down and rebuilding the
wall.
The judgments
are all, in my view, to the same effect. I always notice that the Master of the
Rolls, at p912 of the judgment, in dealing with repair and what it means, says:
it is said
that the covenants to repair in this lease are very wide and that in many cases
repair necessarily involves, not repair strictly so called, but renewal. If an
earthenware pipe breaks, you can only repair it by renewing it. Or again, if
window frames become rotten and decayed, you cannot repair them except by
renewing; and many other instances might be given.
In this
particular case, where the whole matter turns on window frames that have become
corroded by rust due to their inadequate rustproofing in the beginning, it
seems to me closely analogous to wood windows which have become rotten because
the wood was unduly soft when installed, and over many years (in this present
case I think it is something like 25 years) the condition has deteriorated and
the frame is no longer serviceable. Thus the observation of the Master of the
Rolls that renewal is a form of repair is very close to the point.
Fletcher
Moulton LJ is frequently cited, particularly at p915, where he refers to the
phrase:
You must
endeavour to give to every phrase in a covenant to repair its proper weight and
meaning.
There was, in
his view, an obligation in that covenant to repair, which includes putting into
a proper state by replacement of parts. He says at the top of p919:
I have no
doubt that the repair includes the replacement of parts. Of course, if a house
had tumbled down, or was down, the word ‘repair’ could not be used to cover
rebuilding … But, so long as the house exists as a structure, the question
whether repair means replacement, or, to use the phrase so common in marine
cases, substituting new for old, does not seem to me to be at all material.
Many, and in fact most, repairs imply that some portion of the total fabric is
renewed, that new is put in place of old.
Buckley LJ, at
the foot of p923, framed the famous words, cited, I see, in the current edition
of Woodfall:
Repair always
involves renewal; renewal of a part; of a subordinate part … A roof falls out
of repair; the necessary work is to replace the decayed timbers by sound wood;
to substitute sound tiles or slates for those which are cracked, broken or
missing …
He goes on
lower down on p924:
Repair is
restoration by renewal or replacement of subsidiary parts of a whole. Renewal,
as distinguished from repair, is reconstruction of the entirety, meaning by the
entirety not necessarily the whole but substantially the whole subject-matter
under discussion.
Those
authorities which, it seems to me, clear the odd doubt, establish that it is
beyond question that renewing a part of a building by replacing it is within
the obligation of a covenant to repair that thing; though you are not, to use a
different word, ‘patching up’ and leaving there the original thing with some
bits added to it, but taking out the original thing and putting in a new one,
that is ‘repair’, so long, always, as one is dealing with only part of the
whole structure.
Mr Clark, for
the defendants, referred to and relied upon Quick v Taff-Ely Borough
Council [1986] QB 809*. The covenant there in issue was the Housing Act
covenant, a covenant by the lessor to keep in repair the structure and exterior
of the dwelling-house, including drains, gutters and external pipes. The
judgment of Dillon LJ, at p817C, refers to the judge’s judgment and the reasoning
based on Ravenseft Properties Ltd v Davstone (Holdings) Ltd
[1980] QB 12†, and Elmcroft Developments Ltd v Tankersley-Sawyer
(1984) 270 EG 140‡, which shows, said Dillon LJ, that:
*Editor’s
note: Also reported at [1985] 2 EGLR 50
†Editor’s
note: Also reported at [1979] 1 EGLR 54
‡Editor’s
note: Also reported at [1984] 1 EGLR 47
works of
repair under a repairing covenant … may require the remedying of an inherent
defect in a building … [they] also show that it is a question of degree whether
works which remedy an inherent defect … may not be so extensive as to amount to
an improvement or renewal of the whole which is beyond the concept of repair.
That line of
reasoning exactly accords, of course, with the observations in Lurcott v
Wakely, although that authority was not there cited. Dillon LJ then
referred to the replacement of windows and the provision of insulation for the
lintels which did not amount to an improvement or renewal of the whole. The
replacement of the windows to alleviate an inherent defect was a repair which
the council would carry out. The lord justice goes on:
But … this
reason begs the important question. It assumes that any work to eradicate an
inherent defect in a building must be a work of repair, which the relevant
party is bound to carry out if, as a matter of degree, it does not amount to a
renewal or improvement of the building.
He goes on
lower down below, between G and H:
The covenant
implied under section 32 … is an ordinary repairing covenant.
It applies to
all landlords. He says over the page at p818, opposite D:
the key
factor in the present case is that disrepair is related to the physical
condition of whatever has to be repaired, and not to questions of lack of amenity
or inefficiency.
In that case
the question of fact arose because the premises were subject to extreme
condensation and bad living conditions, but there was no suggestion that there
was something in the building which was physically out of condition.
To my mind, as
I put to Mr Clark during argument, that is exactly different from this present
case where what I am considering are window frames which are admittedly
seriously corroded and, allegedly and apparently, but I cannot determine for a
fact, are also so warped that they do not even keep out the wind and the air
from entering the internal offices. That is to say that it is the very thing
itself, the window frames, which are rusted. They are rusted, it is true,
because of an inherent defect, but none the less it is the thing itself which
is to be repaired, the window frame, which is defective by reason of rust.
Further, that is a progressive condition which has gone on for years and years
and has reduced the window frames to their present undesirable state.
The evidence
at one point suggested that rusting is a mere discoloration of the surface of
the window frame. As I understand the factual position, and I believe I am
entitled to find this as a fact, rusting is not a mere discoloration of the
surface. It involves an actual erosion of the structure of the iron which is
rusted, the change of the ferrous metal into iron oxide which can be rubbed off
and which leaves behind the metal itself thinner and lighter for the part which
has oxidised. If the process goes on long enough, rusting can and does produce
actual holes in a piece of steel. That being so, it is quite clear that rusting
affects the substance of the window frame itself.
Mr Clark also
referred to and relied heavily on the remarkable case of Post Office v Aquarius
Properties Ltd [1987] 1 All ER 1055*. That case, which will be notorious to
all lawyers practising in this field, resulted in a declaration that the
premises were not out of repair. Although the basement frequently could only be
used by those either in gum boots or perhaps thigh waders, none the less, the
basement was in perfectly good repair, a conclusion which, I confess, one would
find at first blush surprising. But, upon examination, one finds that there was
a very remarkable physical state of facts in that case. The floor of the
building was of porous concrete structure. Water could and did enter the
building and the cellar through the floor. Despite the fact of the need to wade
in the cellar when it was invaded by the water table, there was no physical
change in the walls or floor of the cellar itself. One would have thought that
the walls and the plaster would have crumbled or at least the electrical
fittings would have deteriorated and the electric cables would have been
damaged. But that was not the evidence. There was no physical damage by reason
of the water ingress and egress. There remained a porous floor, there remained
the impossibility of utilising the cellar for any real purpose which would make
sense. But there was not in fact any physical defect in the thing alleged to be
out of repair, that is the porous floor. It remained as it always had been:
unchanged and unaltered. In such circumstances the Court of Appeal, allowing
perhaps intellect to take precedence over any other processes, determined that
there was no want of repair, no breach of repairing covenant. Since the thing
was not out of repair there could be no obligation under covenant to put it
into repair.
*Editor’s
note: Also reported at [1987] 1 EGLR 40
It will be
apparent from the way that I have expressed it, that I do not think that a
decision in Aquarius Properties has any relevance to this case at all on
the facts. It is no doubt good law in itself. I do not and could not attempt to
depart from it. But it is a case where that which was said to be out of repair
had not itself deteriorated or changed in any way. In this case the window
frames themselves have, over time, deteriorated in a very serious way and, if
left in their present state, will go on deteriorating.
Thus I come
quite clearly to the conclusion that this is a case where the window frames
themselves are out of repair and that the obligation upon the landlord to
repair them has arisen. Accordingly, it is entitled under the covenant to be
permitted by the tenants to have access to the premises for the purpose of
doing a repair.
The matter
then turns upon the question: is the repair proposed so radical and extravagant
as to amount to creating a new thing in place of what was there and not a mere
replacement, such as a new pipe or a new window or a new slate would be, for
the former window that was there? The objection made is that what is proposed
is aluminium frame double glazed windows. Using such commonsense and such
knowledge of the world as I possess, I am reasonably confident that these are
frames with two channels in them to take two panes of glass with a fixed gap
between them, which gap will provide a certain degree, depending upon the gap,
of insulation. Such a form of frame does not on the evidence seem to be very
substantially different from the former single glazed steel frame that was
there before.
Mr Clark did
not argue for a moment that it would not be perfectly proper to replace these
steel frame single pane windows with aluminium frame single pane windows, even
though aluminium frames may be — I do not say are — more expensive than steel
frames would be because the metal is a more expensive material. That, he
accepted, would be an improvement of degree, not in any sense radical enough to
amount to renewal in the sense in which it is used in Lurcott v Wakely
rather than repair.
However, the
evidence given on this point is that there is an estimate by one of the two
sets of tenants who are quantity surveyors, who therefore may be expected to be
in a position to make the most gloomy forecasts on any building project that
can properly be constructed, that this cost might amount to as much as £50,000.
That estimate is to be contrasted with the evidence upon the other side, which
is positively that the difference in cost of tender is of the order of £10,000
out of a cost of £140,000.
The evidence
is, it is said, inadequate because the tender document is not produced. I
notice that the defendants have not, as they were fully entitled to do under
Ord 24 r 10, called for the tender documents as being documents mentioned in an
affidavit, which are therefore or could have easily been available to them.
None the less, they are not presently in evidence on either side.
Also in
evidence are the letters passing between the receivers as agents for the
landlord and the chief valuation officer in respect of the lower six floors of
the building. Those specifically give a name of a contractor and a tender
amount to be tendered for the whole of the work and a proportion of that work
attributable to the lower six floors of the building. They give a figure for
the additional cost of double glazing over single glazing that would be there,
which, it was to be accepted, was to be counted as a tenant’s improvement. That
amount was something over £6,400, out of a figure of the order of £260,000.
That being so, it is clearly a trivial fraction of the total cost, and the
figure of £6,400 for the lower six floors of the building supports the figure
of £10,000, sworn to by a deponent in this matter as being the actual
additional cost for the plaintiff as against the informed but none the less
speculative view of the defendants who say that it might be up to £50,000.
There is ample
evidence for me to be convinced here that the additional cost of using frames
that will take double glazing and, in due course, of installing two panes of glass
where one was before, since it will fall to the landlord who has damaged the
glass to replace with new glass, is of a comparatively trivial amount, a
question purely of degree and quite incapable of being an alteration of a kind
so as to constitute a renewal and not within the covenant of repair.
Thus I
conclude that the landlord has demonstrated that the works it proposes are
within the covenant, are necessary to be performed and are a reasonable and
proper method of carrying out its covenant to repair. It follows that the
tenant ought to permit access to it.
I turn to the
residual questions raised by the state of these proceedings. First, this being
an interlocutory matter, the question is raised: is the undertaking in damages
to be given by the plaintiff an adequate protection to the tenants in case at
trial it should turn out, on facts which I find at present wholly unforeseeable
and improbable, that these were not works of repair? If that were so, it would
be necessary for the plaintiff to bear the costs of an inquiry as to damages.
The plaintiff
itself appears to be a £100 Gibraltar company with receivers appointed over its
property. I am not, I hope fairly obviously, much contented with an undertaking
in damages from a company like that. However, I am offered by Mr Rodger a
supplement to that in the form of what loosely, but not accurately, would be
called a guarantee. That is to say, Mr Rodger appearing in this capacity for
the receivers, is prepared to offer an undertaking that if and in so far as the
plaintiff fails to meet any order for damages upon an inquiry as to damages
arising out of the injunction, they will make good the deficiency up to the
assets which are or which, between now and trial, will come to their hands in
the course of their receivership.
The accounts
before me show that last year the receivers were able to pay to their mortgagee
something of the order of £600,000. The figures show that they paid that amount
last year. It is quite true that this year they will have to pay the cost of
the repairing contract which is in process, which they placed on December 12,
but it is equally clear that the Secretary of State for the Environment is to
bear something like two-thirds of that cost under an obligation already in
place and in evidence in this case. Thus the amount which the receivers would
have to pay on the contract is far less than the sort of income which they had
last year.
On that
footing, and remembering that the receivers have in their hands the buildings
themselves, it seems to me that the undertaking by the receivers that they will
make good a deficiency, if there be one on an inquiry as to damages, is ample
security for the defendants as to the cross-undertakings in damages. On the
other hand, I have to consider whether the need to now seek this order is
caused by the plaintiff’s own conduct.
It is quite
clear that the plaintiff has known since 1995 that these windows were badly out
of repair and that it was in breach of its repairing obligation. It attempted,
by and via the receivers as agents for the plaintiff, to avoid that consequence
by disposing of the building to some other freeholder who would then himself be
liable upon the covenants in the lease and have to do the necessary repair
works. It failed three times to sell the premises. It then decided that, that
being so, the only thing to do was to put the buildings into a decent state of
repair in order that it might be able to realise the security. That, in a
sense, shows that there has been a delay in bringing this matter on to the
court, in that the plaintiff never attempted to tackle this business and
require the defendants to give access for the purpose of doing these works
during the summers of 1996 and 1997, and, this work being work to the outer
sides of the upper floors of a building in the bleak and exposed area of
Newcastle upon Tyne, might be work which one would think was better done in the
summer than in the winter.
None the less,
it was not simply that that delay amounts to delay in enforcing its rights such
as to disable the plaintiff from obtaining interlocutory relief. The actions it
took, although against the background of protests from the tenants that they
were not to be liable for the costs of doing the work, was not against the
background that the work itself was to be frustrated and admission would not be
given. The objections are all to cost.
It seems to me
that it was not necessarily natural for the landlord to think that he would
have to resort to court in order to be able to get on and do the work, when it
came to bite the bullet and face the need to do it. The question is whether the
delay in coming to the court, coupled with the placing of the contract for this
work, which is now halfway through, during the time of delay, can be said to be
such delay as to disable the plaintiff from interlocutory relief.
The plaintiff
was told on November 19 that the work could not be done at the tenants’ expense
by one of the two sets of defendants. On the other hand, on November 24 there
was a more uncompromising letter that the tenant was not prepared to allow
access for such works. Thereafter, further negotiations which I have seen, and
to which I have already referred, took place with the Secretary of State for
the Environment’s officers, the Valuation Office, leading to an agreement on
December 8 and 9 which disposed of issues as to a very large part of the first six
floors of this building. That led to the placing of the contract, upon the
tenders which had been obtained, on December 12 1997.
The delay from
November 24 on does not seem to me, in the face of the fact that that was only
in respect of parts of the building, to show that the landlord was not
intending to proceed, and was proceeding with reasonable diligence, with its
claim. It had nine floors to deal with. It was dealing with three different
parties, one of whom had something like two-thirds of the building (the bottom
six floors). A satisfactory agreement was reached with that tenant and the
contract was then placed. That does not seem to me to indicate dilatory conduct
or a lack of bona fide approach to the whole matter.
The solicitors
for the tenants did not write until December 22. As Mr Rodger has observed, it
was perhaps right to wait, before launching no doubt expensive High Court
proceedings, until legal advice had been taken, since the legal advice might be
to the tenants that their refusal to allow access was legally unmaintainable
and that the covenant to repair on the facts of this case, remembering all the
classic authorities to which I have briefly referred, would inevitably cover
the work proposed. Had such advice been given on December 22, it would not have
been necessary to go to court at all.
Once one gets
to December 22, the delay is trivial. Last year, December 22 was the Monday before
Christmas, which left very few days before Christmas. There is then the total
interruption of business until after the start of the New Year. The first
complete working week of this year started on Monday, January 5. The writ was
issued one week later on January 12 and a notice of motion was given that day.
No notice of motion between December 22 and January 12 would have brought this
case on one day sooner than it has come on. There plainly had to be a motion by
order. In all the circumstances, there is, in my view, no sufficient delay to
disentitle the landlord to the relief which otherwise it is entitled to on an
interlocutory basis.
Finally, there
was the question of whether the fact that this is in form and to some small
degree in substance a mandatory order should alter the court’s approach to the
matter. In my belief, the decision of Megarry J in Shepherd Homes Ltd v Sandham
[1971] Ch 340, as illustrated by Hoffmann J’s decision in Films Rover
International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670, leaves
one with reasonably clear guidance. The court will not grant an order which
will cause substantial interference with defendants, as a mandatory order will
do, without being very confident that it is likely that that order will be made
and upheld at a trial.
The court has
to have a high degree of satisfaction that the order is necessary and proper
and, further, that the order does not invade the rights of the defendants more
than is necessary. In this case the order invades the rights of the defendants
very little. It requires them to give access. They are not expected to do any
of the extensive amount of moving of furniture and equipment and so on, which
will be necessary inside the premises’ windows in order to get at those windows.
That work is all to be undertaken by the landlord’s contractors. The landlord’s
contractors have a method of working which involves sequential working, office
by office, so that any one office is only out of action for something like 36
or 48 hours. Consequently, the minimisation of inconvenience is plainly there.
I am offered undertakings that the method statement will be performed by the
contractors, so far as the landlord is capable of compelling the contractors so
to do, which on an ordinary form of contract will be possible. It is a form of
method which has in fact been employed in another building in the same context
as this and caused that building what was described by the tenant recipient of
the disturbance as ‘minimal disturbance’.
Therefore, I am
satisfied that there is a very high degree of probability that this order would
have been made at trial; that it is an
building; that the tenants are protected by adequate cross-undertakings in
damages; and that the amount of interference with them has been minimised to
the greatest possible extent. Thus the order, although mandatory and requiring
them to permit access, does not impose on them any extensive obligation to do
any acts at all, all of which acts are provided for by the plaintiff’s
contractors.
For all those
reasons I conclude that the order in the modified form which Mr Rodger has
mentioned, which I have not seen, is an order which should be made and I will
so order.
