Crewe Services & Investment Corporation v Gerald Edward Silk

JurisdictionEngland & Wales
Judgment Date02 December 1997
Judgment citation (vLex)[1997] EWCA Civ J1202-3
CourtCourt of Appeal (Civil Division)
Docket NumberCCRTF 96/1370/E
Date02 December 1997

[1997] EWCA Civ J1202-3





Royal Courts of Justice


London WC2A 2LL


The Master of the Rolls

(Lord Woolf)

Lord Justice Millett

Lord Justice Robert Walker

CCRTF 96/1370/E

Crewe Services & Investment Corporation
Gerald Edward Silk

MR C DARTON (Instructed by Messrs Burley & Geach, Petersfield, GU3 3AE) appeared on behalf of the Appellant

MR S JOURDAN (Instructed by Messrs Brutton & Co, Fareham, Hants) appeared on behalf of the Respondent


LORD WOOLF, MR: For the reasons set out in the judgment of Lord Justice Robert Walker, the appeal is allowed.


This is an appeal from an order of Mr Recorder J.P. Burgess made in proceedings in the Winchester Crown Court after the Judge had given two written judgments, one on 31 July 1996 after a two-day hearing in July 1996, and the other on 10 September 1996 after a further hearing on 16 August. The order under appeal is not in the core bundle and there seems to be some doubt as to whether it has ever been perfected. That is regrettably only one of several unsatisfactory features of the case.


The appellant Mr Gerald Silk—the defendant in the proceedings—is the tenant of Church Farm, Prior's Dean, Hampshire. It is a farm of a little over 150 ha which was let by a tenancy agreement dated 27 February 1970. The farm was originally used for stock but is now, and has been for many years, an arable farm. The parties to the tenancy agreement were (1) Sir William Jaffray Bart (who had just attained full age under the transitional provisions of Family Law Reform Act 1969) as landlord; (2) Mr Silk as tenant; and (3) three brothers of Mr Silk, who farmed in partnership with him, as guarantors. None of the guarantors has been joined as a party in the proceedings.


The tenancy agreement created a tenancy from year to year protected by (as it is now) the Agricultural Holdings Act 1986, replacing the Agricultural Holdings Act 1948. By cl.4 there were reserved to the landlord sporting rights and timber, but no reliance was placed on that point either below or in this court. There were numerous tenant's covenants, of which the most material for present purposes were in cl.8(A)(i) (repair of buildings and fixtures), cl. 8(B)(ii) (maintenance of hedges), cl. (B)(iv) (use of preservatives on buildings and structures), cl.9 (to permit the landlord entry on notice for the purpose of carrying out repairs, and to pay the cost), cl.14(i) (to farm in accordance with the rules of good husbandry) and cl.14 (iii) (to destroy weeds).


In 1981 the freehold reversion to the farm became vested in the plaintiff Crewe Services and Investment Corporation ("Crewe"), a body which has an address in Vaduz, Liechtenstein and so is presumably incorporated there. There is no evidence as to whether Crewe owns other land, either tenanted or in hand, in the vicinity. It is shrouded in a certain amount of mystery, as Liechtenstein bodies often are.


On 4 August 1994 (after its agent, Mr Craig Horton, had in June prepared and served a schedule of disrepair and other matters of complaint) Crewe commenced proceedings in the Winchester County Court. Apart from some minor complaints not relevant to this appeal, the particulars of the claim alleged breaches of the covenants in cl.8(A)(i), 8(B)(ii) and (iv), and 14(i) and (iii) of the tenancy agreement. Crewe claimed damages and specific performance, but the latter claim was abandoned, because of the principle in Hill v Barclay (1810) 16 Ves Jun. 402.


The amended particulars of claim quantified the damages claimed at £32,484 -odd, including VAT of £4838—odd. The largest items were about £15,000 (plus VAT) for the complete re-roofing of a corrugated iron barn, and about £7,500 plus VAT for replanting and protecting (with a rabbit-proof wire fence) about 600m of hazel hedge. There was also about £3000 plus VAT for oak gates and about £2000 plus VAT for cutting and laying about 130m of overgrown hedge. The defence denied all breaches and also denied any loss. There was a counterclaim that I need not go into: it failed at trial.


There was, as I have said, a two-day hearing in July 1996. The Judge heard oral evidence from Sir William Jaffray and Mr Horton for Crewe, and from Mr Silk, Mr Iain Curry (an agent engaged by Mr Silk) and others on the other side.


The Judge reserved judgment and sent his written judgment to the parties on 31 July. The Judge ruled on liability only. He found that Mr Silk was in breach of covenant in five respects, that is —

(i) failure to destroy weeds (some fields were affected by bracken, brambles and so on);

(ii) failure to cultivate one particular field, (OS 1600, which was not eligible for any set-aside scheme);

(iii) allowing deterioration of the barn (but not, the Judge specifically held, so as to make him liable for complete re-roofing);

(iv) failure to maintain hedges (but the Judge expressed doubt about the need for rabbit-proof fencing); and

(v) failure to maintain gates.


The Judge ended his judgment with some observations as the measure of damages. He referred to Landeau v Marchbank [1949] 2AER 172 and Jones v Herxheimer [1950] 2KB 106 (cases which I shall have to return to). He expressed the wish to hear further submissions as to quantum having regard to his findings. Some remarks made by the Judge at the resumed hearing suggested that he had intended to permit further evidence to be adduced. But if he did, he failed to make that clear to the parties. His reference to "further submissions" is hardly consistent with hearing further evidence, nor is the fact that only one hour was allocated for the further hearing.


It took place on 16 August, at Bournemouth. Mr Darton (appearing below, as he has in this court, for Mr Silk) applied for an adjournment so that he could appeal. An adjournment was refused. Mr Darton explained to this court that he had already obtained instructions to appeal because he felt that the Judge had already made a fundamental error about quantum in directing a further hearing at which (as Mr Darton understood it) the items claimed in the amended particulars of claim were simply going to be considered seriatim, as with a Scott schedule.


There is a transcript of what occurred at the resumed hearing and I have to say that it does not make very edifying reading. Mr Snatt (the solicitor representing Crewe) did treat it like a hearing on a Scott schedule, launching into the need for rabbit-proof fencing to protect newly-planted hedges. Mr Snatt referred to quotations from contractors as the only evidence. Mr Darton began by making some general submissions, referring to the burden of proof and to s.18(1) of the Landlord and Tenant Act 1927. The Judge pressed him for comments on the particular figures presented on behalf of Crewe. Counsel responded that the evidence was closed and that it was not for the defendant to disprove the plaintiff's case.


Mr Darton also submitted to the Judge—and it is a point that has assumed some importance in this court—that he had made no finding as to whether Crewe intended, if it recovered damages, to lay them out by itself carrying out the necessary work. Mr Horton had been asked about that in cross examination and said that he had no instructions. Mr Darton asked the Judge, in his further judgment, to make a finding on that point. The Judge said that he was prepared to do so, but did not think it really made a difference. In the event the Judge did not, in his further written judgment sent out on 10 September 1996, make a finding on that point, at any rate in clear terms. At an earlier stage the Judge had said that he did not intend to make any order in respect of the barn.


The further judgment began with a reference to Emmet on Title 19th ed.para 26–188 and to Jones v Herxheimer. It continued:

"In this case it is obvious that the failure to maintain the gates and hedges, to spud up and destroy weeds and to permit the roof of the barn to continue unrepaired has caused the value of the reversion in the farm to deteriorate. If matters are not put right the landlord will receive back at the end of the term a farm, the value of which is considerably diminished to what it would otherwise have been. Counsel for the tenant was concerned as to what would happen to the moneys required to be paid under this judgment but a landlord has the right by clause 9 of the agreement between the parties, to go upon the premises to effect works of reparation if he chooses to do so."


The judgment then proceeded to consider specific items. The Judge found that the rabbit-proof fencing to protect young hedges was unnecessary, but instead he allowed for 4000 242 spiral tree guards costing £1880 (inc.VAT), that figure being based on the Judge's own researches.


Apart from the rabbit-proof fencing the Judge accepted the evidence (provided by contractors' quotations) for planting and laying hedges, and for gates. He accepted £160 for weed destruction without, it seems, any specific evidence having been put forward on that point. He allowed £2000 for patching up the barn, based on a cost of £1875 for work previously done in 1991. That was despite the Judge having said, during the resumed hearing, that he was going to allow nothing for the barn. The total award of damages was just under £14,000 (including an amount for VAT) plus interest at 7 per cent, making £15,940.


Mr Silk appeals to this court on quantum only, but it will be apparent from what I have already said—and it is also apparent from the notice of appeal, which...

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