Blunden v Frogmore Investments Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Robert Walker,Lord Justice Carnwath,Lord Justice Schiemann |
| Judgment Date | 30 April 2002 |
| Neutral Citation | [2002] EWCA Civ 573 |
| Docket Number | Case No: A3/2001/0974 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 April 2002 |
[2002] EWCA Civ 573
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (HH JUDGE HOWARTH)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Schiemann
Lord Justice Robert Walker and
Lord Justice Carnwath
Case No: A3/2001/0974
Mr David Berkley QC and Mr Jonathan Rule (instructed by Norton & Co) for the appellant
Mr Kim Lewison QC (instructed by Dechert) for the respondent
This is an appeal, with the permission of Clarke LJ, from an order of HH Judge Howarth made on 24 January 2001 when he was sitting at Manchester as a judge of the Chancery Division of the High Court. The order dismissed an action by the appellant Mr Mark Blunden against his landlord (or former landlord), Frogmore Investments Ltd ("Frogmore"). The action was dismissed under CPR 24 on the ground that it had no real prospect of success. The only issue on appeal is as to the validity of the service of a notice by Frogmore terminating Mr Blunden's lease. The notice was served in the aftermath of the IRA bombing of the Arndale Centre in Manchester on 15 June 1996.
The bomb caused extensive damage not only to the Arndale Centre but also to other buildings in the vicinity, including The Corn Exchange. Mr Blunden had a lease of a retail unit at the Corn Exchange, the postal address of his unit being 51A Fennel Street. He sold sound recordings and books, specialising in old records which are collector's items.
The Corn Exchange is a large, listed building of triangular shape, bounded on its three sides by Cathedral Street, Hanging Ditch and Fennel Street. Structurally it consisted (as described in a report dated 10 July 1996 by Oscar Faber Consulting Engineers) of a central market area covered by an extensive glass roof and dome (100 feet high at its apex) carried on a steel framed structure, and a surrounding, structurally separate building on seven floors (subbasement, basement, ground floor and four upper floors).
Mr Blunden's lease of the retail premises at no. 51A Fennel Street was granted on 1 March 1995. It was for a term of six years from 29 September 1994 at a yearly rent of £3000, subject to upwards-only review after three years; there were also service changes.
The lease contained two provisions of central importance to this appeal. Clause 6.4 (headed 'Termination on destruction') provided as follows:
"If any destruction or damage shall render the Demised Premises or the Building wholly or substantially unfit for occupation the Landlord may by giving to the Tenant not later than six months after the date of such destruction or damage six months notice in writing determine this Demise but without prejudice to any claim by the Landlord in respect of any antecedent breach of covenant."
Clause 6.9 (headed 'Service of notices') provided as follows:
"In addition to any other prescribed mode of service any notices requiring to be served hereunder shall be validly served if served in accordance with Section 197 of the Law of Property Act 1925 as amended by the Recorded Delivery Act 1962 or in the case of the Tenant if left addressed to it or if there shall be more than one to any of them on the Demised Premises or sent to it him or any of them by post or left at the last known address or addresses of it him or any of them in Great Britain."
It is common ground that the reference to s.197 was an obvious error and that s.196 was intended.
The explosion on 15 June 1996 caused extensive damage to the Corn Exchange, but it became apparent on expert examination that the triangular surrounding building, although needing very extensive repairs (especially to its roofs), was still structurally sound. However the glass roof and dome were severely damaged and the whole building was in a very dangerous state, with large shards of glass in the roof and dome liable to drop into the market area below. Main gas and electricity services were also damaged and had to be cut off. On 28 June 1996 the City Council served on Frogmore a dangerous building notice under s.77 of the Building Act 1984 requiring Frogmore to erect a secure hoarding around the building.
I need not go further into the detailed evidence in the witness statement and exhibits of Mr Joseph Malvisi (a director of Frogmore Estates plc, Frogmore's holding company) since it is common ground in this court—although it was not common ground below—that Mr Blunden's premises, although relatively well shielded from the blast, had been rendered at least substantially unfit for occupation. The only issue in this court is as to service of notice. But it is fair to add that the uncontradicted evidence of Mr Malvisi and of Ms Kay Rowsell (who has worked at the Corn Exchange for 23 years, and is now the General Manager) shows that Frogmore reacted to the bomb damage with energy, efficiency and a proper concern for the interest of its tenants. All its tenants (whether of units in the market area or of premises in the surrounding building) were naturally concerned to secure their trading stock and other possessions, and also to know what was to happen in the future.
Frogmore arranged for tenants to remove their property as soon as it was safe to do so, with priority given to banks and jewellers whose premises were particularly vulnerable. Ms Rowsell has deposed:
"During these visits Frogmore provided safety wear, transport and also labour to assist the Tenants in removing their goods. I remember that [Mr Blunden] had some difficulty because much of his stock was very heavy and required a substantial amount of labour to transport the goods from his unit, as vehicles could not be brought up close to his unit."
Frogmore offered to take surrenders of leases from tenants who wished to surrender, before anyone knew for sure what the future held. At one stage, it seems, Frogmore hoped that the Corn Exchange (as an important listed building in the city centre) could be repaired relatively quickly and without necessarily terminating all the leases. But at the beginning of December 1996 (that is, only about a fortnight before the expiry of six months after the explosion) Frogmore decided to use the power in clause 6.4 of the standard-form lease to terminate the leases of those tenants who had not surrendered.
Ms Abigail Mitchell, a solicitor with Titmuss Sainer Dechert (Frogmore's solicitors) prepared a considerable number of notices to be served on tenants. In Mr Blunden's case (and, I imagine, in the case of all or most of the other tenants) she prepared two notices, a notice under clause 6.4 (embodied in a letter) and a separate statutory notice under s.25 of the Landlord and Tenant Act 1954, terminating the lease and indicating that any application for a new tenancy would be opposed under s.30(1)(f) of the Act (relating to demolition, reconstruction or substantial works). Mr Malvisi deposed that some other tenants did apply to the court for new tenancies, but that all the applications were subsequently discontinued.
I should now refer to the evidence as to the service of the notice on Mr Blunden. The evidence is to be found in his witness statement and in those of Ms Rowsell and Miss Mitchell. Ms Rowsell has deposed as follows:
"Greta Oakley and Robert Thain had the responsibility of supplying Eric Roseman of Frogmore with a list of addresses of all of the occupants of the building, so that he could [have] correspondence with them after the disaster; this involved liaising with the Town Hall who helped by supplying lists of addresses. Also, I provided them with contact details for the occupants from records that I had managed to retrieve from my seriously damaged office. I did not enter into any correspondence with the tenants myself because my office was so seriously damaged by the blast that I did not have the facilities for this task. I visited the offices of Frogmore's solicitors … at least four times to go through the Tenants' leases with Ms Mitchell of that firm with a view to trying to obtain further addresses for the various Tenants. As a result of the bomb there were numerous meetings at the Town Hall, most of which I attended along with either, or both Joe Malvisi and Eric Roseman. At these meetings we tried to expand the list of addresses further by talking to those tenants that were present. I recall it being an extremely long and drawn out process trying to get alternative addresses for all of the Tenants. I managed to find 3 addresses in total for the Claimant, one of which was the demised premises and the other 2 were private addresses. One of the private addresses I had for the Claimant was the latest address given to me by the Claimant. He had at some time told me in conversation that this was the address of a new property that he had purchased."
The evidence of Ms Mitchell was that her colleague Kate Wassall posted the letters (embodying the clause 6.4 notice and enclosing the separate s.25 notice) at the Fleet Street Post Office on 4 December. The letters were sent by recorded delivery and certificates of proof of posting were obtained. They were sent to three addresses for Mr Blunden, supplied to Ms Mitchell by Ms Rowsell, that is 51A Fennel Street, 21 Clegg Lane, Little Hulton, Farnworth (the address given in the lease) and 3 Ketton Close, Higher Oppenshaw, Manchester (an address which Ms Rowsell deposed had been given to her by Mr Blunden). However in due course all three letters were returned to the solicitors by the Post Office. In addition, copies of the notices were affixed to the outside of 51A...
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