Burgess v Stafford Hotel Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,SIR DENYS BUCKLEY |
| Judgment Date | 27 February 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0227-5 |
| Docket Number | 90/0175 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 February 1990 |
[1990] EWCA Civ J0227-5
Lord Justice Glidewell
and
Sir Denys Buckley
90/0175
Plaint No. 8912282
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WESTMINSTER COUNTY COURT
(HIS HONOUR JUDGE SIMPSON)
Royal Courts of Justice.
MR. GAVIN HAMILTON (instructed by Messrs. Gamlens) appeared on behalf of the Appellant.
MR. JONATHAN BROCK (instructed by Messrs. Saunders Sobell Leigh & Dobin) appeared on behalf of the Respondent.
The respondent company is the owner of premises, Nos. 9–25 Blue Ball Yard, London, S.W.l, which adjoin the Stafford Hotel on the east side. The company purchased those premsies in December 1986. The appellant, Mr. Burgess, then held the tenancy of Nos. 21, 22 and 25 Blue Ball Yard. No. 21 is a residential flat in which he lives, No. 22 is a bookstore and No. 25 is an office and showroom from which he conducts a bookselling business.
Not long after the company purchased those premises Mr. Burgess's lease expired. The respondent company ("the landlord") wish to occupy the whole of the premises for the extension of the hotel and to that end to carry out works of conversion which require planning permission.
When Mr. Burgess's lease expired he applied for a new tenancy under the Landlord and Tenant Act 1954. The landlord had applied for planning permission on 14th April 1987, but when the tenant's application for a new tenancy came to be heard on 24th May 1988, that planning permission had still not been granted. Accordingly, in its absence, the court ordered a new tenancy of Mr. Burgess's holding for six years but with a six-month break clause. That clause provided that the term could be determined
"at any time by the Landlord giving to the Tenant not less than six months notice in writing terminating this tenancy on the grounds that it requires possession of the demised premises because it intends to demolish or reconstruct the whole or a substantial part of the demised premises or to carry out substantial work of construction on the whole or part of them and cannot reasonably do so without obtaining possession thereof…"
That wording is taken verbatim from section 31(f) of the Landlord and Tenant Act 1954.
On 6th October 1988 the planning permission which the company had sought was granted by Westminster City Council. It related to Nos. 9–22 inclusive Blue Ball Yard. It was permission for:
"Alterations in connection with use as 12 suites for adjoining Stafford Hotel, one self-contained residential unit, also residential and hotel garaging."
Then there was another permission of the same date for:
"Works of alteration in connection with use for hotel accommodation, self-contained maisonette and garaging."
Those permissions referred to a number of plans which had been submitted with parts of the application.
Having obtained that permission, on 9th January 1989 the company served a new notice to terminate the tenancy under section 25 of the Landlord and Tenant Act. Solicitors on behalf of Mr. Burgess on 2nd February 1989 served a counter-notice, and on 5th May an application was made for a new tenancy. The landlord throughout indicated that it would oppose on the ground specified in section 30(1)(f) of the Act, i.e. the ground on which in the clause in the lease to which I have referred it was entitled to terminate, namely,
"that on the termination of the current tenancy the landlord intends to demolish or reconstruct the premises comprised in the holding or a substantial part of those premises or to carry out substantial work of construction on the holding or part thereof and that he could not reasonably do so without obtaining possession of the holding".
The issue whether or not the landlord could make out that ground was ordered to be tried as a preliminary issue. It came on for hearing before His Honour Judge Simpson in Westminster County Court on 30th October 1989, and he found in favour of the landlord and dismissed the tenant's application for a new tenancy.
Mr. Burgess had been advised by solicitors until shortly before the hearing in the county court, but in the county court he appeared in person and he put in his notice of appeal in person. The grounds for the appeal were shortly stated:
"1. Planning Permission by Westminster Council is not valid.
2. Present Development Plans are not Major Redevelopment.
3. The Judgment infringes the Plaintiff's rights under the Rent Act."
The landlord riposted on 29th December 1989 by making an application to strike out the notice of appeal. That application read:
"…that the Notice of Appeal…be struck out for failure to set down the Appeal as required by Order 59 r.5 of the Rules of the Supreme Court and as disclosing no reasonable ground of appeal pursuant to Order 59 and Order 18 r.19 of the Rules of the Supreme Court and under the inherent jurisdiction of the Court…"
It is now conceded that the first basis of that application was misconceived. The landlord's solicitors did not know it, but in fact Mr. Burgess had set down his appeal immediately, so nothing turns on that.
The appeal and the application to strike out were both intended to be listed for hearing on Wednesday, 24th January, 1990, but by the preceding day the appellant had not filed either a note of the judgment or any note of the evidence given in the county court. I make no comment as to why it was he had not obtained them. It seems that on 23rd January he visited the Civil Appeals Office, said that the documents were not ready, and was informed that accordingly the appeal would not proceed. A muddle then arose as to whether or not the application to strike out should properly be listed. In the event, as I understand it, it did not initially appear in the printed list but was added in manuscript.
The tenant handed in to the landlord's solicitors a letter on 23rd January saying that the matter was being taken out of the list. They promptly sought to serve on him a letter saying that they intended, to go ahead on the 24th with the application to strike out. It seems, for whatever reason,that he never received that letter. Accordingly on the 24th, when the landlord by counsel appeared to pursue the application to strike out, the tenant did not appear and the application was therefore adjourned.
It was re-listed to be heard on 6th February. The tenant says—but without any justification—that the Civil Appeals Office had informed him that the matter was again being taken out of the list. Be that as it may, he again did not appear. This time all that was in the list was the hearing of the application to strike out. Again that was adjourned until today. So today we have for hearing both the landlord's application to strike out and the tenant's appeal.
At the opening of the hearing this morning Mr. Hamilton for the tenant consented to the appeal being dismissed and to an order being made for the costs of the appeal against his client. Mr. Brock for the landlord, however, wants more than that. He applies for two further orders. First, he applies for the costs also of the application to strike out; and, secondly, he applies that any order for costs we make should in the circumstances of this case be on an indemnity basis as opposed to the standard basis.
Where a tenant's application for a new tenancy under the Landlord and Tenant Act is dismissed, the tenant is entitled to appeal under section 77 of the County Courts Act 1974, assuming that the matter has proceeded in the county court, on questions of both fact and law. By section 64(1) of the Landlord and Tenant Act 1954 the effect of entering an appeal is to extend the tenancy until a date three months after the decision on the appeal is given. So it follows that even an appeal which has no hope of success keeps a tenancy alive until it has been disposed of. Inevitably, therefore, landlords of premises who have secured the defeat of tenants' applications for new tenancies under the Landlord and Tenant Act 1954 are concerned to stop hopeless appeals in their tracks as early as possible. But there is no express provision in the Rules of the Supreme Court for striking out a notice of appeal. However, this court as long ago as 1966 had before it an application to strike out in a case under the Landlord and Tenant Act 1954. That was the case of Aviagents Ltd. v. Balstravest Investments Ltd. [1966] 1 W.L.R. 150. At that stage there was no right of appeal in a Landlord and Tenant Act case in the court on a point of fact. The issue in that case was purely what was the proper rent, because it was conceded that there should be a new tenancy. The rent having been fixed, the tenant then sought to appeal against the rent which was fixed by the county court judge on the ground that the judge misdirected himself and that his order was against the weight of the evidence. The landlord applied for an order that the tenant's notice of appeal be struck out on the ground that the only ground of appeal contained therein was on questions of fact. It was held that the Court of Appeal had inherent power to control its own proceedings by striking out a notice of appeal in a case where an appeal was plainly incompetent, and that where the only question for decision was one of fact the appeal clearly was not competent and so the application succeeded. At page 154B Lord Justice Wilmer said:
"Mr. Ellenbogen [counsel for the tenant] has contended that there is no power in this court to take the drastic step of striking out the notice of appeal. He...
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