Cowan v Wrayford
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SOMERVELL,LORD JUSTICE DENNING,LORD JUSTICE ROMER |
| Judgment Date | 16 October 1953 |
| Neutral Citation | [1953] EWCA Civ J1016-5 |
| Judgment citation (vLex) | [1953] EWCA Civ J1016-1 |
| Court | Court of Appeal |
| Date | 16 October 1953 |
[1953] EWCA Civ J1016-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
LORD JUSTICE SOMERVELL
LORD JUSTICE DENNING and
LORD JUSTICE ROMER
MR PETER BRISTOW (instructed by Messrs Smith a Hudeen, agents for messre Harold Michelmore & Company, Newton Abbot) appeared as Counsel on behalf of the Appellant (Plaintiff).
MR ANTHONY CRIPES (instructed by messrs balleys, shaw & Gillett, agents for Messrs Tozers, Newton Aboot) appeared as Counsel on behalf of the Respondent (Defendant).
This is an appeal from a decision of His Honour Judge Pratt. Before I say what the issues were, I think it would be convenient if I referred to the section of the Statute under which the questions arise. It is section 24 of the Agricultural Holdings Act, 1948. Sub-section 1 says this: "Where notice to quit an agricultural holding or part of an agricultural holding is given to the tenant thereof, and not later than one month from the giving of the notice to quit the tenant serves on the landlord a counter-notice in writing requiring that this subsection shall apply to the notice to quite, then, subject to the provisions of the next following subsection, the notice to quit shall not have effect unless the Minister consents to the operation thereof". Sub-section 2: "The foregoing subsection shall not apply where" — I am now going to read and read only the words which I think are material to the present case — "(d) at the date of the giving of the notice to quit the tenant had failed to comply with a notice in writing served on him by the landlord requiring him…. within such reasonable period as was specified in the notice to remedy any breach by the tenant that was capable of being remedied of any term or condition of his tenancy which was not inconsistent with the fulfillment of his responsibilities to farm in accordance with the rules of good husbandry, and it is stated in the notice to quit that it is given by reason of the matter aforesaid". Of course, in a case where the landlord thinks he is entitled to operate those words the tenant may desire to dispute that fact. Section 34 provides that "Where the tenancy of an agricultural holding terminates by reason either (a) of a notice to quit the holding given by the landlord; or (b) of a counter-notice given by the tenant under section thirty-two of this Act after the giving tohim of such a notice to quit part of the holding as is mentioned in that section; and in consequence of the notice or counter-notice, as the case may be, the tenant quits the holding, then, subject to the provisions of this section, compensation for the disturbance shall be payable by the landlord to the tenant in accordance with the provisions of this section: Provided that compensation shall not be payable under this subsection where the operation of subsection (1) of section twenty-four of this Act in relation to the notice to quit the holding or part, as the case may be, is excluded by virtue of" — leaving out inessential words — "paragraph (d) of sub-section 2 of that section". So that means that there is a difference not only in procedure, but a financial difference affecting both landlord and tenant according as to whether the landlord is able to establish a right to pressed under the words I have read from sub-section 2 or has no case for bringing himself within those words, but serves an ordinary notice and does in fact get the Minister's consent if the counter-notice is served. In one case compensation for disturbance will be payable and in another case it will not.
What happened here was that the landlord or his agents on 29th September, 1951, served a notice to remedy certain defects, and according to the Notice they were to be remedied by the 21st day of December, 1952, that is, some fifteen months after the date of the Notice. It is a fair inference that the landlord's agents or those who served the Notice which I am about to read believed that that Notice to Remedy was a notice to remedy by the 21st December, 1951, and not 1952, because on the 22nd December, 1951, they served on the tenant a document which is headed "Notice to quit by landlord to Tenant stating reasons under Section 24(2) of the Agricultural Holdings Act, 1948. I, the undersigned, hereby give you noticeto quit and deliver up on the 25th day of December, 1952, possession of the holding known as". so-and-so. Then: "This Notice is given for the following reasons: That you have failed to remedy the breaches of your Tenancy Agreement as set out in a Notice served on you on 29th September, 1951, viz: to cut off and make the boundary fence on the West of" so-and-so — I need not read the details.
What happened than was that time went by and the tenant remained in possession. On the 16th February. 1953, Particulars of Claim were delivered under which the Plaintiff claimed possession, and this document I have just read of the 22nd day of December, 1951, was relied on as terminating the tenancy.
The Defence admits the Notices in paragraph 1. Paragraph 2 says: "The said tenancy has not been effectually determined for while the Defendant admits receipt of the purported Notice to Quit (hereinafter called 'the Second Notice') it alleges failure to comply with the First Notice and was expressed to take effect during the period allowed to the Defendant to carry out the said works required by the First Notice and there was therefore at the time of service of the Second Notice no ground as required by Section 24(2)(d) entitling the Plaintiff to serve the came".
The matter came before the learned Judge and he decided that the Notice was not a valid notice to quit. It is not now suggested, and indeed could not be suggested on the part of the landlord once the dates are looked at, that the Notice to Quit was a notice which was within the terms of section 24(2)(d), because to come within section 24(2)(d) the tenant has to be shown to have failed to comply with a notice requiring him to remedy within a reasonable time, and so on. At the time when the Notice to Quit in this case was served in the time specified, what I will call the remedy notice had not elapsed andtherefore the conditions laid down in section 24(2) had not been fulfilled. It therefore admittedly cannot operate under that sub-section. To succeed the landlord must satisfy us that this was a good Notice to Quit irrespective of the breaches or alleged breaches referred to in the document which I have read and irrespective of section 24(2). It if was a good notice irrespective of all these matters, then he submits (and this again is not disputed) that the tenant did not serve a counter-notice requiring that the Minister's consent should be sought and that the notice should not be operative unless that consent was obtained. In other words, the landlord submits that the Court should treat this Notice as if there was no reference in it to section 24(2).
Many points have been regarded as obscure with regard to notices to quit, but one point is plain and that is that a notice to quit to be good must be clear and unambiguous. That point will be found laid down and applied by this Court in P. Phipps & Company (Northampton and Towcester Breweries) Ltd. -v- Rogers, 1925, 1 King's Bench, page 14. The first point, therefore, as it seems to me is whether this document brought home to the tenant in clear and unambiguous language that the landlord was intending to terminates the tenancy subject to sub-section 1 irrespective of any breaches by the tenant. I do not think it did. We were invited, and I think rightly, to consider this document and the meaning it would convey to a reasonable mind in the light of the Act. If one reads the Notice to Quit with the Act, in the first place, of course, it is plain when you read the two documents together that the case is not within section 24(2)(d), because the time for remedy has not elapsed. In those circumstances it might well be regarded as a piece of waste paper, something which is based, as I think it was in fact based, on a misconception as to the time limit in the original Notice to Remedy.If the tenant went on to assume that the landlord's agents had read the first document on which this second document was based (perhaps a reasonable assumption) then, I think, he might well have concluded that this was on attempt in advance to bring about a termination if, but only if, he did in fact fail to remedy in the time which the earlier notice had given. It was not suggested that if that was, as I think it was, a natural interpretation it would be a clear, unambiguous and valid Notice to Quit. It would I think probably fall under the principle which says notices to quit must not be conditional.
We were however invited to consider the matter on a rather wider ground, and I think myself that it is right to do so, because this Act does affect a great number of people, and it would be right that we should seek to give what guidance we can on this wider point. If one assumes in the present case that the original Remedy Notice had been limited to expire on the 21st December, 1951, and then, as happened here on the 22nd September, 1951, a notice to quit in the form of the Notice in this case giving reasons was served; and then the tenant either by going to arbitration or, as this Court held in Budge -v- Hicks by going to the County Court succeeded in showing that the landlord's claim failed not in form but on the facts, could the landlord maintain that he relied in the alternative on this document as what I would call an unqualified notice to quit not in any way based on section 24(2), in other words, one to which section 1 applies, and then say "As you did not serve your counter-notice the Minister's consent is not necessary". I do not think he could have done. This notice states on the head of it that it is a "Notice to Quit by...
To continue reading
Request your trial
-
Mills v Edwards
...can be treated as so much waste-paper. 12 This principle was clearly laid down in this Court in the case of ( Cowan v. Wrayford 1953 Weekly Law Reports 1340). That was a case in which the landlord served a notice to quit on the 5th December, 1952. This notice stated that it was being served......
- Hammon v Fairbrother
- French v Elliott
-
Crown Estates Commissioners (Plaintiffs Respondents) Philip Browning Allingham (First Defendant Appellant) A. Williams Second (Defendant Appellant)
...so that "the ancient script of the common law has been over-written by the statute, and the two have to be integrated together." see Cowan v. Wrayford 1953 1 W.L.R. 1340 at page 1346. If the farmer is a good farmer and pays his rent regularly, the landlord cannot in practice get the tenant ......