Alleged breach of lease covenant — Former tenant’s appeal — Claim that lease was prematurely terminated — Construction of clause — Judgment for respondents
This was an appeal by Mr Ernest George Parkinson, dental surgeon, of Wieland Road, Northwood, Middlesex, against the decision of Mr Justice Sellers in the King’s Bench Division in giving judgment for Barclay’s Bank Ltd, on a claim by Mr Parkinson for damages for breach of covenant in a lease of premises at Station Road, Harrow.
Mr Parkinson, who had a 21-years lease of premises above a branch of the defendant’s bank for the purpose of carrying on his profession as a dental surgeon, complained that the lease had been wrongfully and prematurely terminated by the Bank at the end of 14 years, as a result of which he had suffered financial loss by having to purchase more expensive and less convenient premises, in Lyon Road, Harrow.
The Bank denied the alleged breach and this was upheld by Mr Justice Sellers.
Mr Parkinson, appealing against this decision, asked for judgment for £958 damages and costs or a new trial.
Mr FW Beney, KC, and Mr Gilbert Dare (instructed by Kimbers, Williams & Co), represented the appellant; Mr H Heathcote-Williams KC, and Mr Rodger Winn (instructed by Baddeley, Wardlaw & Co) appeared for the respondents.
Mr Beney said the point raised in the case concerned the proper construction of a term in the lease granted to Mr Parkinson by the Bank on March 28, 1934, at a rent of £200 a year. The term stated that the lessors should be able to determine the lease at the expiration of 14 years if they required the premises for the purpose of the business carried on by them.
The judge, counsel said, apparently regarded it sufficient for the lessors to come within the terms of that clause if they required the premises, not immediately, but probably at some time during the remaining seven years of the 21 years term and if they required only part of the premises.
Mr Beney submitted that the date of the Bank’s requirement of the premises should be when notice to terminate the lease expired. The second point was whether it was sufficient for the lessors to show that they required only part of the demised premises.
The Bank served notice to quite on Mr Parkinson on May 27, 1947, to expire on March 25, 1948. Mr Parkinson surrendered the premises on February 11, 1948. They were subsequently let to a firm of solicitors. Mr Parkinson had been offered a six-monthly tenancy, which he did not accept.
Counsel for the respondents were not called upon to reply.
Giving judgment, Lord Justice Somervell said that after the Bank had served notice to quit on May 27, 1948, Mr Parkinson had an interview with the Bank’s representatives. They never suggested that they would want the demised premises or any part of them for immediate occupation.
It was made quite clear to Mr Parkinson that the Bank did not want the premises at once. They offered him a six-monthly lease on the basis that they would want the premises some time in the seven years of the lease remaining.
Mr Parkinson did not accept the offer, but found other premises and moved. He now claimed that the Bank had no right to terminate the lease at the end of 14 years, as they did not require the premises for the purpose of the business carried on by |page:286| them within the meaning of the clause concerned.
Having referred to Mr Beney’s contentions, Lord Justice Somervell said that in his view the natural meaning of the words in dispute was “if the Bank required the premises for the purposes of the business during the period of seven years remaining at the end of 14 years”, a period over which they would otherwise be deprived of possession of the property. He thought the document showed that this was in the minds of the parties.
He added that it would be a rather absurd provision in a sense if the construction was that the Bank had no right to end the lease at the expiration of 14 years, though it might be quite clear that they would want the premises for their own purposes in a year or so, but could not say they wanted them forthwith.
Lord Justice Somervell agreed that the Bank did not established that they would require the whole of the premises, but he did not think the evidence showed they would only require one room.
It has been argued that as the clause did not say “if they required the premises or any part of them”, it could not be operated unless they wanted the whole of the premises. He did not agreed with that. He thought the judge’s decision was right and that the appeal should be dismissed.
Lord Justices Cohen and Denning concurred and the appeal was dismissed with costs. Leave to appeal to the House of Lords was refused.
