Brown v Jamieson
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD COHEN,LORD JUSTICE SELLERS |
| Judgment Date | 18 December 1958 |
| Judgment citation (vLex) | [1958] EWCA Civ J1218-2 |
| Court | Court of Appeal |
| Date | 18 December 1958 |
[1958] EWCA Civ J1218-2
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
(Lord Evershed)
Lord Cohen and
Lord Justice Sellers.
Mr. P.V. BAKER (instructed by Messrs. Johnson, Wetherall & Sturt, Agents for Messrs. Barugh & Wilkinson, Middlesbrough) appeared on behalf of the Appellant (Plaintiff).
Mr. L.A. BLUNDELL (instructed by Messrs. Cohen, Jackson & Scott, Stoekton-on-Tees) appeared on behalf of the Respondents (Defendants).
: The facts of this case are extremely short; and the question for our determination may he no leas shortly stated. In the year 1944 the Defendants became the tenants of the Plaintiff of premises consisting of a shop, known as "Park Lane Stores", and living accommodation above it, being No. 97 Yarn Road, Stockton-on-Teea. The rent was 25s.0d. per week and the tenancy was determinable by twelve months' notice on either side. It is not disputed that at the date of the tenancy and thereafter until the coming Into operation on 6th July, 1957. of the Rent Act of that year, the tenancy was within the protection of the Rent Restriction legislation and, as such, was excluded by the terms of section 43 sub-section 1 (c) of the Landlord and Tenant Act, 1954, from the scope of the latter Act; but that, upon the premises becoming decontrolled, Part II of the 1954 Act then became applicable to them, seeing that the ground floor was being used for business purposes; (see section 23 sub-section 1).
On the 14th November, 1956, the Plaintiff served upon the defendants a written notice to quit the premises on the 16th November, 1957. It is conceded by the Defendants that that notice was a good notice as required by the term B of the tenancy agreement; but it is conceded on the Plaintiff's aide that it was not a notice in compliance with the Act of 1954 and the Regulations made thereunder.
It follows from my recital, that at the date when the premises became decontrolled (that is, lost the protection of the Rent Restriction legislation and ceased, therefore, to be excluded from the application of the 1954 Act by virtue of section 43 of that Act) a notice to quit, effectual according to the contract, had been duly served but had not expired. The question for the Court is whether, by virtue of section 24 sub-section 3 (b) of the 1954 Act, the notice took full effect so as to determine the Defendants' right of occupation on its expiry on the 16th November, 1957; or whether, since the notice did not satisfy the requirements of the 1954 Act and the Regulations thereunder, the Defendants' tenancy still subsists and will continue so to do until determined in due accordance with the last-mentioned Act and Regulations.
Section 24 sub-section 1 of the 1954 Act provides: "A tenancy to which this Part of this Act applies shall not come to an end unless terminated in accordance with the provisions of this Part of this Act"; and then there are certain further provisions which I need not read. Sub-section 3 of the same section is in the following terms (so far as relevant): "Notwithstanding anything in sub-section (1) of this section, (a) where a tenancy to which this Part of this Act applies ceases to be such a tenancy, it shall not come to an end by reason only of the cesser…" – etc.: I do not read the rest of that paragraph. "(b) where, at a time when a tenancy is not one to which this Port of this Act applies, the landlord gives notice to quit, the operation of the notice shall not be affected by reason that the tenancy becomes one to which this Part of this Act applies after the giving of the notice".
Upon a first reading of the second paragraph of the last sub-section, It would appear precisely to cover the present case. At a time when the Defendants' tenancy was not one to which Part II of the 1954 Act applied the Plaintiff landlord had given a notice to quit, fully complying with the contract of tenancy. It follows, therefore, according to the argument on the landlord's behalf, that "the operation of the notice" (which must mean its effect to determine the tenancy) is not affected by the circumstance that, after the giving of the notice but before its expiry, Part II of the 1954 Act became applicable to the tenancy.
The learned Judge in a reserved Judgment rejected the Plaintiff's claim. HIS conclusion was based on certain decisions of the Courts and particularly on the decision of this Court in ( Orman Brothers Limited v. Greenbaum 1955 1 Weekly Law Reports, page 246), affirming the Judgment of Mr. Justice Devlin (1954 1 Weekly Law Reports, page 1520) as binding him to hold that section 24 sub-section 3 (b), notwithstanding the generality of its language, must be treated as limited in its operation to cases where the application of the 1954 Act, after the giving of a notice to quit, is exclusively attributable to a change of user of the premises since that date; or at any rate to matters of fact as distinct from the mere operation of legislation as respects the premises concerned.
The Plaintiff landlord has appealed from His Honour's rejection of his claim. In the circumstances, the first question for our consideration is: What is the true scope and effect of the Orman decision? There is no doubt that the facts in that case differed from those in the present case in this material respect, that in the former, the notice to quit, though given after the Act of 1954 had received the Royal Assent, was given before, but expressed to take effect after, the Act came into operation. In Orman's case, therefore, the reason for the non-application of the 1954 Act at the date of the notice did not depend upon the premises in question being, by reason of the particular facts or circumstances relating to them, excluded from the Act's operation so long as those fact or circumstances were unchanged; but depended on the single circumstance that at such date the Act itself had not come into operation at all.
In the view of Mr. Justice Devlin, expressed at the bottom of page 1525 of the 1954 report, the words "at a time when a tenancy is not one to which this Part of this Act applies" In section 24 sub-section 3 (b) clearly carry with them the implication that at the relevant time (that is, the date of the giving of the notice) the 1954 Act is already in force - an implication plainly inherent (I may add) in the language of paragraph (a) of the same sub section. In this Court Lord Goddard, Chief Justice, in giving the leading Judgment, described Mr. Justice Devlin's Judgment as "entirely right and impeccable". The view of Mr. Justice Devlin which I have quoted, affirmed in this Court in the language which I have also cited - a view with which I respectfully most fully concur - was sufficient to determine Orman's case, but would have no decisive effect in the present action; since in this case the 1954 Act was in force at the date of the giving of the notice by the Plaintiff-Appellant on the 14th November, 1956. But did Mr. Justice Devlin's decision and its affirmation go further? Can it be said that its ratio or one of its rationes was that which I have attempted to express above, namely, that section 24 sub-section 3 (b) Is limited in its operation to cases where the application of the 1954 Act to the premises after the date of the notice (but before its expiry) depends upon a change of user of the premises? The proposition which, according to Mr. Blundell for the Defendant-Respondents in this Court, 1b enshrined and inherent in the decision in Orman's case, was expressed by him as follows: The words In the sub-section "the tenancy becomes one to which this Part of this Act applies" refer not to the moment when the Act of 1954 becomes operative as a matter of law as respects that tenancy, but to a change in the physical circumstances as to user etc. which determine whether a tenancy is a "business tenancy" to which Fart II of the Act applies. The word "etcetera" is inserted In his formula by Mr. Blundell for the purpose of making allowance for the possible effects of the provisions of sections 41 and 42.
Mr. Blundell's argument depends first upon two passages In Mr. Justice Devlin's Judgment: and since, as I have earlier stated, Lord Goddard, Chief Justice, described that Judgment as "entirely right and Impeccable", it is necessary to set out those two passages in full. The first is at the top of page 1525 in the 1954 Report and is: "That is subject to Mr. Sherrard's alternative argument, which is, that if he is caught by subsection (1)" – that Is, of section 24i – "then he is taken out of it by sub-section (3). I think the object of that sub-section is clear enough. It is not intended merely as a transitional provision to cover notices to quit that are served before the coming into force of the Act; it is intended as a permanent provision of the Act, and its object is to meet with the situation in which there is a change of user between the serving of the notice and its taking effect, a change of user which might bring the tenancy within the Act. Thus, if instead of reading tenancy is not one to which this Part of this Act applies' I call it, not precisely hut no doubt for general purposes sufficiently accurately, a 'business tenancy', the sub-section would read in this way: 'where, at a time when a tenancy is not a business tenancy, the landlord gives notice to quit, the operation of the notice shall not be affected by reason that the tenancy becomes a business tenancy after the giving of the notice'. That is a plain, simple and no doubt necessary provision".
Then later on the same page and immediately after his expression of the view which I earlier cited in this Judgment, Mr Justice Devlin continued: "It is perfectly true, of course, that the does not apply to any...
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