Dodds v Walker
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BRIDGE,LORD JUSTICE TEMPLEMAN |
| Judgment Date | 29 February 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0229-4 |
| Docket Number | 79 00194 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 February 1980 |
[1980] EWCA Civ J0229-4
In The Supreme Court of Judicature
Court of Appeal
On Appeal from Grrantham County Court
Lord Justice Stepheson
Lord Justice Bridge
and
Lord Justice Templeman
MR. M. THORPE (instructed by Messrs. Norton & Hamilton) appeared on behalf of the Appellant (Applicant).
MR. J. GUTHRIE (instructed by Messrs. Roythorne & Co.) appeared on behalf of the Respondent (Respondent).
(Reserved)
LORD JUSTICE STEPHENSON: I will ask Lord Justice Bridge to give the first judgment.
The appellant is the tenant of premises known as 34 George Street, Grantham, Lincolnshire. I shall refer to him in this judgment as the tenant. He holds a business tenancy of those premises to which Part II of the Landlord and Tenant Act 1954 applies.
In September 1973 the respondent, to whom I shall refer as the landlord, gave notice under section 25 of the Act to determine the tenancy on 31st March 1979. That notice was dated 29th September, but was served on 30th September.
On 29th November 1978 the tenant duly gave counter notice pursuant to section 29 subsection (2) of the Act, intimating that he would not be willing to give up possession of the premises on the expiry date mentioned in the landlord's notice.
On 31st January 1979 the tenant made his application pursuant to section 24 of the Act to the Grantham County Court for the grant of a new tenancy.
On 21st February 1979 the landlord applied to dismiss the tenant's application for a new tenancy on the ground that it had been made out of time under section 29 subsection (3). That application was heard by the learned registrar on 23rd March 1979. He acceded to it and dismissed the tenant's application as one which the court had no jurisdiction to entertain. The tenant appealed from the registrar's order to the judge. On 27th April His Honour Judge Whitehead heard that appeal and dismissed it. The tenant now appeals fromthe judge's order, to this court.
I turn at once to the relevant statutory provision, section 29 subsection (3) of the Landlord and Tenant Act 1954, which provides as follows, as far as relevant:
"No application under subsection (1) of section twenty-four of this Act shall be entertained unless it is made not less than two nor more than four months after the giving of the landlord's notice under section twenty-five of this Act …".
Reading that section, as we must, in the light of the Interpretation Act, the period of four months referred to is a period of four calendar months. Accordingly the question for decision is this; when a landlord's notice to determine a tenancy under section 25 of the Act is served on 30th September in any year, when does the four month period after the giving of that notice, within which the tenant is allowed to apply for a new tenancy, expire? The landlord contends and the registrar and the learned judge have found, that it expires on 30th January. The tenant contends that it expires on 31st January, the day when he made his application. It is perhaps not inappropriate, as my Lord observed in the course of the argument, that we should be called upon to decide such a point on 29th February in a leap year.
There is no direct authority on the point, so it falls to be decided, it seems to me, as one of principle on the proper application to the facts of this case of the provisions of section 29 subsection (3) as correctly construed.
In calculating the period of four months, to which the subsection refers, no difficulty whatever arises whenever the landlord's notice in any month is given on any day in themonth from the 1st to the 27th. It is quite clear on authority that in any such case the four-month period will then expire on the corresponding date in the fourth succeeding month to the date on which the landlord's notice was served. A calculation made on that basis I will refer to for convenience as a calculation applying the corresponding date principle.
A moment's reflection is sufficient to demonstrate that the corresponding date principle cannot be of universal application. That is most clearly demonstrated by the illustration of a landlord's notice under section 25 which is served in a non-leap year on either 29th, 30th or 31st October. In each of those cases the period of four months after the giving of the notice necessarily expires on 28th February because the month of February in a non-leap year has no 29th, 30th or 31st and to extend the period beyond the last day of February would be to extend it beyond the fourth and into the fifth month after the giving of the landlord's notice. So far what I have said is supported by authority and I need only refer to the case of Migotti v. Colvill reported in Volume IV, Common Pleas Division, page 233. That was a case where the question in issue was the question on what date a term of one month's imprisonment expired when sentence had been passed on 31st October. It was common ground in that case that the first day of the sentence of one calendar month was to be reckoned as the day on which sentence was passed and the prisoner was taken in custody from the court to the prison. The court held, contrary to the contention on behalf of the prisoner, that the period of one calendar month expiredon 30th November. I need only read a short passage from the judgment of Cotton, L. J. at page 238:
"Prisoners cannot always be imprisoned during one particular calendar month, in the sense of a month the name of which is to be found in the calendar. What then is the meaning of the term when the sentence begins otherwise than at the first day of a calendar month?"
(i. e. for the purpose of that case, namely, on the 31st day of October).
Returning to the quotation from Lord Justice Cotton, he continues:
"Although there are difficulties, I am of the opinion that the right rule is that which has been laid down by Denman, J." (who, I interpose, was the judge at first instance) "and the other members of this Court. The imprisonment ends at 12 o'clock on the day immediately preceding the day in the following month corresponding to the day on which the imprisonment began."
(Again, interposing my own observation there is what I have called the "corresponding date principle" being applied: but his Lordship continues:)
"If there are not enough days in the second month to satisfy this, rule the calculation is made in favour of the prisoner, and he will be liberated on the last day of the month."
So if a prisoner had been imprisoned on the 29th, 30th and 31st January for one calendar month, he would be released on 28th February. The corresponding date principle could not apply.
The question we have to consider is the converse of that case. The question we have to consider is what happens when notice is given on the last day of a short month, here the 30th September, and the period of four months after the giving of that notice has to be calculated. Does it take oneto the 30th day of the fourth succeeding month, or does it take one to the 31st? Exactly the same question would, of course, arise in relation to a notice served on 28th February. Would the period of four months expire on 28th June, or on the 30th?
The key to the solution of this problem, to my mind, lies in the principle for which there is abundant authority, that in calculating the period of four months after the giving of a notice under section 25 of the Act of 1954, for the purposes of section 29 subsection (3), one must disregard in the computation the day of service of the notice and commence to calculate the running of the four-month period from the day after the giving of the notice; in this case, therefore, 1st October. That principle, and its application to section 29 subsection (3) of the Act of 1954, is not in issue, but, if authority were required for it, it is sufficient to cite paragraph 168 of Volume 37 of the Third Edition of Halsbury's Laws, which is headed "Exclusion of first day", and reads:
"The general rule in cases in which a period is fixed within which a person must act or take the consequences is that the day of the act or event from which the period runs should not be counted against him."
We have been taken through a number of cases cited in the footnote to that proposition which clearly demonstrate that it is well...
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