Chiswell v Griffon Land and Estates Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE ORR,LORD JUSTICE ROSKILL |
| Judgment Date | 06 February 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0206-3 |
| Date | 06 February 1975 |
| Court | Court of Appeal (Civil Division) |
[1975] EWCA Civ J0206-3
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: His Honour Judge I for Lloyd Wandsworth County Court)
Lord Justice Megaw
Lord Justice Orr and
Lord Justice Roskill
In the Matter of the Landlord and Tenant Act 1954 And In the Matter of 5 Sheen Road, Richmond-upon-Thames:
Mr. BARRY PAYTON (instructed by Messrs. Yahuda & Co.) appeared on behalf of the Appellant (Applicant).
Mr. DEREK WOOD (instructed by Messrs. Williams & James, Warren & Lacey) appeared on behalf of the Respondents (Respondents).
(without calling upon Counsel for the Respondents)
I shall ask Lord Justice Orr to deliver the first judgment.
The appellant in this case applied in the Wandsworth County Court, under the provisions of Part II of the landlord and Tenant Act, 1954, for a new lease of business premises at 5 Sheen Road, Richmond. He now appeals against an order made on the trial of a preliminary issue in those proceedings by His Honour Judge I for Lloyd on the 29th October of last year that the court was debarred from entertaining the applicants application by reason of his failure to notify the respondent landlords, within two months after his receipt from them of a notice terminating the tenancy, of his unwillingness to give up possession of the premises.
The provisions of the 1954 Act which are directly relevant to this appeal are contained in sections 24 to 29 and section 66. Section 24, by sub-section 1, provides that "A tenancy to which [part II] of this Act applies shall not come to an end unless terminated in accordance with the provisions of this Part of this Act; and, subject to the provisions of section 29 of this Act, the tenant under such a tenancy may apply to the court for a new tenancy (a) if the landlord has given notice under [section 25 of this Act] to terminate the tenancy, or (b) if the tenant has made a request for a new tenancy in accordance with section 26 of this Act".
Section 25 of the Act provides, in sub-section 1, "The landlord may terminate a tenancy to which this Part of this Act applies by a notice given to the tenant in the prescribed form specifying the date at which the tenancy is to come to an end…"; and sub-section 5 of that section provides: "A notice under this section shall not have effect unless it requires the tenant, within two months after the giving of the notice"– that is the landlord's notice – "to notify the landlord in writing whether or not, at the date of termination,the tenant will be willing to give up possession of the property comprised in the tenancy".
Section 29 of the Act provides, in sub-section 1, "Subject to the provisions of this Act, on an application under sub-section (1) of section 24 of this Act for a new tenancy the court shall make an order for the grant of a tenancy comprising such property, at such rent and on such other terms, as are hereinafter provided". Subsection 2 provides: "Where such an application is made in consequence of a notice given by the landlord under section 25 of this Act, it shall not be entertained unless the tenant has duly notified the landlord that he will not be willing at the date of termination to give up possession of the property comprised in the tenancy". Subsection 3 provides: "No application under sub-section (1) of section 24 of this Act shall be entertained unless it is made not less than two nor more than four months after the giving of the landlord notice under section 25 of this Act or, as the case may be, after the making of the tenant's request for a new tenancy".
Section 66 of the Act, in sub-section 4, provides that section 23 of the landlord and Tenant Act, 1927, shall apply for the purposes of the 1954 Act; and that section provides as follows: "Any notice… under this Act shall be in writing and may be served on the person on whom it is to be served either personally, or by leaving it for him at his last known place of abode in England or Wales, or by sending it through the post in a registered letter addressed to him there…" As a result of the Recorded Delivery Service Act, 1962, the same effect as was given by that section to a registered letter now falls to be given to a letter despatched by the recorded delivery service.
In the present case it is common ground that the document with which we are concerned, to which I shall be referring in a moment, was not sent either by registered post or by recorded delivery service and accordingly section 23 of the Act of 1927 does not apply.It was argued on behalf of the applicant tenant in the court below that what did apply was section 26 of the Interpretation Act, 1889, which is the only remaining statutory provision to which I find it necessary to refer. Section 26 provides as follows: "Where an Act passed after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve', or the expression 'give' or 'send', or any other expression, is used, then, unless the contrary intention appears, the service shall be deemed to be effected by properly addressing, prepaying, and posting, a letter containing the document, and – and I emphasise the following words – "unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post".
The facts of the case are, briefly, these. On the 19th April, 1974, there was sent to the appellant by the landlords' solicitors, by recorded delivery post, a notice terminating his tenancy with effect from the 1st December of that year. That letter was received by the appellant on the 22nd April. He subsequently took the notice to his solicitors, Messrs. Yahuda & Co. There was evidence before the judge from both Mr. Yahuda and a member of his staff that on the 12th June a letter addressed to the landlords' solicitors was dictated by Mr. Yahuda, transcribed by his audio-typist, a Mrs. De Buisson, brought by her for Mr. Yahuda to sign, signed by him, a carbon copy being retained, and handed to a Mrs. Turner for posting and thereafter entered by her in the post book under that date. It was stamped "First Class" mail, but was not registered or despatched by recorded delivery service; and it was posted by Mrs. Turner, according to her evidence, on her way home that day from the office at about 5.30 in a pillar box, being one of two letters which she posted on that evening. Mr. Yahuda in his evidence said that it was not his practice, in addressing a letter to another firm of solicitors, to register it or to despatch it by recorded delivery service,and that he had not expected to receive an acknowledgment of the notice which was contained in the letter of the 12th June. As I have said, there was evidence on these matters not only from him but from Mrs. Turner.
At the hearing, evidence was also given by two witnesses for the respondents as to the system prevailing in the office of the respondents' solicitors. The first witness was a Mr. Watson, a member of the Corps of Commissionaires, who is in charge of that firm's general office. He gave evidence as to the procedure which he followed with regard to incoming mail. His evidence was that that mail would normally amount to something like 500 letters by the first post in the day, and he described the system by which the letters which were the concern of particular partners were put in individual baskets for them, and that a partner who found something in his basket which was not his concern would then pass it on to another partner or might bring it back to Mr. Watson, who would then try to find out who was dealing with the matter. If he failed entirely to find out, he would telephone the sender of the letter. The letter with which we are here concerned did not in fact bear a reference of the respondent firm upon it, but there is no reason to suppose that there were not many letters coming in to a firm of solicitors which would not bear such a reference. The evidence of Mr. Watson was that letters had sometimes gone missing, but he had always been successful in finding them.
The evidence given by Mr. Davis, the partner dealing with this particular matter, was that he had searched his office for the letter in question and failed to find it; and that four of his partners were well aware that he was handling that matter and, if they had received the letter, would have passed it to him. In cross- examination he accepted that there were two cases to his knowledge where letters had gone astray, and he accepted that it was a possible thing but said that it was rare. I pause to say that if infact there have been only two cases of that happening of which he was aware, in the case of a firm receiving some 500 letters a day, it would not be at all a bad record.
It was not discovered until early July, 1974, by the appellant's solicitors that receipt of their letter by the respondents' solicitors was in dispute. How it came to light was that on the 1st July the appellant's solicitors notified the respondents' solicitors that they had made application that day to the County Court for a new lease. They referred in that letter to their letter of 12th June, but on the 3rd July the respondents' solicitors wrote to say that they...
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