Cornish v Brook Green Laundry Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jenkins,Lord Justice Romer |
| Judgment Date | 23 January 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0123-1 |
| Court | Court of Appeal |
| Date | 23 January 1959 |
[1959] EWCA Civ J0123-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Jenkins
Lord Justice Romer and
Lord Justice Pearce.
MR JOHN MONTGOMERIE (instructed by Messrs Goodman Derrick & Co.) appeared as counsel for the Appellants.
MR T. MICHAEL EASTHAM and MR GABRIEL COHEN (instructed by Messrs Beddington Hughes and Hobart) appeared as Counsel for the Respondent.
The Trustees of the London Settled Estates of the Second Duke of Westminster did not appear.
: The Judgment about to be read by Lord Justice Romer is the Judgment of the court in the case.
This is an appeal by the Respondents, Brook Green Laundry Limited (hereinafter called "Brook Green") against an Order of His Honour Judge Blagdon dated the 22nd may, 1958, whereby it was ordered that a new tenancy should be granted to the applicant, Mrs Cornish, of the premises, 23 Lower Belgrave Street, Eaton Square, in the county of London. The tenancy directed by the said Order to be granted was to be for a period of 10½ years less three day from Michaelmas 1956 at a rent of £250 per annum from date.
The premises, No. 23, Lower Belgrave street, consist of a ground floor and basement, and this accommodation has been occuppied by Mrs cornish and by her mother (a Mrs Paulin) before her for some 50 years for the purpose of a confestioners, news agents, stationers and tobacconists shop. The premises immediately adjoining No. 23, and also consisting of a ground floor and basement, are known as no. 23a, Lower Belgrave Street and are and have for some years past been occuppied by Brook Green.
The owenrs of the freehold interest in both 23 and 23a Lower Belgrave Street are the Trustes of the Westminster Settled Estates (hereinafter referred to as "the Trustees"). Prior to 1949 Mrs Paulin held a direct tenancy of No. 23 from the Trustees, but in that year the Trusteos granted a lease to Brook Green of both 23 and 23a for 7 years from Michaelmas 1949. On the 10th may, 1950, Brook Green granted an underlease of No. 23 to Mrs Paulin for the term of their own lease less the last three days. Accordingly, Brook Green's contractual lease of No. 23a expired on the 29th September, 1956, and the sub-lease of No.23 (then vested in Mrs cornish) expired 3 days earlier. As, however, Brook Green were using No. 23a for business pruposes, they become entitled in respect of their tenancy to the protection of Part II of the Landlord and Tenant Act, 1954, as also did Mrs Gornish in view of her user of No. 23 as a shop. The rsult of this protection, putting it generally, was to continue both the lease and the sub-lease until they superseded by new tenancien or determined by appropriate notices served under the Act. Both Brook Green and Mrs Cornish continued in occupation of their respective premises, and in November 1956 certain tentative correspondence passed between them or their respective solicitors as to the granting of a further sub-lease to Mrs Cornish on the assumption that Brook Green would obtain a new head lease from the Trustees. Apart from this correspondence, no step was taken by any of the parties concerned until the 18th january, 1957, when the Trustees' solicitors wrote to Brook Green enclosing a formal offer of a new lease. Some of the terms of the offer, which was partly printed and partly written, are of considerable importance in the case, and, so for as material, were as follows: "Dear sirs, 23, Lower Belgrave Street. In answer to your application, we hereby, on behalf of the Special Executors of the late Duke of Westminster, make the followin offer, namely subject to your first carrying out the works specified in the schedule hereto, without prejudice to the obligation that the rent and covenents under the head-lease should be duly paid and performed up to its expiration, a Rversionary Lease would (subject as after mentioned and to you written acceptance of these terms within the time after specified) be granted to your Company of No. 23, Lower BElgrave street, London, upon the following terms: (1) The terms of years to be 10½ years from Michaelmas Day 1956 to Lady Day 1967". Then after a reference to a cash payment, "the rent, as from 29th September, 1956, to be £400 a year". "(3) The property to be leased subject to all rights, basemets and privileges of adjacent or neighbouring premises, and the lease also to contain all such clauses and covenents as are contained in a form marked (blank) dated January 1957, endorsed No. 23 Lower Belgrave Street and sent herewith for perusal and return. Then by Clause 5: "Your company to carry out and complete the works mentioned in the schedule hereto to the satisfaction in all respects of the lessors or their estate surveyor by the 25th day of March, 1957. and thereupon and upon payment of the costs have mentioned the lease to be granted and taken up by your company". Then by Clause 6 it is provided: "These terms (which are not transferable) are open to your company's acceptance in writing by affixing the company's seal with the usual formalities to the acceptance subjoined and returning this form to us within three weeks from this date". The schedule of works required were: "(1) Make good the pieces of broken parapet oversailing course on the front elevation of the premises. (2) Carry out such sanitary works (if any) as may be necessary". Then the form of acceptance which appears below that and was filled in and dated the 4th February, 1957, and sealed by Brook Green, was: "We hereby accept the foregoing offer and agre to carry out the said works, to take up the lease upon tender thereof and to pay the costs as mentioned".
The subsequent history of the matter down to the commencement of the present proceedings sufficiently appears from the correspondence which passed between the solicitors acting respectively for Brook Green (Messrs Goodman, Derrick & Co.) Mrs Cornish (Messrs Beddington, Hughes & Hobert) and the Trustees (Messrs Boodle Hatfield & Co.), and it will be convenient to refer to the relevant letters. On the 12th February, 1957, Messrs Goodman, Derrick & Co. writs to Messrs Beddington: "Dear Sirs, 23, Lower Belgrave Stret. Further to our letter of 28th November last, our clients are in process of negotiating a new head lease of these priemises, but the negotiations are not yet completed. In view of th fact that you client's lease will already have expird, we would suggest that she remain in possesion for the time being as monthly tenant but otherwise on the terms of the existing lease". On the 9th April, 1957, Messrs Goodman, Derrick & Co. write to messrs Boodle, Hatfield & Co.: "Dear Sirs, 23, Lower Belgrave Street. Further to our letter of 21st ultime, our clients have now considered this matter further, and at thier request we enclose herewith the original agreement which has been duly signed. The above is forwarded on the understanding please, that you will let us have the lessors' part of the agreement in exchanges, and also the new draft lease".
Then on the 13th May, 1957, Messrs goodman, Derrick & Co. wrote to messrs beddingtons: "Dear Sirs. We refer to our correspondence of February last, and should state that our clients are still in course of carrrying out various negotiations in respect of the removal of their head lease. The head lease will in fact be back dated to the expiration of the old one in September last, and we feel therefore that we should mention to you that any fresh arrangements entered into with your clients should take this into account". On the 25th June, 1957, Messrs Boodle Hatfield & Co. wrote the Messrs Goodman, Derrick & Co.: "We now enclose the draft lease for your final perusal", and aftr a reference to insurance, the final paragraph says: "If the schedule of condition mentioned in Clause 3 has now been agreed betweent he surveyors for our respective clients, you might be so kind as to insert its date and let us have a copy which can be signed by us on behalf of our clients". I gather that on the 4th July there was a letter from Messrs Goodman, Derrick & Co. to Mrs Cornish with reference to alternative accomodtion.
On the 8th July Messrs Goodman, Derrick & Co. wrote to Messrs Boodle Hatfield & Co., and in the second paragraph they say: "In the meantime we enclose herewith a copy of th Schedule of Condition, which we understand has been agreed by the surveyors to both partgies, and you will no doubt wish to confirm this". On the 12th July Messrs Beddingtons wrote to messrs Goodman, Derrick & Co.: "We refer to your letter of the 4th Instant and have now taken instructions. Our client fells that she could not carry on her business in the part of the premises occupied by your clients and in these circumstances we should be glad to have your proposals for a new lease of the premises at present occupied by our client. We have, solely for the protection of our client's interests and not as any hostile step, served notice on the Duke of Westminster as the competent landlord for the purposes of Part II of the Landlord and tenant Act 1954, and enclose a copy of that notice for your information. When sening the notice to the Duke, we have informed him that we are in negotiation with you and that the notice is served only for the prupose of protecting the interests of our client".
On the 1st August Messrs Beddington wrote in messrs Goodman, Derrick & Co.: "We should be glad if we might hear from you on this matter. You will recall that you told us that your client had agreed with the freeholder terms for the grant of a new lease and it is, of course, desirable that we should similarly conclude terms with you having regard to the period fixed by the Act". On the 9th...
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