Brenda Elizabeth Turner v Mr Owen Gwilym Thomas
| Jurisdiction | England & Wales |
| Judge | Mr Justice Zacaroli |
| Judgment Date | 26 May 2022 |
| Neutral Citation | [2022] EWHC 1239 (Ch) |
| Docket Number | Case No: CF084/2021CA |
| Court | Chancery Division |
[2022] EWHC 1239 (Ch)
Mr Justice Zacaroli
Case No: CF084/2021CA
IN THE HIGH COURT OF JUSTICE
HIGH COURT APPEAL CENTRE CARDIFF
ON APPEAL FROM THE CAERNARFON COUNTY COURT
ORDER OF HHJ JARMAN QC DATED 20 JANUARY 2022
County Court Case Number: H00CJ088
Cardiff Civil and Family Justice Centre
2 Park Street
Cardiff CA10 1ET
Gavin Bennison (instructed by Ebery Williams) for the Appellant
William Batstone (instructed by JCP Solicitors) for the Respondents
Hearing date: 19 May 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This appeal raises the question of the validity of a landlord's notice to quit agricultural premises under the Agricultural Holdings Act 1986 (the “1986 Act”), addressed to, and served upon, the original tenant shortly after the lease had been assigned by the original tenant (without the knowledge of the landlord) to a company of which the original tenant was sole shareholder, director and the company secretary.
The appeal is brought by the second defendant with the permission of Steyn J against the order of HHJ Jarman QC dated 20 January 2022, in which he determined that the notice was valid.
The facts
There was an agreed statement of facts before HHJ Jarman QC.
The land in question is at Pentre Canol, Dyffryn Ardudwy (the “Land”). The freehold reversion is now registered in the name of the claimants (and respondents).
The first defendant, Mr Owen Gwilym Thomas (“Mr Thomas”) was granted a lease of the Land some time ago (the precise date is not relevant) by the then owner of the Land, Mr O T Morris, by way of an oral agreement (the “Lease”).
The freehold reversion then passed, on Mr Morris' death, to Jane Louisa Jones. On her death, it passed to Mr Ieuan Ellis Owen (“Mr Owen”), as executor of her estate. Mr Owen was accordingly the landlord under the Lease as at 4 November 2019.
On 30 October 2019, Mr Thomas incorporated the second defendant (the “Company”). Mr Thomas became the sole shareholder and officer of the Company and its secretary. Its registered office was the same as Mr Thomas' home address.
On 1 November 2019, Mr Thomas executed a deed of assignment of the Lease to the Company. It is common ground that this was effective to vest the leasehold estate in the Company. Thereafter Mr Thomas was the person responsible for the management of the farming enterprise which included the farming of the Land on behalf of the Company.
On 4 November 2019, Mr Owen (who had no notice of the assignment of the Lease) served a notice to quit (the “Notice”) on Mr Thomas. It was sent by recorded delivery post to Mr Thomas at his home address.
The Notice was addressed to Mr Thomas. It stated that it was to “give you notice to quit and deliver up possession of [the Land] … which you hold of me as tenant…” (and then specified the date upon which possession was to be given).
No response was received to the Notice until 2 October 2020, when land agents acting for Mr Thomas wrote to Mr Owen's firm of solicitors, confirming their instruction.
The Judgment
The Judge dealt with the matter, with the parties' agreement, on the basis of written argument alone. At §7–8 he noted that as the tenancy was an oral one, there are no contractual provisions governing the form of a notice, or its contents. He also noted that while the 1986 Act contains several references to notices to quit, it contains no requirement that they must be addressed to the tenant in writing.
Services of notices under the 1986 Act are governed by s.93. This provides, materially, as follows:
“(1) Any notice, request, demand or other instrument under this Act shall be duly given to or served on the person to or on whom it is to be given or served if it is delivered to him, or left at his proper address, or sent to him by post in a registered letter or by the recorded delivery service.
(2) Any such instrument shall be duly given to or served on an incorporated company or body if it is given or served on the secretary or clerk of the company or body.
(3) Any such instrument to be given to or served on a landlord or tenant shall, where an agent or servant is responsible for the control of the management or farming, as the case may be, of the agricultural holding, be duly given or served if given to or served on that agent or servant.
(4) For the purposes of this section and of section 7 of the Interpretation Act 1978 (service by post), the proper address of any person to or on whom any such instrument is to be given or served shall, in the case of the secretary or clerk of an incorporated company or body, be that of the registered or principal office of the company or body, and in any other case be the last known address of the person in question.”
At §11 and §13–14, he cited authority for the proposition that service of a notice on an assignor of a lease, after assignment to an assignee, was ineffective, including Old Grovebury Manor Farms Ltd v W Seymour Plant Sales and Hire Ltd [1979] 1 WLR 1397 (“ Old Grovebury”).
At §15–19, he cited authority for the proposition that contractual notices (and statutory notices) are to be interpreted in accordance with how they would be understood by a reasonable recipient of the notice, reading it in context, in particular Mannai Investment Co Ltd v Eagle Star Assurance Co Ltd [1997] AC 747 (“ Mannai”).
At §20 he summarised the submissions made on behalf of the claimants:
(1) since Mr Thomas was both the agent or servant of the Company and the person responsible for the management and farming of the land, the Notice had been effectively served on the Company by reason of s.93(2) and/or s.93(3) of the 1986 Act; and
(2) applying the test in Mannai, it would have been clear to a reasonable tenant reading the Notice that the landlord was giving notice to quit the land and terminate the tenancy, and it was up to the Company to serve a counter-notice if it wished to retain the tenancy, particularly in the context that the landlord had not been informed of the existence of the Company or the assignment.
At §22, he referred to the submissions of the Company that, while — had the Notice been addressed to and given to the Company — its delivery to Mr Thomas would have been good service on the Company, that was not the case here. S.93(1) requires the Notice to be given to or served on the person to or on whom it is to be given. Here it was not, and the provisions of that section relating to service on a company only arise if the notice is addressed to and given to a company.
The judge concluded that the Notice was valid and effective, giving his reasons in five short paragraphs, which I set out in full:
“23. In my judgment it is important to bear in mind that Mr Thomas and the company are two distinct persons in law. As a general principle it is clear from the authorities that a notice addressed to and given to an assignor after the tenancy has been assigned is not a valid and effective notice. The assignor may not communicate the receipt of the notice to the assignee who may remain wholly ignorant of it, as was the situation in the Old Grovebury case. It would clearly be wrong in such circumstances to hold the notice to be valid.
24. It is also important to keep in mind the separate issues of whether the notice on its face is valid, and whether there has been good service of it. Section 93, in my judgment, focusses on the latter issue, and sets out what is or may deemed to be good service in different situations.
25. However, the question remains in the present case whether a reasonable recipient would appreciate that the notice contained an error in that it was addressed to Mr Thomas and would appreciate what meaning the notice was intended to convey. If so, then that is how the notice is to be interpreted. Moreover, as is made clear by Arnold LJ in Pease v Carter, what a reasonable recipient would appreciate depends on context.
26. The context here is that Mr Thomas set up the company with its registered address at his home, and naming it with his surname and initials followed by the words in Welsh Amaethyddiaeth Cyf (in English, Agriculture Ltd). He was its sole director and shareholder and acted as its secretary. He assigned the tenancy to the company but it was he who carried on the farming of the land thereafter on behalf of the company. He also knew, or is to be taken as knowing, that the existence of the company or the assignment had not been communicated to the claimants at the time he received the notice.
27. Would a reasonable recipient in those circumstances appreciate that the notice should have been addressed to the company and was intended to be valid to terminate the tenancy? In my judgment the answer to that question is yes. It is plain that a reasonable tenant reading the notice could not be misled by it and could be in no doubt of the identity of the intended recipient. There was no prejudice to the company. It was acting in the control of the management of the land through its director, Mr Thomas. There was no material difference as to what was required of him, whether acting as such or on his own behalf, namely ensuring the service of a counter-notice or of...
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O G Thomas Amaethyddiaeth CYF v Turner and Ors
...had been made in naming the tenant and would have read it as having been addressed to the company. Zacaroli J's judgment is at [2022] EWHC 1239 (Ch). 9 Zacaroli J summarised his reasoning thus: “[35] The only (but in this case critical) requirement, therefore, is that the notice conveys to......