Landlord and Tenant Act 1954 — Judicial review — Whether county court had power to issue application for interim rent retrospectively
The applicant,
who held a tenancy of business premises from COIF Nominees Ltd (‘the
landlord’), which was determined by a notice served on June 1 1989 under
section 25 of the Landlord and Tenant Act 1954, issued an originating
application for a new tenancy in Gravesend County Court on September 14 1989.
By letter dated February 6 1990 the landlord’s solicitors, Lovell White Durrant,
sent an application for the determination of an interim rent to the county
court. That application was not dealt with by the court, it was not issued and
no notice was given to the applicant. Although the parties agreed terms for a
new tenancy in March 1990, the applicant discontinued proceedings for a new
tenancy in July 1990. It then became apparent that the applicant had not been
served with the interim rent application and by a letter dated August 17 1990
the landlord’s solicitors requested the county court to issue the application
with an order that it be deemed issued on February 6 1990. The county court
complied and backdated the application. The applicant applied, with leave of
Pill J granted on December 21 1990, for judicial review of the decision of the
county court contending that the court had no power to determine
retrospectively the date that it issued the application for interim rent.
the application was quashed. No administrative act or process was performed by
the county court until August 1990 and the interim rent application merely lay
in the court unattended from February to August. During that period it had no
effect and the proceedings as defined in section 24A of the 1954 Act did not
commence until August 1990. It followed that any interim rent due from the
applicant in respect of the premises fell to be calculated only from the date
on which the application was actually issued by the court.
The following
case is referred to in this report.
United
Motor Finance Corporation Ltd v Turner [1956]
2 QB 32; [1956] 2 WLR 730; [1956] 1 All ER 623, CA
This was an
application by judicial review of a decision of the respondent, Gravesend
County Court, to issue and backdate an application for an interim rent under
the Landlord and Tenant Act 1954 for service on the applicant, David John
Patchett.
Geoffrey Ames
(instructed by Andrew J Kilby, of Northfleet) appeared for the applicant; the
respondent did not appear and was not represented.
Giving
judgment, POTTS J said: This is an application for judicial review of a
decision or order of the chief clerk of Gravesend County Court made on a day in
August 1990 whereby he purported to issue an application by the landlord, COIF
Nominees Ltd, for an interim rent pursuant to section 24A of the Landlord and
Tenant Act 1954 backdated retrospectively to February 6 1990 in proceedings
brought by the applicant against the landlord for a new tenancy under Part II
of the Act.
Leave to apply
was granted by Pill J on December 21 1990. The relief sought is an order of certiorari
to remove into the High Court and a declaration that the decision or order
was unlawful.
The applicant
was at all material times the business tenant of COIF Nominees. On June 1 1989
solicitors acting for the landlords wrote to the applicants enclosing, on the
landlord’s behalf by way of service, a notice given under the provisions of the
section 25 of the Landlord and Tenant Act 1954 terminating the applicant’s
tenancy from December 9 1989. On September 14 1989 the tenants issued an
originating application for a new tenancy. This was sent to the registrar of
Gravesend County Court as appears from letter of September 14 1989.
Negotiations
in respect of the new tenancy had commenced as between landlord and tenant and
thereafter they continued. Progress was made. However, in February 1990
solicitors acting for the landlords wrote to the court. By a letter dated
February 6 1990 they stated:
We now enclose
an application for interim rent together with a copy for service by the court
on the applicants at the address for service stated in their originating
application.
We should be
grateful if you would acknowledge safe receipt.
The notice of
application enclosed is in these terms:
We wish to
apply to the Court under section 24A of the Act to determine a rent which it
would be reasonable for the Applicant to pay while the tenancy continues by
virtue of section 24 of the Act.
Dated the 6th
day of February 1990
Lovell White
Durrant.
Underneath the
signature of the landlord’s solicitors these words appear:
This section
to be completed by the court
To the
Applicant
Take notice
that this application will be heard by the Registrar at . . . on a date to be
fixed.
If you do not
attend the Court will make such Order as it thinks fit.
This
application was not dealt with by the court. It was not issued and no notice
was given to the tenants. The tenants remained in ignorance of it for a
substantial period of time.
In March 1990
the parties came to an agreement as to the terms for a new lease. Those terms
can be seen in a letter dated March 28 1990. On July 10 1990 the applicant’s
solicitors wrote to the landlord’s solicitors. They said:
I regret to
inform you that I have now received instructions from my client that owing to
an unforeseen and rapid decline in sales following the opening in Gravesend of
a new store and the local authority’s proposal to the pedestrianisation of New
Road he has reluctantly concluded that the likelihood of him being able to
trade successfully from the premises in the future is remote and that it would
not be in his interests to take up the new
new lease and I enclose herewith a notice for discontinuance.
On August 15
1990 Lovell White Durrant wrote to the applicant’s solicitors in these terms:
An
application to the Court for interim rent was made on 6 February and that is
why we have calculated the figures as specified in our letter of 9 August
— I interpose
to say that that letter contained a calculation of what it was said was due
from the tenant to the landlord by way of rent —
It was agreed
that rent should be charged at £22,000 per annum and we think it is reasonable
that your client should pay this sum from 6 February to the date of
termination.
On August 16
1990 the applicant’s solicitors replied to this letter. That letter states:
I am, indeed,
surprised to learn that you made an application for an interim rent bearing in
mind that the application has not been served and that you did not even have
the courtesy to tell me that you were making the application.
The
applicant’s solicitor then drew the attention of the landlord’s solicitors to
the note on p1618 of The County Court Practice.
Thereafter,
Lovell White Durrant were in contact with the county court. They wrote on
August 17 a letter which describes their activities in February 1990.
That states:
We refer to
our letter of the 6th February 1990 and to our telephone conversation with a member
of your office this morning. We sent under cover of the letter of 6th February
an interim rent application in triplicate pursuant to Section 24A of the
Landlord and Tenant Act 1954 Part II. On the 9th February, a member of your
office spoke to Mr Davies of our office asking whether a date should be fixed
by the Court or whether the application should be made with a date to be fixed.
We replied that we would prefer that the matter be left for a date to be fixed
pending further negotiations. As is normal in lease renewal proceedings.
We now
understand that the interim rent application was not issued and therefore not
served upon the applicant David John Patchett.
The applicant
through his solicitor has now discontinued the action and therefore the lease
will expire on the 10th October 1990. It is now an issue as to whether the
applicant pays rent at the rent reserved under the expiring lease or at the
interim rent from the date of the application. The applicant maintains that
since he has not been served with the interim rent application he should not be
required to pay the interim rent. We consider that it is a result of the error
by the Court in not issuing the application and serving it upon the applicant
that he now refuses to pay the interim rent.
Therefore
please let us know whether you will arrange for the Court to issue the interim
rent application now with an order that it be deemed issued on 9th February
1990 and serve it upon the applicant at the Court’s own cost, or whether we
must apply for that order.
[Emphasis
supplied]
It would seem
that thereafter an officer of the court acted on the advice or request
contained in the last paragraph quoted.
The letter
from the county court to Lovell White Durrant states:
Thankyou for
your letter of 17 August. We are unable to agree the court plaint number. Can
you please phone the court with the correct number.
Thereafter, on
August 31, Lovell White Durrant wrote to the chief clerk:
Further to our
letter of 17th August we have now received from our clients a copy notice of
application which you have forwarded to them. This is undated.
We would be
grateful if you could inform us as to whether you issued the application
retrospectively as requested.
The copy has
on it these words:
The matter
was put before the Reg. on receipt of your letter of 17.8.90. He stated that
application to be issued retros, because you are in fact covered by the
original N8. It would appear the notice is undated.
It is clear
from other documentation that some time in August the notice of application
sent by the landlord’s solicitors to the county court in February was dated and
issued. It is equally clear that it was backdated. At p27 of the first bundle
is to be found a copy of the notice with the court stamp at the top-right corner
and a date stamp February 9 1990 bottom left. There is also enclosed with the
papers a copy of an envelope addressed to Andrew J Kilby the applicant’s
solicitors. That was post-marked August 28 1990. As I understand it, that
envelope contained the notice of application in the form described.
On October 5
1990 the county chief clerk at Gravesend County Court wrote to the applicant’s
solicitors as follows:
Your letter
of 14th February has been placed before the Registrar who states: ‘It is clear
that the court failed to issue the application in error and should have done so
for a date to be fixed’.
This was in
response to a letter sent by the applicant’s solicitors, which was in these
terms:
It appears
from information given to me by the respondent solicitors that the application
for an interim rent was issued by the court retrospectively, the court having
failed to issue the application when first requested to do so by the
respondent’s solicitors in February. In view of the fact that the action of the
court in issuing the application retrospectively have seriously prejudiced my
client I would be grateful if you let me know the basis and authority on which
the learned Registrar ordered the retrospective issue of the application
particularly in view of the fact that my client has discontinued his
application for new tenancy before the application was in fact issued. I
consider the application for judicial review and therefore appreciate an early
response.
Today I have
had the advantage of hearing submissions made on behalf of the applicant by Mr
Ames who has, so far as possible, drawn my attention to all relevant authority.
His task in this regard has perhaps been made more exacting as a result of the
failure on the part of the county court to be represented to assist the court.
I have of course heard no submissions from Lovell White Durrant, whose request
in their letter of August 17 1990 may well have resulted in the county court
taking the course that it did.
Section 24A of
the Landlord and Tenant Act 1954 is in these terms:
(1) The landlord of a tenancy to which this Part
of this Act applies may, —
(a) if he is given notice under section 25 of
this Act to terminate the tenancy; or
(b) if the tenant has made a request for a new
tenancy in accordance with section 26 of this Act;
apply to the
court to determine a rent which it would be reasonable for the tenant to pay
while the tenancy continues by virtue of section 24 of this Act, and the court
may determine a rent accordingly.
(2) A rent determined in proceedings under this
section shall be deemed to be the rent payable under the tenancy from the date
on which the proceedings were commenced or the date specified in the landlord’s
notice or the tenant’s request, whichever is later.
The County
Court Practice 1992 at p1443 contains the following
note to this section:
‘Proceedings
were commenced’
These words
in sub-s (2) refer to the proceedings under the section to determine an interim
rent and not the tenant’s application for a new tenancy: Stream Properties
Ltd v Davis [1972] 2 All ER 746, [1972] 1 WLR 645; Victor Blake
(Menswear) Ltd v City of Westminster (1978) 38 P&CR 448. So, if
the application to determine an interim rent is made in the landlord’s answer
to the tenant’s application for a new tenancy, the interim rent, if granted,
will run from the date of the answer, Thomas v Hammond-Lawrence [1986]
2 All ER 214 . . .
It follows
that had the landlord’s notice of application taken effect on, for example,
February 6 1990 the rent determined in proceedings under section 24A would have
been deemed to be the rent payable under the tenancy from that date.
It is crucial
to this application, therefore, to determine when proceedings were commenced.
Mr Ames submits that proceedings were commenced when the application was
issued. He submits that the county court had no power to determine that date
retrospectively. I accept his submission that any interim rent ordered must run
from the date of commencement of proceedings
the court: United Motor Finance Corporation Ltd v Turner [1956] 2
QB 32. More than a mere application to the court is necessary.
Mr Ames has
drawn my attention to the practice of issuing a summons for determination of an
interim rent ‘on a date to be fixed’ in the Chancery Division. This practice is
approved in that division and has the authority of a practice direction, which
states in terms that a summons for determination of interim rent should be
served promptly. In my judgment, promptness is also of the greatest importance
in the county court. Mr Ames submits it is the only way in which the tenant can
tell if the application is made. The landlord has an unfair advantage over the
tenant in any negotiations under way if it is otherwise. I accept this
submission.
It is to be
emphasised in the present case that these applicants were in negotiation with
the landlords for a considerable period of time when ignorant of the issue of
the notice of application. They issued their notice of discontinuance unaware
of the fact that the landlords had attempted to take this course.
I am satisfied
that no administrative act or process was performed by the county court in
respect of the landlord’s application until August 1990. As the chief clerk
said in his letter of October 5 1990: ‘the court failed to issue the
application in error’.
Between
February 1990 and August 1990 the application lay in the court unattended to.
In my view, during that period it was without effect. It could only take effect
when the court took steps to issue it. I am satisfied that this was not done
until a day in August 1990 when the court placed on the notice of application,
and wrongly placed on the notice of application in my judgment, the date
February 9 1990 together with the date of the court stamp.
It follows
that the notice of application was ineffectual until 1990. It further follows
that proceedings as defined in section 24A of the Landlord and Tenant Act 1954
did not commence until August 1990. It further follows that any interim rent
due from the applicant to the landlord in respect of the premises in question
only falls to be calculated from the date on which the application was actually
issued by the court.
The
application succeeds. I now go on to consider the appropriate relief.
Application
allowed with costs.
