Crown Estates Commissioners (Plaintiffs Respondents) Philip Browning Allingham (First Defendant Appellant) A. Williams Second (Defendant Appellant)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KARMINSKI,LORD JUSTICE BUCKLEY |
| Judgment Date | 07 December 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J1207-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 December 1972 |
[1972] EWCA Civ J1207-1
In The Supreme Court of Judicature
Court of Appeal
Appeal by defendants from order of Mr. Justice Talbot on 11th May 1972.
The Mastsr of The Rolls (Lord Denning),
Lord Justice Karminski and
Lord Justice Buckley.
Mr. PATRICK GARLAND, Q.C., and Mr. MICHAEL CONNELL (instructed by Messrs. Badham, Comins & Main, agents for Messrs. Hartley & Hines of Hitchin, Herts) appeared on behalf of the Appellant Defendants.
Mr. WILLIAM GLOVEN, Q.C. and Mr. GORDEN SLYNN (instructed by the Treasury Solicitor) appeared on behalf of the Respondent Plaintiffs.
THE MASTERS, OF THE ROLLS: Mr. Allingham is the tenant of Dog Kennel Farm, Lilley, Lawton, Bedfordshire It is a farm of 220 acres. His family have held it from the Crown Estates for many years. His grandfather had it until 1901. Then his father had it from 1901 to 1947. Then Mr. Allingham himself has had it from 1947 to the present day. The existing tenancy agreement is dated 10th November 1966. It says that from 29th September 1965 the tenant will pay £1256 a year by equal quarterly payments on the usual quarter days. But the Crown Estates did not insist on quarterly payments. For many years, on this farm and on others nearby, the Crown Estates demanded and received the rent half-yearly. The rent was paid for the half years ending 31st March and 31st October in every year. This practice was so well established that Mr. Allingham has a good case for saying that the Crown Estates had waived the terms of the tenancy agreement requiring quarterly payments, or at any rate were estopped from insisting on the rent being paid quarterly unless reasonable notice was given.
Notwithstanding that practice, and without previous notice, the Crown Estates on 29th January 1970 required payment of one quarter's rent due to 25th December 1968. The letter:
"We are forwarding herewith a formal application for the quarter's rent due to 25 December last amounting to £286.10.0".
Three weeks later the Crown Estates on 18th February 1970, served on Mr. Allingham this formal notice:
"The Crown Estates Commissioners, the Landlords, require you to pay within two months from the service of this notice, the rent due in respect of the above holding as set out below: Quarter Year's rent to 25th December 1969 £266.10.0."
Mr. Allingham did not pay the quarter's rent so demanded. No doubt he considered that it was not due till the half-year.
Two months later, on 22nd April 1970 the Crown Estates Commissioners served a notice on Mr. Allingham to quit and deliver up possession on 29th September 1971, adding these words:
"This notice is given in accordance with the undermentioned paragraph of section 24(2) of the Agricultural Holdings Act 1948 for the following reasons:-
Section 24(2)(d)
"At the date of giving of the Notice to quit you had failed to comply wish a notice in writing dated the 18th February 1970 served on you by the landlords' Agents requiring you within two months from the service of the Notice to pay any rent due in respect of the Agricultural Holding to which the Notice to Quit relates.
Dated this 22nd day of April 1970."
On getting that notice to quit, Mr. Allingham at once made an appointment to see his solicitor. On his advice he took steps to pay the half-year's rent for the whole of the half-year ended 31st March 1970. He paid £221 on 4th May 1970 and £352 on 11th May 1970. So within one month from receiving the notice to quit, he had paid all the outstanding rent.
Seeing that the whole of the rent had been paid, the solicitors for Mr. Allingham asked the Crown Estates to withdraw the notice to quit. They refused saying they could not withdraw a notice to quit. This may technically have been right, but they could waive it by impliedly granting a new tenancy. At any rate they refused.
On 17th November 1971 the Crown Estates issued a writ claiming possession and took out a summons for judgment under Order XIV. The Master and the Judge have ordered Mr. Allingham out. He appeals to this Court.
TBIABLE ISSUE.
It is conceded by the Crown Estates that Mr. Allingham has an arguable case for saying that no reach was due on 25th December 1969: and that therefore the notice to quit was bad, or at any rate, the reason given for it was bad.
But the Crown Estate a say that Mr. Allingham is not at liberty to put forward that arguable case. They say that, if he wished to put it forward, he ought, within a month of receiving the notice to quit, have given notice claiming arbitration: and that, as he did not do so, he is debarred from arguing is now.
If this case had to be considered at common law, the notice to quit would undoubtedly have been good. It was more than six months notice expiring on the year of the tenancy. But Parliament has given considerable security of tenure to farmers of agricultural holdings. So mush 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 out as long as he lives. The landlord is not entitled to give notice to quit except in defined circumstances. The circumstance here relied upon is that given in section 24 (2) (d) of the Agricultural Holdings Act 1948, which provides that a notice to quit may be given where
"at the date of the giving of the notice to quit...
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