Canas Property Company Ltd v K. L. Television Services Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE FENTON ATKINSON,LORD JUSTICE |
| Judgment Date | 13 April 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0413-1 |
| Date | 13 April 1970 |
| Court | Court of Appeal (Civil Division) |
[1970] EWCA Civ J0413-1
The Master of The Rolls (Lord Denning)
Lord Justice Fenton Atkinson and
Lord Justice Mlgaw
In The Supreme Court of Judicature
Court of Appeal
Appeal of defendants from judgment of His Honour, Judge Herbert on 17th June, 1969, at Westminster County Court.
Mr. KENNETH MUCKER (instructed by Messrs. Offenbach & Co.) appeared on behalf of the appellant defendants.
Mr. L.A. BLUNDELL Q.C., and Mr. BENJAMIN LEVY (instructed by Mr. G.L. Leigh) appeared on behalf of the respondent plaintiffs.
This case raises the question:
If a landlord brings an action for forfeiture, when does the lease come to an end? Does it end immediately the writ is issued? or only when the writ is served?
The facts are simple: By a lease dated 15 July 1964, Five Counties Stores Ltd. let a shop and dwelling house at 49/51 Wilmslow Road, Rusholme, Manchester, to K.L. Television Services Ltd. The term was for 21 years from the 15th July 1964. The rent was £800 a year, payable by equal quaterly payments in advance on the usual quarter days. There was a proviso for re-entry in the usual form in case the rent was in arrear for 21 days, whether legally demanded or not. It said that in that event "it shall be lawful for the lessor to re-enter and the demised premises peaceably to hold and enjoy thence forth as if these presents had not been made".
Afterwards Five Counties Stores Ltd, assigned the reversion to Canas Property Company Ltd., and K.L. Television then assigned the lease to one F. Mohammed.
The assignee Mohammed failed to pay the rent due in advance on the 25th December 1967 and the 25th March 1968. The lessors waited for 21 days and then on the 25th April 1963, issued a plaint in the Manchester County Court against F. Mohammed claiming:-
(a) Possession of the premises,
(b) The rent of £400 due on the 25th December 1967, and 25th March 1968.
(c) Liberty to apply for mesne profits from the 24th June 1968 to the date of possession.
Seeing that those proceedings were in the County Court, the lessors solicitors did not themselves serve the process. They left it to the County Court Registran. He acted under the County Court Rule and sent the summons by post to Mr. F. Mohammed. He had gone away. So the postman brought it back. The Registrar notified the lessors on the 14th May 1968 in these words:
"Take Notice that the summons in this action has not been served for the following reason: Returned by G.P.O. Gone away".
It was clear, therefore, that the summons had not been served, see ( Regina v. County, of London Quarter Sessions Appeals Committee, Ex parte Rossi 1956 1 Q.B. 682).
Having got nothing by those proceedings against the assignee Mohammed, the lessors did not go on with the proceedings aginst him. They sued the original lessees, K.L. Television Services Ltd., on the covenants in the lease, as, of course, they were entitled to do. On the 5th July 1968, they issued a writ in the High Court in which they claimed, not only the two quarters rent due in advance on the 25th December 1967, and the 25th March 1968, but also the quarter's rent due on the 24th June 1968. K.L. Television Ltd, admitted those first two quarters rent, but denied they were liable for the rent due on the 24th June 1968. They said that the lessors, by bringing the action against Mohammed on the 25th April 1968, had forfeited the lease on that date. So no rent was payable thereafter. Whereas the lessors said that, as the summons was not served on Mohammed, the lease was not forfeited on that day or at all.
The point is of considerable importance to the parties because, if the lease was forfeited by the issue, of the summons, the lessors cannot make K.L. Television Ltd. liable for any rent after the 25th April 1968: whereas, if it has not been forfeited, K.L. Television Ltd. will be liable to pay the rent for the remainder of the term of 21 years.
The point has never before come up for decision. Conflicting views were expressed on it in ( Car and Universal Finance Co. Ltd. v. Caldwell 1965 1 Q.B. 525). Sitting at first instance, I myself said, giving judgment straight off the reel (at page 532), having in mind ( Elliott v. Boynton 1924 1 K.B. 236): "If a lessor elects to determine a lease for forfeiture, it is sufficient for him to issue a writ for possession. The forfeiture dates from the issue of the writ, not from the time it isserved". But on appeal Lord Justice Upjohn, giving a reserved judgment, said (at page 556):- "the election to determine arises only on service of the writ; until then the plaintiff may change his mind and tear it up".
Which is right? On principle the forfeiture only dates from reentry. The proviso says expressly that the lessor "may re-enter". But there is a long line of authority which says that the bringing of an action to recover possession is equivalent to an entry for the forfeiture. Hence it has often been said that the issue of a writ is sufficient to determine the lease. Mr. Zucker has supported this "view in a learned argument before us. He started with the old action of ejectment. It was commenced by a writ coupled with a declaration which assumed a fictitious entry and ouster. Hence Mr. Tucker argued that the issue of the writ itself was tantamount to re-entry. I have looked up the procedure in ejectment. It is described by Blackstone in his Commentaries (III page 202-3) and illustrated by the forms in his Appendix II: and it is explained by Maitland with his usual felicity in his lectures on the Forms of Action (page 352). My researches lead me to believe that Mr. Zucker's argument is erroneous. It seems to me that the action of ejectment only started when the party claiming title delivered to the party in possession the declaration together with a notice purporting to be signed by the casual ejector "your loving friend William Stiles". Until that moment all was. fiction. Reality only started with delivery of the notice.
In any case, however, I think that Mr. Zucker's argument cannot stand in the face of Jones v. Carter (1346) 15 M. & W. 718. A lease was made for 14 years from 29th September 1844, rent payable half-yearly. Rent was paid for the half-year up to the 25th March 1845. On the 19th May 1845, the lessor served on the lessee a declaration in ejectment. Nothing more of any consequence happened in those proceedings. The lessor didnot take possession. In January 1846, the lessor sued for the half-year's rent due on the 29th September, 1845. The Court of Exchequer held that, by service of the proceedings, the lessor had forfeited the lease and could not recover the rent falling due after the forfeiture. The judgment of the Court was delivered by Baron Parke, He makes it clear that it was the service of the proceedings that effects the forfeiture. He said (on page 726):
"We think that the bringing of an ejectment for forfeiture, and serving it on the lessee in possession, be considered as the exercise of the lessor's option to determine the lease; and the option must be exercised once for all for, after such an act, by which the lessor treats the lessee as a trespasser, the lessec would know that he was no longer to consider himself as holding under the lease, and bound to perform the covenants contained in it; and it would be unjust to permit the landlord again to change his mind, and hold the tenant responsible for breach of duty after that time."
That is a case of the highest authority. Baron Parke...
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