Landlord and tenant — Plaintiffs were tenants and defendants landlords of property used as a licensed betting office — Dispute as to placing of signs advertising the betting office — Betting office situated on first floor of a building fronting on to Park Lane, the approach to the office being by means of an external staircase which was not included in the demise — The signs in question were placed above the entrance leading from the pavement to the staircase — After a change of landlords difficulties arose — The new landlords purported to revoke consent for the signs and in fact removed one sign — Tenants commenced present action — Question as to basis of an enforceable right for tenant to maintain the signs — A covenant in the lease provided that no sign (inter alia) should be attached to or exhibited in, on or to the premises so as to be seen from the exterior without the previous consent of the lessor, ‘which shall not be unreasonably withheld in respect of a sign stating the lessee’s name and business or profession’ — Held (1) that this covenant could properly be construed as granting a right to exhibit a sign stating the lessee’s name and business or profession and being suitable for approval by a reasonable lessor; (2) that, on the basis of the wording of the covenant and the surrounding circumstances, this could apply to signs placed not on the demised premises but on the ground-floor property of the lessor; and (3) that the present landlords’ predecessors in title had granted a consent which could not be withdrawn during the term unless given subject to an express reservation for the purpose — Plaintiffs therefore succeeded on this ground — Alternative grounds put forward by the plaintiffs did not in the event need to be relied on, but were in any case rejected by the judge, namely, a suggestion based on Francis v Hayward that the signs could be treated as a corporeal appurtenance, estoppel under two different headings, and a claim for rectification — A suggestion by the defendants that more than one sign was illegal under the Betting (Licensed Offices) Regulations 1960 was likewise rejected — Declaration in plaintiffs’ favour
In this action
the plaintiffs, William Hill (Southern) Ltd, tenants, sought relief against
their landlords, Cabras Ltd, in regard to the latter’s interference with signs
exhibited in connection with the licensed betting office carried on by the
plaintiffs on the first-floor property demised to them at 27 Park Lane,
Mayfair, London W1.
C Sparrow QC
and K J Farrow (instructed by Titmuss Sainer & Webb) appeared on behalf of
the plaintiffs; G Godfrey QC and S Bickford-Smith (instructed by Wallis &
Co, of Bromley) represented the defendants.
Giving
judgment, GOULDING J said: This is an action brought by a well-known bookmaker,
William Hill (Southern) Ltd, against a Manx company called Cabras Ltd. The
plaintiff is tenant and the defendant is landlord of property in London, namely
a licensed betting office in Park Lane, W1. The office is on the first floor of
a building fronting on to Park Lane and is approached by an external staircase
from the pavement or sidewalk. The staircase is not included in the present
lease. In this action the plaintiff asserts a right to maintain on the
defendant’s property not comprised in the lease two signs, placed above the
entrance leading from the pavement to the staircase and bearing the plaintiff’s
name in conspicuous characters. The defendant recently removed one of the
signs. It was agreed in interlocutory proceedings to let the other remain until
judgment herein.
The primary facts
are not in serious dispute. One question canvassed in evidence, namely the
importance of the signs, is a matter of degree. On that, I find that a
conspicuous advertisement of the whereabouts of the plaintiff’s premises,
easily visible from the
fact, in my judgment, follows inescapably from the provisions of the Betting,
Gaming and Lotteries Act 1963, coupled with the physical situation of the
premises. Section 10 of the Act prohibits advertisements indicating the
location of any licensed betting office except within the office itself or,
subject to certain statutory regulations, on premises giving access to it; and
this particular betting office is situated above shop premises on the ground
floor which project about 15 ft from the front wall of the first and higher
floors of the building. I accept on the evidence the allegations in the
statement of claim that at all material times the success of the plaintiff’s
business carried on from the premises has depended upon the plaintiff’s ability
to advertise the existence of the office to passers-by and that such
advertisement can only be by a sign at ground-floor level.
Mr Sparrow for
the plaintiff argues that, given such a finding of fact, I must hold the
defendant’s interference with one of the plaintiff’s signs to be a derogation
from grant, but I think the matter is not as simple as that. The premises being
let for a betting office, and ground-floor advertisement being necessary to the
conduct of the business, Mr Sparrow’s contention might be well founded if the
demise stood alone, but it is in reality part of an elaborate lease containing
many covenants and other provisions for the benefit of landlord or tenant. To
see whether there is a derogation from grant it is thus necessary to consider
the qualified grant actually made to the plaintiff. The court must consider not
only whether the plaintiff needs the right to maintain the signs, but also
whether its officers and professional advisers have succeeded in obtaining what
it needs. Mr Godfrey for the defendant maintains that at all material times the
plaintiff has had no more than a revocable licence to exhibit signs on the
defendant’s retained property, revocable because (he says) it is neither
granted under seal nor given for valuable consideration.
The plaintiff
holds the premises under a lease dated June 20 1978 and made between Python
Properties Ltd of the one part and the plaintiff of the other part for a term
of 20 years from Michaelmas 1977 at a yearly rent of £9,250, reviewable every
five years. When the lease was granted, the plaintiff was already in occupation
of the premises, having acquired an earlier lease thereof in 1967. I do not
find it necessary to go into the previous history, but it is important to
observe that at the date of the present lease the plaintiff was actually
enjoying the use of two signs above the entrance to the staircase. The older of
the two was an illuminated box sign immediately above the entrance displaying
the name ‘William Hill’ in a plane parallel to the frontage of the building. It
has been referred to in argument as ‘sign no 1’, and that is what I will call
it. The other sign, which is still there, is a smaller illuminated box,
attached to the wall a foot or two higher. It projects from the wall in a plane
at right angles to the frontage and shows the name ‘William Hill’ on either
side. It has been conveniently called ‘the finger sign’.
Before I read
the provisions of the lease, I must mention certain material communications
that took place during the negotiation thereof. When revising a draft of the
lease, the plaintiff’s solicitors drew attention to the signs by a marginal
note to one of the tenant’s covenants which regulated the display of advertisements.
The note is as follows:
Please
confirm that the Lessee’s present signs are approved.
At the same
time the plaintiff’s solicitors inserted in the draft a right for the lessee to
use in common with the lessor the staircase giving access to the betting
office, such staircase having been included in the demised property by the
earlier lease but not by the current draft. In a letter dated February 6 1978
the solicitors for Python Properties Ltd, the then lessor, after referring to a
discussion which had taken place on February 3 and to instructions they had
subsequently received, dealt with the draft lease in great detail. They
accepted the insertion of the right to use the staircase. As to signs, they
said this:
There should
not be a problem about this and in any event the particular covenant dealing
with this is open to the extent that the Landlord’s consent is not to be
unreasonably withheld.
I shall refer
to these communications as ‘the preliminary exchange’.
The lease, as
I have said, is dated June 20 1978. It defines the ‘Demised Premises’ as
follows:
ALL THAT
suite of offices situated on the first floor of 27 PARK LANE MAYFAIR W1 in the
CITY OF WESTMINSTER WITH TOILET ACCOMMODATION AT THE REAR THEREOF up to but
excluding the joists of the floor above down to and including the floors
thereof (together with joists) (as the same is defined on the plan and thereon
edged red)
Together with
the Landlords fixtures and fittings therein.
It then
defines ‘the Premises’ as:
The ‘Demised
Premises’ described in the Particulars and each and every part thereof together
with the appurtenances thereto and any building now or hereafter on any part
thereof including all additions alterations and improvements thereto and all
Landlords fixtures and fittings and plant machinery and equipment now or
hereafter in or about the same
The grant is
in these words:
The Lessor
HEREBY DEMISES unto the Lessee the premises Together with the rights expressed
in the First Schedule hereto but EXCEPTING AND RESERVING unto the Lessor the
rights and easements specified in the Second Schedule hereto.
The First
Schedule contains the right to use the staircase agreed during the preliminary
exchange and also rights to the passage of water, soil, gas and electricity.
The Second Schedule reserves a right of way over an area included in the
demise, similar rights of passage of water, soil, gas and electricity, and
subject as
may be mentioned in this lease the right of dealing with adjacent or
neighbouring property of the Lessors.
Clause 3 of
the Lease restricts the acquisition thereunder of rights of light or air and
other easements. It has assumed great importance in the present litigation and
I shall read it in full very shortly. I likewise defer for the moment the
reading of another very important provision, no xv of the lessee’s covenants,
contained in the first of two clauses numbered 4 in the lease, being the
provision regulating the display of advertisements that I have already referred
to. I should also mention no xiii of the lessee’s covenants, which, putting it
shortly, prohibits alterations or additions to either the interior or the
exterior of the premises without the lessor’s consent, which is not to be
unreasonably withheld, and no xiv, which, among other things, forbids any use
of the premises otherwise than as offices in connection with the plaintiff’s
business as turf accountants and licensed betting office without the lessor’s
consent, such consent again not to be unreasonably withheld.
Having
acquired this 20 years’ lease, the plaintiff proceeded to improve and furnish
the premises far above the standard of comfort and elegance ordinarily found in
licensed betting offices. In this connection an officer of the plaintiff wrote
to Mr P J Golden, the surveyor who managed the property for Python Properties
Ltd, a letter dated September 26 1978 in the following terms:
We are
concerned about two matters affecting the exterior of the premises. Firstly we
feel that the general approach to the betting shop will detract from the high
class finish we are proposing and in this respect we are considering the use of
a canopy over the front windows and stairwell approach to raise the visual
external appearance. The proposed canopy is shown on the attached sketch and I
would be grateful if you would refer this matter to our Landlords for their
approval before proceeding. It has also come to our attention that the stairs
and side of the stairwell are in poor condition and we would like approval to
face these in terrazzo. Our second problem with the exterior concerns the
accumulation of pigeon dirt on the flat roof caused by roosting on the front
edge of the balcony on the floor above. In this respect we would be grateful if
permission could be given for us to apply an anti-pigeon preparation to the lip
of the balcony and the top edge of the railing to alleviate this nuisance.
I look
forward to hearing from you on these matters and hope our suggestions are
acceptable.
This letter
led to considerable negotiation between landlord and tenant, and at some stage
the further feature was introduced of a blind or canopy bearing the name
‘William Hill’ at street level in replacement of sign no 1. Planning permission
for this article having been obtained in or about April 1979, the plaintiff’s
chief surveyor, Mr R Joyner, wrote to Mr Golden the following letter dated
September 10 1979:
Further to our
telephone conversation this morning I would be obliged if you would consider
the following proposals and provide us with any comments and the landlords
approval to these.
1. The
installation of 3 No traditional blinds over the windows to our first-floor
premises at the above address. The blinds will be as discussed with you some
months ago ie manufactured in blue material with a green edging but eliminating
the William Hill lettering shown on the original plan.
2. The
installation of a quadrant canopy over the pavement level entrance gate to
replace the existing illuminated fascia. The canopy will be produced in blue
material having a green band and white William Hill lettering. The canopy will
be illuminated from the underside.
It is proposed
also to install some light fittings down the staircase together with planting
along the staircase side of the flat roof but I assume these will not require
the landlords approval.
The canopy
mentioned in item 2 will be as indicated on the drawing delivered to you today
under separate cover.
Mr Golden
replied promptly, by letter dated September 14 1979, in the following terms:
Thank you for
your letter of September 10 1979 following our telephone conversation regarding
the canopy and blinds at the above. I inspected the site in the company of my
clients last Tuesday and I am writing to confirm that the proposed works are
approved.
It will not be
necessary for a formal licence to be granted and I am, therefore, formally
confirming that the canopy as shown on drawing no K340/02 is approved by my
clients. The installation of three traditional blinds over the windows to the
first-floor premises is likewise approved, in accordance with the details of
your letter of September 10 1979.
With regard
to the light fittings on the staircase and the plantings proposed, these will
not require formal or informal consent but if there are any comments or
objections raised by my clients or other tenants once the fittings are
installed, I will ring you to discuss the matter further.
Let me say at
once that, notwithstanding much learned argument on both sides, I cannot read
this approval as constituting any licence, representation or other communication
that would confer on the new installation, which I will call ‘the canopy sign’,
any higher or lower privilege than was enjoyed by sign no 1. It was proposed
and approved as a replacement, and to my mind was obviously intended to take
the place, legally as well as physically, of its predecessor.
In connection
with the embellishment of the premises after the grant of the lease in 1978,
the plaintiff spent a sum of the order of £1,000 on the staircase, gate and
canopy sign, and a much larger sum on interior fittings, decoration and
furnishing. Mr Golden in cross-examination did not demur to the suggestion of
£70,000 for the latter expenditure. It would appear from a letter dated
November 13 1978, whereby Mr Joyner invited the Westminster City Council’s planning
officer and members of his committee to visit the premises in order to see the
high standard recently attained, that all, or nearly all, the expenditure on
the interior must by then have been already incurred. The work on the staircase
and the provision of the canopy sign were not done before the last quarter of
1979.
The defendant
in or about March 1983 acquired the reversion expectant on the determination of
the lease. On August 2 1983 it purported to revoke the permission given on
behalf of Python Properties Ltd for the erection of the canopy sign. On
September 28 1983 it removed the canopy sign. The writ was consequently issued
on October 12 1983.
Mr Sparrow has
put forward five alternative grounds for the plaintiff’s alleged right to
maintain its signs during the whole term of the lease. The most obvious, and in
my opinion the most satisfactory, approach to the matter is this. At the time
of the lease the exhibition on the lessor’s retained property of sign no 1 and
the finger sign was an advantage actually enjoyed with the betting office.
Therefore, if no intention was expressed to the contrary in the lease, it was
granted thereby as an easement to be enjoyed with the betting office, whether
or not it had been the subject of any such right under the previous regime.
That conclusion follows from the demise of the office ‘together with the
appurtenances thereto’ or alternatively from the incorporation of the general
words set out in section 62 of the Law of Property Act 1925: see Watts v
Kelson (1870) 6 Ch App 166; Bayley v Great Western Railway Co
(1881) 26 Ch D 434; Henry Ltd v M’Glade [1926] NI 144. However,
the lease expresses an intention to limit the wide effect of such words, and
even of the demise itself considered apart from general words. That is the
purpose of clause 3, which reads as follows:
The demise
hereby made shall not be deemed to include or confer and shall not operate to
convey or demise unto the Lessee any right of light or air liberties privileges
easements or advantages (except such as are specifically granted by this Lease)
in through over and upon any land or premises adjoining or near to the demised
premises.
Rights over
adjoining premises are therefore limited to those ‘specifically granted by the
lease’. One looks first for such rights in the first schedule, but the rights
there specified do not help the plaintiff in the present controversy. I turn
next to tenant’s covenant no xv. It reads as follows:
The Lessee
HEREBY COVENANTS with the Lessor that the Lessee will during the continuance of
the term hereby granted:- (xv) That no figure letter pole flag signboard
advertisement inscription bill placard or sign whatsoever shall be attached to
or exhibited in on or to the Premises or the windows thereof so as to be seen
from the exterior without the previous consent of the Lessor which shall not be
unreasonably withheld in respect of a sign stating the Lessee’s name and
business or profession (such sign if the Lessor so requires to be removed and
any damage caused thereby made good by the lessee at the end or sooner
determination of the said term) and in the case of the premises demised this
covenant shall not apply to any reasonable and usual display of trade or
business notice inside the shop window.
That covenant,
in my judgment, specifically grants a right to exhibit a sign stating the
lessee’s name and business or profession and fit for approval by a reasonable
lessor. If, on its true construction, it can extend to signs not on the demised
premises but on the ground-floor property of the lessor, there is accordingly
nothing in clause 3 to cut it down. But does the covenant go so far? In construing it, I find two points of
particular relevance, one in the grammar of the subclause, the other in the
surrounding circumstances. In its language the scope of the covenant embraces
not only signs attached to the premises, signs exhibited in the premises
and signs exhibited on the premises, but also signs exhibited to
the premises. Secondly, it was the fact, and was within the knowledge of both
parties, that the success of the business for which the premises were let
depended upon a sign at ground-floor level. The right granted to exhibit a
proper sign therefore extends in my view to a sign on the lessor’s retained
property indicating the way to the betting shop, such as the signs known to
both parties as erected before, and subsisting at, the time of the lease.
There remain
two points regarding consent. Did Python Properties Ltd, on the grant of the
lease, consent to the existing signs for the purposes of covenant no xv, and,
if so, was such consent revocable?
I incline to
the view that, as the existing signs were known and obvious to both parties and
some sign on the ground floor was patently necessary, the grant of the lease
without any observation on the subject by the lessor would have authorised the
continuance of the signs as approved signs within covenant no xv. That it in
fact did so after the point had been brought into the open by the preliminary
exchange, I feel no doubt. The plaintiff’s inquiry was made and the vague but
reassuring reply thereto was given, expressly in relation to the covenant, and
the matter was not raised again on behalf of Python Properties Ltd before the
plaintiff accepted the lease. Thus if my construction of the covenant is
correct, sign no 1 and the finger sign were authorised under its terms.
No authority
precisely covering the second point has been cited. In my judgment a landlord’s
consent under such a clause as that now in question, once acted upon by a
tenant, cannot be withdrawn during the term unless given with an express reservation
for that purpose; and here the tenant at once acted on the consent by
continuing to maintain and illuminate the signs as it had been doing under the
previous lease.
On this branch
of his submissions Mr Sparrow therefore succeeds, subject to certain special
points which I shall deal with when I have shortly considered his four
alternative arguments. None of the four, in my view, should be accepted.
The
alternative on which Mr Sparrow relied most strongly treats the signs not as an
incorporeal but as a corporeal appurtenance demised by the lease. He relies
also, especially in relation to the canopy sign, on the definition of the
premises the subject of the lease, as including all additions, alterations and
improvements to the previously defined demised premises. This idea of treating
the signs themselves as detached parts of the property let to the plaintiff
instead of as the subject of an easement over other property is inspired by Francis
v Hayward (1882) 20 Ch D 773 and (1883) 22 Ch D 177. That case related
to a fascia stating the name and trade of the occupier of 152 Aldersgate
Street, who was plaintiff. No 152 was a property situate in a courtyard
approached by a gate between nos 151 and 153. The fascia was formed of cement
plastered on to the brickwork, as to one half of the fascia on no 151 and as to
the other half on no 153, the inscription being painted on the cement. Counsel
argued before Kay J for and against the proposition that an easement had been
granted by general words in the lease of no 152. The learned judge, while
inclined to find for the plaintiff on that submission, considered on reflection
that the true view was that the stucco fascia was part of the tenement no 152,
though the wall behind it belonged to the defendant. He therefore held that the
plaintiff was entitled to the fascia not as a mere easement but as part of the
property demised to him.
When the case
reached the Court of Appeal both Jessel MR and Bowen LJ accepted Kay J’s
analysis of the situation, although the latter was disposed to think that the
plaintiff could also have succeeded if the case were treated as one of
easement. Mr Sparrow
I should say
that prima facie a plate bearing the number of a house and the name of the
occupier is part of the house, so when I find over a gate the number of the
house to which the gate leads and the name of the occupier, I should expect the
plate on which they are inscribed to belong to the owner of the gate.
The industry of
counsel has not discovered any judicial reference to the case of Francis
v Hayward during the century that has now passed since it was decided. I
for my part regard the decision not as laying down any principle but as
applying to the very special facts of the case. Certainly I find it quite
unreal to regard the easily detachable signs now under consideration as part of
the premises demised and I do not think that Francis v Hayward
could legitimately be used to circumvent the operation of clause 3 of the
lease.
Mr Sparrow’s
third argument is one of estoppel. He pleads that the letter dated February 6
1978, written on behalf of Python Properties Ltd during the preliminary
exchange, constituted a representation that the right of the plaintiff to
retain sign no 1 and the finger sign, and to erect any additional or
replacement signs over the entrance to the staircase, would be subject only to
the restrictions set out in the proposed covenant, now no xv, and that the
plaintiff executed the lease in its existing form in reliance upon such
representation. As an alternative formulation it is proposed that, by reason of
the preliminary exchange, the plaintiff and Python Properties Ltd entered into
the lease on a common assumption or understanding to the like effect as the
alleged representation, but for which the plaintiff would not have executed the
lease in its existing form. I feel no doubt that these assertions, if they
really go beyond what I have already held in Mr Sparrow’s favour, are built upon
a wholly insufficient foundation. The relevant passage in the letter of
February 6, although reassuring, is deliberately cautious and guarded and
cannot fairly be read as representing or assuming any rights in the plaintiff
beyond what would be conferred by a lawful construction of the intended lease
when executed, whatever that might be. The whole purpose of the correspondence
whereof the preliminary exchange formed part was to agree between
professionally skilled advisers a written instrument that was to bind both
parties when signed, sealed and delivered.
Fourthly, Mr
Sparrow claims rectification of the lease by adding a new paragraph to the
first schedule in the following terms:
The right for
the Lessee, with the previous consent of the Lessor which shall not be
unreasonably withheld to erect over the entrance to the said staircase, a sign
stating the Lessee’s name and business or profession (such sign if the Lessor
so requires to be removed and any damage caused thereby made good by the Lessee
at the end or sooner determination of the said term).
He alleges a
common intention that the lease should confer such a right evidenced by the
preliminary exchange, and a common error in the framing of the lease. This
claim is defeated by the same examination of the preliminary exchange as is
mortal to the assertion of an estoppel. There is no sufficient evidence of a
common intention beyond the terms of the draft or of a common error in settling
it. Accordingly, I need not consider the question argued by counsel whether a
right to rectify the lease, formerly sustainable against Python Properties Ltd,
could now be enforced by the plaintiff against the defendant, its successor in
title to the reversion.
Mr Sparrow’s
last alternative is again based on estoppel. It is pleaded by para 14A of the
reamended statement of claim, wherein Python Properties Ltd is referred to
concisely as ‘Python’. The paragraph says this:
Further or
alternatively, by reason of the facts and matters pleaded in paragraph 14
hereof, it should be inferred that the Plaintiff, to the knowledge of Python,
incurred the expenditure involved in erecting the Canopy in the belief that,
having received Python’s consent, the Plaintiff was entitled to retain it until
the end or sooner determination of the term granted by the said lease and that,
accordingly, Python was, after the erection of the Canopy, estopped from
denying such entitlement.
The preceding
para 14 refers to the letters of September 10 and 14 1979 and to the subsequent
erection of the canopy sign in November at a cost of approximately £400. The
weak point here lies in the words ‘to the knowledge of Python’. The
transaction, as I have already said, was simply one of replacement of an
existing sign by another when no controversy as to its status had yet arisen.
It would to my mind be quite unfair to regard the request for approval as
requiring Python Properties Ltd to consider what exactly the rights of the
plaintiff were and whether the plaintiff was acting under a misconception of
such rights. Moreover I do not think, on the evidence, that the plaintiff’s
belief alleged in para 14A, which I have just read, induced the disbursement of
the £400. I find that the plaintiff would not have incurred its heavy
expenditure on improving the betting shop had it supposed its continued use of
the signs to be wholly precarious. But the improvement had been effected before
replacement of sign no 1 by the canopy sign was asked for, and at that point I
do not believe the plaintiff would have hesitated to spend £400 in order to
reap a better harvest from £70,000 already laid out, even had it been told that
its permission to retain the canopy sign was revocable. The foregoing features
of the case under scrutiny entirely distinguish it, in my opinion, from Civil
Service Musical Instrument Association v Whiteman (1899) 68 LJ Ch
484, a decision relied on by Mr Sparrow, which was, if I may say so with
respect, plainly correct on its own facts.
Thus in the
end Mr Sparrow succeeds only on the construction of the lease as granting a
right that cannot now be revoked. I have still, however, to deal with a
submission which, if received, would adversely affect his case in any of its
alternative formulations. Mr Godfrey says that the erection of more than one
sign outside the entrance to the staircase is illegal under Regulation 2 of the
Betting (Licensed Offices) Regulations 1960. That regulation now acts by way of
definition of a prohibition contained in section 10 of the Betting, Gaming and
Lotteries Act 1963. Subsection (5) of section 10, omitting an immaterial
proviso, is as follows:
If, save in a
licensed betting office or in such manner as may be prescribed on premises
giving access to such an office, any advertisement is published —
(a) indicating that any particular premises are a
licensed betting office; or
(b) indicating where any such office may be
found; or
(c) drawing attention to the availability of, or
to the facilities afforded to persons resorting to, such offices, then, in the
case of an advertisement in connection with the office or offices of a
particular licensee, that licensee, and in every case any person who published
the advertisement or caused or permitted it to be published, shall be guilty of
an offence.
Regulation 2
of the 1960 regulations begins:
The holder of
a betting office licence may exhibit on premises giving access to a licensed
betting office
and is then
divided into two sections, (a) and (b). The first authorises certain notices
inside a building comprising the licensed premises, and I need not read it. The
second is in these terms:
(b) elsewhere than inside a building comprising
the licensed premises, a notice, in addition to his name, in not more than one
place in characters not exceeding three inches in height, and consisting only
of the words ‘licensed betting office’ and such indication, if any, as he
thinks fit to give of the times at which the licensed betting office is open.
Mr Godfrey
points out that a notice may only be displayed in one place outside the
building; but this restriction applies only to such notices as are the subject
of section 10(5) of the 1963 Act. Mr Godfrey contends with some force that the
statement of claim itself shows that the signs are only there (in the words of
the pleading) to advertise the existence of the office and therefore do, in the
terms of section 10(5), indicate that the premises are a licensed betting
office or indicate where such an office may be found. This may well be so in
the everyday use of the word ‘indicate’, but a decision of the divisional court
of the Queen’s Bench Division has established that in section 10(5) a sign does
not indicate, unless it states as a fact, that the premises are a licensed
betting office. That authority is Binks (Maurice) (Turf
Accounts) Ltd v Huss [1971] 1 WLR 52, and it shows that this
submission of illegality is ill founded.
There remain,
however, two points regarding permissible notices that arise from my
construction of the lease. It will be remembered that no xv of the lessee’s
covenants permits, subject to approval, the exhibition of ‘a sign stating the
Lessee’s name and business or profession’. The first point is whether ‘a sign’
means one sign only. In my opinion, though Mr Godfrey seemed to speak
scornfully of the idea, there is nothing in the covenant that requires the
exclusion of the construction provided by section 61 of the Law of Property Act
1925. Accordingly, the singular here includes the plural and the plaintiff may
have more than one sign, subject of course to the right of the reversioner to
refuse consent to any unreasonable plurality of notices. The last point is one
that did not emerge in argument, and I have not heard either side upon it. The
authorised signs are to state the lessee’s name and business or
profession, but the signs over which this action has been fought display the
plaintiff’s name (somewhat abbreviated) alone. Can the defendant validly object
to the omission of an indication of the business? My first impression is that it cannot,
the permission to state a business or profession being given only for the
benefit of the lessee, who can therefore display his name alone if he so wishes
(as the plaintiff no doubt does in order to keep well out of range of the
statutory restrictions already referred to). That is in accordance with the maxim
omnes licentiam habent his quae pro se indulta sunt renunciare. I will,
however, of course hear the point argued if counsel for the defendant desires
it.
It appears to
me that I must make a suitable declaration in the plaintiff’s favour. I will
hear counsel as to the terms thereof. As to other relief, it will probably be
enough at this stage to give liberty to the plaintiff to apply for an
injunction if so advised. The counterclaim, although its alternatives may in
form be wide enough to cover the conclusion to which I have come, should in my
view be dismissed, my declaration being made in the action alone.
