Landlord and Tenant Act 1954–Validity of section 25 notice –Omission of notes prescribed in the statutory form–Whether notice ‘substantially to the like effect’ as the statutory form–Authorities reviewed–Omitted notes irrelevant in the particular case–Notice held valid–County court judge’s decision reversed
This was an
appeal by William Fordham Tegerdine, the plaintiff in an action under the
Landlord and Tenant Act 1954 before Judge Head in the Lowestoft County Court.
Judge Head decided in favour of the defendant, Cyril Brooks, that a notice
served by the plaintiff as landlord under section 25 of the 1954 Act was
invalid because it did not include certain notes prescribed by the Landlord and
Tenant (Notices) Regulations 1957 as amended. The subject-matter of the tenancy
was a fish-and-chip shop at 65 Pakefield Street, Lowestoft, let by the
plaintiff to the defendant on a weekly tenancy.
J Ross Martin
(instructed by Hobbs & Durrant, of Lowestoft) appeared on behalf of the
appellant, but was not called on; R J Mitchell (instructed by Bailey, England
& Co, of Lowestoft) represented the respondent.
Giving
judgment, CAIRNS LJ said: This is an appeal from a decision of His Honour Judge
Head in the Lowestoft County Court in a case under the Landlord and Tenant Act
1954. The question was whether a landlord’s notice determining a tenancy of
business premises under section 25 of that Act was valid under the Act and the
regulations made under it. The premises concerned were a fish-and-chip shop at
65 Pakefield Street, Lowestoft. They were let by the plaintiff landlord to the
defendant tenant on a weekly tenancy. The landlord desired to terminate the
tenancy but was willing for the tenant to have a new tenancy. He gave his
notice accordingly. The defendant tenant relied simply on the allegation that
the notice was not a valid one. The learned judge held that it was not a valid
notice and accordingly gave judgment for the defendant. The plaintiff now
appeals.
Section 25 of
the Act of 1954 provides in subsection (1):
The landlord
may terminate a tenancy to which this Part of this Act applies
that is to
say, a business tenancy
by notice
given to the tenant in the prescribed form specifying the date at which the
tenancy is to come to an end. . . .
It is provided
under subsection (5) of that section that:
A notice
under this section shall not have effect unless it requires the tenant, within
two months after the giving of the notice, to notify the landlord in writing
whether or not, at the date of termination, the tenant will be willing to give
up possession of the property comprised in the tenancy.
Subsection (6)
provides:
A notice
under this section shall not have effect unless it states whether the landlord
would oppose an application to the court under this Part of this Act for the
grant of a new tenancy and, if so, also states on which of the grounds
mentioned in section thirty of this Act he would do so.
Section 66(1)
provides:
Any form of
notice required by this Act to be prescribed shall be prescribed by regulations
made by the Lord Chancellor by statutory instrument.
Regulations
were made accordingly and have been amended from time to time, and the
regulations current at the time in question were the Landlord and Tenant
(Notices) Regulations as amended by the Landlord and Tenant (Notices)
Regulations 1973. Those regulations provide by paragraph 4:
The form in
the appendix to these regulations, or forms substantially to the like effect
shall be used for the following purposes; that is to say
and then
subparagraph (7):
A notice
under the provisions of Section 25 of the Act, being a notice terminating the
tenancy to which Part II of the Act applies, shall . . . be in Form 7.
Form 7 as
prescribed by the amending regulations sets out the form of the body of the
notice, together with certain notes numbered from 1 to 7, and note no 4 begins
with the words:
The court has
no power to make an order for the grant of a new tenancy if the landlord,
having stated in his notice that he will oppose an application to the court on
one of the grounds specified in the Act, establishes that ground to the
satisfaction of the court
and then
proceeds to set out what those grounds are. Note 5 provides:
If the only
grounds for opposing an application for the grant of a new tenancy stated in
paragraph 3 of this notice are grounds set out in (a), (e), (f) and (g) above,
and so on,
with further provisions as to the position where grounds are given for opposing
an application for a new tenancy. Note 7 is:
The term
‘landlord’ in this notice does not necessarily mean the landlord to whom the
rent is paid: it means the person who is the landlord for the purposes of Part
II of the Act. The term ‘business’ includes a trade, profession or employment
and any activity carried on by a body of persons whether corporate or
unincorporate.
Now the notice
given in this case was in all respects in accordance with the regulations,
except that note no 4 and note no 5 were omitted, the note numbered in the
regulations 6 was included as note 4, and note no 7 was omitted. The reason why
notes 4 and 5 were omitted was that these notes refer only to the case where
the landlord is opposing the grant of a new tenancy, and the notice given in
this case expressly stated that the landlord would not oppose the grant of a
new tenancy. Note no 7 was omitted because in
landlord, and no uncertainty as to whether a business was carried on at the
premises. It is not a case where any other parties were concerned in any way in
relation to the premises as head landlord, mesne landlord or anything of that
kind, but simply the landlord who was the plaintiff in these proceedings and
the defendant who was the tenant. Quite obviously, with premises let as a
fish-and-chip shop there could be no doubt that they were let for business
purposes. The learned judge, however, placing a strict construction upon the
language of the regulations, held that the notice was not a valid one.
I think that
what this court has to consider is as to whether in the circumstances of this
case it could properly be said that the form was substantially to the like
effect as the form set out by the regulations. In my view, it was, because
there could be no purpose in setting out in that notice notes which were
irrelevant.
We have been
referred to certain authorities. The first was a decision of Barry J in Barclays
Bank Ltd and Another v Ascott [1961] 1 All ER 782, where the
landlords stated in their notice of termination that they would not oppose the
grant of a tenancy if the tenant could find a guarantor, but did not make it
clear whether they were opposing it or not, and, anyhow, did not indicate, as
they were required to do if they were opposing it, any grounds under section 30
of the Act. The learned judge held, and I have no doubt at all in those
circumstances that he rightly held, that the notice was not a valid one. But he
did certainly by obiter dictum express at p 786 a view which seems to me
to be a right one. He said:
It appears to
me that the real gist of these decisions
he had
referred to some earlier decisions
was
summarised by Hodson LJ in Bolton’s (House Furnishers) Ltd v Oppenheim.
As I understand Hodson LJ’s judgment, the question which the court really has to
consider is whether the notice given by the landlord has given such information
to the tenant as will enable the tenant to deal, in a proper way, with the
situation (whatever it may be) referred to in the notice. It is clear, I think,
from the authorities which have been cited to me that this notice should be
construed liberally, and provided that it does give the real substance of the
information required, then the mere omission of certain details, or the failure
to embody in the notice the full provisions of the section of the Act referred
to, will not in fact invalidate the notice.
I adopt that
statement as being a correct one. Bolton’s (House Furnishers) Ltd v Oppenheim
[1959] 1 WLR 913 was in fact not a decision in relation to compliance with the
regulations as to the form of the notice, but was a corresponding question as
to setting out the grounds under section 30 upon which the landlord was
relying.
Two other
cases were cited in the court below. One is the case of Re Bleacher’s
Association Ltd’s Leases, Weinbergs Weatherproofs Ltd v Radcliffe Paper
Mill Co Ltd [1957] 3 All ER 663. That was a judgment of Harman LJ, which
has not been relied on in this court. It was a case where the notice quite
plainly on the face of it did not begin to be a notice in accordance with the
provisions of the Act, and, indeed, it was conceded that it was not. The other
case referred to below was Lewis v MTC (Cars) Ltd [1974] 1 WLR
1499, a decision of Templeman J, where, so far as concerns this case, the
relevant question was whether the failure to strike out certain words in a
printed form of notice rendered the notice invalid. Templeman J at the foot of
p 1501 of the report said:
Paragraph 3
of the prescribed form which was used in this case contains two sentences
enclosed in brackets, and intended to be alternatives. The first sentence runs
as follows: ‘[I would not oppose an application to the court under Part II of
the Act for the grant of new tenancy . . .]’
The second sentence is in these terms ‘[I would oppose an application to
the court . . . under Part II of the Act for the grant of a new tenancy on the
ground that. . . .]’ Then there is left
a space in which the grounds should be specified. The form or the notice is so
designed that the landlord may strike out the sentence which does not accord
with his intention, and if he intends to oppose, he must set out the statutory
grounds for his opposition in the space provided. In the notice now in dispute
neither sentence was struck out, but there was added in the space which follows
the second sentence the following
and then there
are set out the grounds of opposition. It goes on:
No one
reading that notice can be in the slightest doubt; the landlord accidentally
failed to strike out the first sentence and intended to oppose an application
to the court for the reasons set forth in the notice.
Therefore, so
far as it goes, that decision was a clear decision by the learned judge that
the omission to strike out something which in order to comply with complete
strictness with the regulations should have been struck out did not invalidate
the notice.
We were
referred to two further authorities, one a decision of Shaw J (as he then was),
Bond v Graham (1975) reported in 236 ESTATES GAZETTE 563, where
there was not a strict compliance with the form of a notice inasmuch as the
reference to rateable value was wrong, because under the earlier regulations
the rateable value that was relevant was £500, but that figure had been changed
to £2,000, and then after that to £5,000. In the notice the out-of-date figure
of £2,000 was given, but it was immaterial because the rateable value in the
circumstances of that particular case was below £2,000. Shaw J held that the
notice was a valid one, and in my judgment rightly so held, although it could
be said that the notice was not strictly in compliance with the form in the
regulations.
The case
principally relied upon by Mr Mitchell on behalf of the tenant here was Sun
Alliance and London Assurance Co Ltd v Hayman [1975] 1 WLR 177. That
was a decision of this court, concerned with whether or not a notice under this
section was valid having regard to the fact that it referred to the ‘receipt’
of the notice, whereas under regulations, as amended, it required to refer to
the ‘giving’ of a notice. It is perfectly true that in that case the court said
that it was immaterial whether or not the tenant had been misled by the form of
the notice. I, of course, accept that proposition. It is immaterial whether the
tenant has been misled. But it is, in my opinion, relevant whether the
departure from the form prescribed is such as to be immaterial to the whole of
the facts of the case, and if it is, in my view, such departure is not one
which will render the notice a notice which does not substantially conform with
the regulations.
For those
reasons, I would allow the appeal.
Agreeing,
ROSKILL LJ said: I would only add a few words because we are differing from the
learned judge and out of respect for Mr Mitchell’s clear argument. He began his
submissions, as it were, by apologising for taking a technical point. A good
point does not become a bad point merely because it is technical. The point
here is technical, but that does not of itself prevent it from being good. The
learned judge thought that it was a good point. He thought it was a good point
because the landlord’s surveyors, in no doubt a desire for economy of language
and time, omitted from the notice which they gave on behalf of their client
three of what are called the statutory notes, notes 4, 5 and 7. Those omitted
notes, as my Lord has said, were wholly irrelevant to the matter to which the
notice related, because the landlord was not at that stage going to oppose the
grant of a new tenancy. But because that irrelevant matter was omitted it is
said that the notice was bad. I confess that I should be reluctant to give a
decision which made it necessary to hold that the law required that wholly
irrelevant matter had to be included in a form in order to make a notice good.
I do not think we are compelled as a matter of construction of the regulations,
or as a matter of authority, to reach that lamentable result. If,
a relevant respect, then it does not matter that the tenant has not been misled
by that inaccuracy. But if the omission or inaccuracy is wholly irrelevant, as
was the omission of notes 4, 5 and 7, then a fortiori there can be no
question of the tenant being misled and I see no reason why we should hold here
that this was a bad notice.
The learned
judge was referred to a number of authorities which his very clear note lists.
He was not, however, directly referred to what I regard as the most important
of the authorities, the decision of this court in Bolton’s (House Furnishers)
Ltd v Oppenheim [1959] 1 WLR 913. The judgments of Hodson and Harman
LJJ show the approach which is to be adopted in these cases. That case was
referred to in the later decision of Barry J, to which my Lord referred, Barclays
Bank Ltd and Anr v Ascott, which was drawn to the attention of the
learned judge. Like my Lord, I would respectfully adopt as a correct statement
of the law the passage in the middle of p 786:
It is clear,
I think, from the authorities which have been cited to me that this notice
should be construed liberally, and provided that it does give the real
substance of the information required, then the mere omission of certain
details, or the failure to embody in the notice the full provisions of the
section of the Act referred to, will not in fact invalidate the notice.
That seems to
me to be an admirably compendious and correct statement of the law. Applying
that, it seems to me plain that the plaintiffs were entitled to the order
sought.
I too would
allow the appeal and enter judgment for the plaintiff and order possession.
Also agreeing,
BRIDGE LJ said: The question is a short question of construction. Was the
notice served by the plaintiff under section 25 of the Act a notice
substantially to the like effect as the notice prescribed in Form 7 of the
relevant regulations? What is the
meaning of that phrase? I think its
meaning is: ‘Was the notice to the like effect as to its substance?’ What then is the substance of such a
notice? That question is to be answered
in the light of section 66(2) of the Act, which provides:
Where the
form of a notice to be served on persons of any description is to be prescribed
for any of the purposes of this Act, the form to be prescribed shall include
such an explanation of the relevant provisions of this Act as appears to the
Lord Chancellor requisite for informing persons of that description of their
rights and obligations under those provisions.
The substance,
then, of a notice given for any particular purpose and in any particular
circumstances under the Act is that which informs the recipient of his rights
and obligations under the relevant provisions of the Act. One can test the
argument for the respondent in this case by asking the question: If the omitted
notes had been included, would they have formed any part of the substance of
the notice? The answer to that question
is clearly ‘No.’ To have solemnly set
out, as note 4 requires, all the grounds upon which a landlord can oppose the
grant of a new tenancy in a notice in which the landlord has already said he
will not oppose such grant in any event cannot be a matter of substance; it
would be wholly irrelevant. Like my Lords, in reaching that conclusion I would
endorse as correct and accurate the succinct statement of principle cited by
Cairns LJ from the judgment of Barry J in Barclays Bank Ltd and Anr v Ascott.
I would also
refer to a couple of sentences in the judgment of Harman LJ in the case of Bolton’s
(House Furnishers) Ltd v Oppenheim [1959] 1 WLR 913, at p 920, where
he said:
The reason
why notices of this sort are so elaborate is again tenderness for the tenant.
The tenant is supposed to be a person who is either almost illiterate or so
poor that he cannot get advice, and, therefore, he is to be shown very
carefully everything which may help him to resist the landlord’s demands to get
his own property back.
Could
inclusion of any of these omitted notes here have helped this tenant, however
poor or illiterate he may have been, to resist the landlord’s demands to get
his property back? As regards notes 4
and 5, which are concerned with grounds of opposition to an application for a
new tenancy, the answer is clearly ‘No.’
The answer in the case of note 7 is perhaps not quite so crystal clear,
but, as I understand it, the only conceivable purpose of telling the tenant
that the landlord does not necessarily mean the person to whom he pays rent is
because under the definition of ‘landlord’ in section 44 of the Act the
landlord for the purpose of the Act need not necessarily be the immediate
landlord; but if the landlord, as here, is in fact the immediate landlord, that
piece of information is not going to be of any interest or assistance to the
tenant.
I confess that
I do not really understand what is the purpose of the second part of note 7,
which sets out the full statutory definition of ‘business.’ The only earlier parts of the statutory form
which refer to ‘business’ are the heading, ‘Landlord’s Notice to Terminate
Business Tenancy,’ and notes 3 and 6, in which, for certain purposes, it may be
material to inquire, where premises are only partly occupied for business
purposes, what parts are so occupied. In relation to the definition of
‘business,’ this tenant is not ‘a body of persons corporate or unincorporate’;
he is an individual, Mr Cyril Brooks. He is not carrying on a profession, but
he is carrying on a trade. Could it conceivably be said, when he occupies, as is
common ground, the whole premises let to him as a fish-and-chip shop, that he
was in any way denied relevant information by not being told that ‘business’
includes a trade? I cannot see that it
could.
I also would
allow the appeal.
The appeal
was allowed with costs in the Court of Appeal and below on Scale 4. The
judgment given below for the defendant was set aside and judgment was given for
the plaintiff for possession within two months from January 21 1977 with mesne
profits.
