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Colchester Estates (Cardiff) v Carlton Industries Plc

Weekly Law Reports The Law Reports Cited authorities 8 Cited in 178 Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date1984
Date1984
Year1984
CourtChancery Division
[CHANCERY DIVISION] COLCHESTER ESTATES (CARDIFF) v. CARLTON INDUSTRIES PLC. [1983 C. No. 5893] 1984 March 28, 29, 30 Nourse J.

Judicial Precedent - Decisions at first instance - Conflicting decisions - Courts of co-ordinate jurisdiction - Later decision reached after full consideration of earlier one - Whether latter to be followed

To ensure certainty in the law, where there are two conflicting decisions of the High Court, the latter decision is to be preferred, provided it was reached after full consideration of the earlier decision, unless the third judge is convinced that the second was wrong in not following the first (post, pp. 697E–F, H–698A).

Where, therefore, a landlord sought leave to take proceedings under section 1(3) of the Leasehold Property (Repairs) Act 1938 for damages for breach of a repairing covenant empowering him to make good wants of repair, or, alternatively, a declaration that leave was not required for recovery of the cost of repairs and where there had been conflicting decisions of High Court judges at first instance on whether leave was required: —

Held, that the second decision, having been arrived at after a full consideration of the first and of further authorities, was not wrong and should be followed and, accordingly, a declaration that leave was not required should be granted.

Dictum of Denning J. in Minister of Pensions v. Higham [1948] 2 K.B. 153, 155 applied.

Hamilton v. Martell Securities Ltd. [1984] 2 W.L.R. 699 followed.

Swallow Securities Ltd. v. Brand (1981) 45 P. & C.R. 328 not followed.

The following cases are referred to in the judgment:

Bader Properties Ltd. v. Linley Property Investments Ltd. (1967) 19 P. & C.R. 620

Hamilton v. Martell Securities Ltd. [1984] 2 W.L.R. 699; [1984] 1 All E.R. 665

Middlegate Properties Ltd. v. Gidlow-Jackson (1977) 34 P. & C.R. 4, C.A.

Minister of Pensions v. Higham [1948] 2 K.B. 153; [1948] 1 All E.R. 863

Police Authority for Huddersfield v. Watson [1947] K.B. 842; [1947] 2 All E.R. 193, D.C.

S.E.D.A.C. Investments Ltd. v. Tanner [1982] 1 W.L.R. 1342; [1982] 3 All E.R. 646

Sidnell v. Wilson [1966] 2 Q.B. 67; [1966] 2 W.L.R. 560; [1966] 1 All E.R. 681, C.A.

Swallow Securities Ltd. v. Brand (1981) 45 P. & C.R. 328

The following additional cases were cited in argument:

Helby v. Matthews [1894] 2 Q.B. 262, C.A.; [1895] A.C. 471, H.L.(E.)

Land Securities Plc. v. Receiver for the Metropolitan Police District [1983] 1 W.L.R. 439; [1983] 2 All E.R. 254

Lep Air Services Ltd. v. Rolloswin Investments Ltd. [1971] 1 W.L.R. 934; [1971] 3 All E.R. 45, C.A.; [1973] A.C. 331; [1972] 2 W.L.R. 1175; [1972] 2 All E.R. 393, H.L.(E.)

Moss' Empires Ltd. v. Olympia (Liverpool) Ltd. [1939] A.C. 544; [1939] 3 All E.R. 450, H.L.(E.)

Lock v. Pearce [1892] 2 Ch. 328; [1893] 2 Ch. 271, C.A.

Photo Productions Ltd. v. Securicor Transport Ltd. [1978] 1 W.L.R. 856; [1978] 3 All E.R. 146, C.A.; [1980] A.C. 827; [1980] 2 W.L.R. 283; [1980] 1 All E.R. 556, H.L.(E.)

Plummer v. Ramsey (1934) 78 Sol.J. 175

Starrokate Ltd. v. Burry (1983) 265 E.G. 871, C.A.

ORIGINATING SUMMONS

By an originating summons dated 15 February 1984 the plaintiff landlord, Colchester Estates (Cardiff) an unlimited company, sought, inter alia, (1) an order giving it leave pursuant to section 1(3) of the Leasehold Property (Repairs) Act 1938 to take proceedings for damages for breach by the defendant tenant, Carlton Industries Plc., of covenants to repair contained in a lease dated 13 April 1964 and assigned to the defendant on 25 June 1980 with over six years to run; (2) a direction under section 2 of the Act of 1938 that the plaintiff should have the benefit of section 146(3) of the Law of Property Act 1925 in relation to the costs and expenses incurred in reference to the breach; (2A) alternatively a declaration that leave was not required by the plaintiff to commence proceedings for the recovery of the costs incurred by it of making good defects, decays and wants of repair under the covenant to repair.

The facts are stated in the judgment.

Christopher Bathurst Q.C. and Michael Brindle for the plaintiff.

Michael Barnes Q.C. and Patrick Talbot for the defendant.

NOURSE J. This case is concerned with a provision in a lease which empowers the landlord to enter and make good at his own cost wants of repair for which the tenant is liable and then to claim repayment of the cost from the tenant. Provisions of that kind have commonly been included in leases since the early part of this century, if not before. The primary question here is whether, before the landlord can take proceedings for the recovery of the cost, the leave of the court is required pursuant to section 1(3) of the Leasehold Property (Repairs) Act 1938. The outcome of that question depends on whether the proceedings are properly to be regarded as proceedings for damages for breach of a covenant to repair, in which case leave is required, or as proceedings for recovery of a debt, in which case it is not.

The plaintiff is an unlimited company called Colchester Estates (Cardiff). The defendant, Carlton Industries Plc., is the tenant of certain leasehold factory premises on the...

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    ...jurisdiction unless persuaded that they were clearly wrong. That is an entirely conventional approach to authority: Colchester Estates (Cardiff) Ltd v Carlton Industries plc [1986] Ch 80; Re Cromptons Leisure Machines Ltd [2006] EWHC 3583 (Ch), [2007] BCC 214. The judge said at [79]: “Wi......
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    ...then the second of those decisions should be followed in the absence of cogent reasons to the contrary: see Colchester Estates (Cardiff) –v- Carlton Industries Plc [1986] Ch 80 at 84E-85H per Nourse J. The present case appears to me to be a fortiori. There were a number of inconsistent firs......
  • Patel v (on the application of Patel) v Secretary of State for the Home Department
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    • Court of Appeal (Civil Division)
    • 1 June 2012
    ...is to be preferred, if it is reached after full consideration of the earlier decision' – a principle applied by Nourse J in Colchester Estates (Cardiff) v Carlton plc [1986] Ch 80, 85. Although that referred to first instance decisions, I consider that it also has force in relation to deci......
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    ...in s.709(1); in USS, Sir John Vinelott held that it was. The judge, applying the general rule stated by Nourse J in Colchester Estates (Cardiff) v. Carlton Industries plc [1986] Ch 80 at 85, found himself constrained to follow USS, as being the later decision. He continued (in paragraph 47 ......
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  • Revisiting the Precedential Status of Crown Court Decisions
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    • Journal of Criminal Law, The No. 85-1, February 2021
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