Landlord and Tenant Act 1954 — Interim continuation under section 64 — Application for extension of time for appeal refused — Whether proceedings on appeal for purpose of section 64 — Whether tenancy determined three months after county decision
On August 9
1988 the appellant tenant’s application under Part II of the Landlord and
Tenant Act 1954 for a new tenancy was dismissed on the ground that the
respondent landlord satisfied section 30(1)(f) of the Act. Ultimately
the tenant applied to the Court of Appeal for an extension of time, and for
leave to appeal that decision. On January 24 1989 the Court of Appeal dismissed
those applications. On February 17 1989 Judge Barnett made an order of
possession against the tenant, deciding that there were no proceedings on
appeal and that the tenancy came to an end three months after the county
decision of August 9 1988 pursuant to section 64 of the Act. The tenant
appealed contending that her applications for an extension of time and for
leave for appeal should be construed as proceedings on appeal so that her
tenancy was continued under section 64 until three months after the Court of
Appeal’s decision on January 24 1989.
consisting of a failure to serve a notice of appeal in time and a failure to
comply with the RSC Ord 59, r5, as to the manner of lodging an appeal. There
never was an appeal. The proceedings in relation to the application for leave
to extend time amounted to no more than an attempt to commence an appeal. If an
extension of time for appealing is granted, then there are proceedings on
appeal and section 64 will apply. But no extension was granted.
The following
case is referred to in this report.
Zenith
Investments (Torquay) Ltd v Kammins Ballrooms Co Ltd (No 2) [1971] 1 WLR
1751; [1971] 3 All ER 128, CA
This was an
appeal by the tenant, Patricia Joy Spalding, from a decision of Judge Barnett
in Ipswich County Court, in possession proceedings by the landlord, Shotley
Point Marina (1986) Ltd.
Edward Irving
(instructed by Turner, Martin & Symes) appeared for the appellant; David
Holgate (instructed by Edwin Coe) represented the respondent.
Giving
judgment, Sir Stephen Brown P said: This is an appeal from the judgment of Judge
Barnett of February 17 1989 at Ipswich County Court. He then made an order
granting the plaintiff, Shotley Point Marina (1986) Ltd, possession of the
Peninsular Boatyard at Shotley within 10 days of his order.
The
proceedings before the learned county court judge were the sequel to
proceedings in relation to an application by the defendant, as tenant, for a
new tenancy of the Peninsular Boatyard at Shotley pursuant to Part II of the
Landlord and Tenant Act 1954. Those proceedings have a lengthy history and,
indeed, they eventually came (in the context to which I shall refer in due
course) to this court in January 1989. The history of the matter is briefly
recited in the judgment of the learned judge. He sets out the relevant dates.
It is relevant to state that after proceedings which extended over a substantial
period of time the preliminary point which had been ordered to be tried in the
original county court proceedings was decided on August 9 1988. The issue
before the county court judge, Judge Sheerin, on that occasion was whether the
landlords had made out the necessary grounds for opposing an application by the
tenant for a new tenancy under the provisions of section 30(1)(f) of the
1954 Act. The tenant had opposed the landlord’s case, relying in particular
upon section 31A of the Landlord and Tenant Act 1954. The effective issue at
the hearing before the learned county court judge on that occasion was whether
the landlord had, in effect, defeated the defence raised under section 31A and
had made out his case under section 30(l)(f). On August 9 1988 Judge
Sheerin decided the matter in favour of the landlord and, effectively, that
resulted in a decision against the application for a new tenancy by the tenant.
Thereafter the
matter became embroiled in the procedural provisions relating to an appeal. The
learned judge had in fact abridged the time for appeal to the Court of Appeal
from four weeks to 15 days. The time for appeal in fact expired. The notice of
appeal was not served upon the defendant’s solicitor at the appropriate address
in time, and although this defect in the circumstances was regarded as being of
a highly technical nature the notice of appeal was nevertheless not in fact
served in time. Thereafter a series of errors by the tenant’s solicitor
aggravated the situation. There was a failure on the part of the tenant’s
solicitor to comply with Ord 59 of the Rules of the Supreme Court which
regulate the setting down of an appeal and the lodging of the necessary
documents together with the payment of the appropriate fee to the Civil Appeals
Office. Ultimately an application to extend time for appealing was made, but
that application was not in fact made until some two months after the original
time for the giving of notice of appeal and the lodging of the appropriate
documents had expired. The learned registrar of Civil Appeals referred the
application by the tenant to extend the time for appealing to this court, and
it was that matter which was heard over a period of two days concluding on
January 24 1989. I presided over the hearing of that appeal. The leading
judgment was given by Glidewell LJ, with which the other members of the court
agreed. The court dismissed the tenant’s application for extension of time and
leave to appeal.
It is right
that I should say that in hearing the application by the tenant the court
considered, in addition to the procedural questions, the merits of the proposed
appeal and came to the conclusions and expressed the clear view, that there was
no reasonable prospect of success in the appeal on the merits. There had been,
so the court also held, prejudice to the landlords as a result of the delay
that had ensued by reason of the tenant’s failure to comply with the necessary
procedural requirements. This was described as prejudice of substance not
merely minimal.
The matter
which came before the learned county court judge at Ipswich in February 1989
related to the application and effect of
interim continuation of tenancies pending the determination by the court of an
application for a new tenancy. Section 64(1) provides:
(1) In any
case where —
(a) a
notice to terminate a tenancy has been given under Part I or Part II of this
Act or a request for a new tenancy has been made under Part II thereof; and
(b) an
application to the court has been made under the said Part I or the said Part
II, as the case may be; and
(c)
apart from this section the effect of the notice or request would be to
terminate the tenancy before the expiration of the period of three months
beginning with the date on which the application is finally disposed of,
the effect of
the notice or request shall be to terminate the tenancy at the expiration of
the said period of three months and not at any other time.
(2) The
reference in paragraph (c) of subsection (1) of this section to the date
on which an application is finally disposed of shall be construed as a
reference to the earliest date by which the proceedings on the application
(including any proceedings on or in consequence of an appeal) have been
determined and any time for appealing or further appealing has expired, except
that if the application is withdrawn or any appeal is abandoned the reference
shall be construed as a reference to the date of the withdrawal or abandonment.
When this
court, on January 24 1989, refused the application of the tenant for an
extension of time in which to appeal from the judgment of Judge Sheerin, of
August 9 1988, the position was that if there was no appeal and if the
proceedings in relation to the application for an extension of time and for
leave to appeal could not be construed as proceedings ‘on’ appeal, then the
three-month period provided for by section 64(1) of the Landlord and Tenant Act
1954 would have expired on December 7 1988. If, on the other hand, the proceedings
which came before this court in January 1989 are properly to be construed as
proceedings ‘on’ an appeal within subsection (2) of section 64, then it is
agreed that the three-month period would run as from January 24 expiring on
April 24 1989. Thus the dispute before the learned county court judge on
February 17 in effect involved consideration of the question whether the
tenancy had finally come to an end on December 7 1988 or, alternatively,
whether it would continue until April 24 1989. The issue before the learned
county court judge involved the construction of section 64(2), and in
particular of the words ‘including any proceedings on or in consequence of an
appeal’.
Mr Edward
Irving in his well-formulated submissions to this court — which have been assisted
by a carefully drawn skeleton argument — submits that the application for an
extension of time should be considered as ‘proceedings on an appeal’ within the
meaning of the section. He has argued that merely because procedural failures
had necessitated an application for an extension of time in order to bring an
appeal before the court, this should not prevent the proceedings relating to
the application for leave being regarded as proceedings on an appeal and
thereby bringing into play the provisions of section 64(1) resulting in the
continuation of the tenancy for a period of three months from the dismissal of
the application for leave to appeal.
The learned
county court judge held that in the circumstances, there were no proceedings on
appeal. He expressed it in his judgment in the terms to be found at p10 of his
judgment: ‘This was never successful’ — that is the proceedings to launch the
appeal — ‘which meant that the appeal was never more than inchoate’. He
accordingly rejected the arguments put before him by Mr Irving and made an
order for possession upon the basis that the tenant’s right to occupy the
holding had already expired in December 1988 at the latest.
Mr Irving has
submitted that it is important in considering section 64 to bear in mind the
importance to the parties, both landlord and tenant, of their being able to be
aware of the time when the tenant’s right to occupy the premises will expire.
He says that it would not be possible to know in advance when the continuation
period would come to an end unless the interpretation for which he contends is
given to the meaning of ‘proceedings on an appeal’. He has submitted that
anomalies would result from adopting a different approach. He cited the case of
Zenith Investments (Torquay) Ltd v Kammins Ballrooms Co Ltd (No 2)
[1971] 1 WLR 1751 in support of his contention that procedural irregularities
should not be allowed to determine the position. In point of fact the issue in
that case was not the issue which is before this court. As Sachs LJ said at
p1756D of the report:
The point for
decision in this appeal is as to whether the tenant’s application to the
Torquay County Court of September 4, 1968, was ‘an application to the court
made under … Part II’ of the Act of 1954:
The matter
which came before that court, eventually determined after an appeal to the
House of Lords, concerned the original application for a new tenancy which was
procedurally irregular. But nevertheless, as Russell LJ said at p1756 B of the
report:
The correct
answer in this case is that the proceedings up to and including the House of
Lords are correctly described as proceedings on an application under Part II …
the application was, as it turned out, vulnerable to a defence because its
making was by section 24 subsection (1) subjected to the provisions of section
29(3): but it was nevertheless such an application.
That was the
issue which was then determined. There was no question before the Court of
Appeal on that occasion which gave rise to consideration of subsection (2) of section
64. There clearly had been proceedings ‘on appeal’ right up to the House of
Lords in that case. The case is cited by Mr Irving in support of his
proposition that irregularities, whether in the making of an original
application under the Landlord and Tenant Act or irregularities in complying
with the procedural rules regulating the initiation and conduct of appeals,
should not be allowed to defeat the tenant’s position.
He has also
invited attention to the terms of section 58 of the Supreme Court Act 1981 and
to the phraseology of subsection (1) of section 58:
Any
jurisdiction exercisable in any proceedings incidental to any cause or matter
pending before the civil division of the Court of Appeal and not involving the
determination of an appeal may, if and so far as rules of court so provide, be
exercised (with or without a hearing) by a single judge of that court, whether
in court or in chambers, or by the registrar of civil appeals.
His point on
that is that that section provides for the hearing of proceedings incidental to
any cause or matter pending before the civil division of the Court of Appeal,
which would include applications for an extension of time. He seeks to argue
that proceedings ‘in‘ the Court of Appeal amount to the same thing as
proceedings ‘on‘ an appeal in the terms of subsection (2) of section 64.
He has
valiantly sought to persuade the court that if it is of the view that the
learned county court judge was correct there would be unforeseeable
difficulties in the future because of the possibility that anomalous situations
might be encountered or created. For my part, I find the issue to be a very
short and succinct one. In this case an appeal was never in fact commenced. The
Court of Appeal was never seized of any appeal. That situation came about
because of procedural irregularities which required the would-be appellant to
obtain leave to institute and pursue an appeal. Those procedural irregularities
consisted, first, of a failure to serve a notice of appeal correctly in time,
and, second, a failure to comply with the provisions of r5 of Ord 59 of the
Rules of the Supreme Court as to the manner of lodging an appeal. That
subsequently involved a delay of some two months before the application for an
extension of time was in fact made. Because of those deficiencies the appeal
never commenced and, in the result, at the hearing in January 1989 this court
upheld the submissions of the would-be respondent and refused leave to appeal.
Accordingly, in my judgment, there never was an appeal in this case. The
proceedings in relation to the application for leave to extend time amounted to
no more than an attempt to commence an appeal.
In those
circumstances, I am quite unable to give to the words ‘proceedings on an
appeal’ the interpretation contended for by Mr Irving. The matter, in my
judgment, was correctly decided by the learned county court judge, who gave a
well-reasoned and careful judgment. For these reasons, I would dismiss this
appeal.
Agreeing, Ralph Gibson
LJ said: Section 64 subsection (2) refers to ‘the earliest date by which
the proceedings on the application
determined and any time for appealing or further appealing has expired …’. Mr
Irving submitted that provided the tenant applies for extension of time for
appealing within three months of the judgment of the county court they are
‘proceedings on an appeal’ within the meaning of section 64(2) until that
application for extension of time has been finally disposed of.
I do not
accept that submission. It seems to me that, if an appeal is not commenced in
due time, there is no appeal in being in which there can be any proceedings for
the purposes of section 64(2) unless or until extension of time for appealing
is granted. If an extension is granted, then, for the purposes of section 64,
there is an appeal on which proceedings will or may take place.
Mr Irving
contended that that conclusion must be wrong because, if it were right, it must
follow that in a case where the period of three months mentioned in section
64(1) expired before the grant of extension of time, then any ensuing appeal
would be purely academic. The tenancy must, he said, have terminated
irretrievably at the end of the three-month period and could not be brought
back into existence again by the grant of the extension of time for appealing.
I cannot
accept that submission either. It seems to me that, upon proper construction of
section 64(2), if this court grants an extension of time for appealing the appeal
is then in being and in the event the tenancy would determine upon final
disposition of that appeal. Difficulties may arise in a particular case, but
they do not seem to me to be of such a nature as to require this court to apply
any different construction of the provisions in question. The consequences of
granting an extension of time in any particular case may be relevant to the
exercise of the court’s discretion in granting or withholding the extension.
Accordingly, since there was no extension of time for leave to appeal granted
by this court in the proceedings, there were no proceedings on an appeal.
Therefore, for the reasons also given by Sir Stephen Brown P, I would dismiss
this appeal.
Butler-Sloss LJ agreed and did not add
anything.
Appeal dismissed.
cases on this subject see p73
