Douglas Roy England v Muhith Choudhury &; Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Forbes |
| Judgment Date | 14 January 2007 |
| Neutral Citation | [2008] EWCA Civ 62 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2007/2018 |
| Date | 14 January 2007 |
[2008] EWCA Civ 62
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE MCKENNA)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Forbes
Case No: B2/2007/2018
Mr K Uddin (instructed by Messrs Res Ipsa Solicitors) appeared on behalf of the Applicant
Mr J DeWaal (instructed by Messrs Cocks Lloyd Solicitors) appeared on behalf of the Respondent.
This is a renewed application for permission to appeal the order made by HHJ McKenna on 14 August 2007, whereby he gave judgment for the claimant in respect of a claim for arrears of rent following the forfeiture of a lease of which the applicant and two others were tenants. The judge also made orders with regards to costs. The applicant applies also for a stay of execution in respect of the judge's order.
The case arose out of the circumstances relating to the lease of premises at 3-5 New Buildings, Hinckley, Leicestershire, from which an Indian restaurant known as Spice Bazaar operated. It appears that in 2002 an arrangement was entered into by this applicant with his co-defendants, under which this applicant purchased the interest of his co-defendants in the Spice Bazaar business. The lease contained terms which the judge accurately and fairly summarised at paragraphs 4 and 5 of his written judgment. The amount of rent claimed in the proceedings was £7241.41 plus interest. In the event, the judge found that arrears of rent was due, although not in the full amount originally claimed and gave judgment accordingly. The principal issue with which he was faced at the hearing was a claim by the applicant that the landlord had either agreed not to claim or had estopped himself from claiming the outstanding arrears of rent as a result of an exchange of correspondence between the claimant and the applicant with regard to the arrears of rent.
The relevant circumstances are set out in the written judgment. The critical correspondence took place in October 2005. On 9 October, the landlord received a letter from the applicant which enclosed four post-dated cheques totalling £4,406.25. The cheques were accompanied by a letter in which the applicant said this:
“Please kindly explain that trade has been so slow. I therefore write four cheques instead of one for the rent. Thank you.”
The judge found that the cheques submitted with that letter represented the rent due for the period 29 September to 24 December 2005, but excluded other elements of rent, namely, the service charge and management fee which had been set out in the application for payment that had been sent to the applicant. As a result, on the landlord's behalf, the managing agents replied to the applicant's letter by a letter dated 13 October 2005. In that letter the agents pointed out that the actual amount outstanding, as at the date of the letter, was £9,947.66 inclusive of the September quarter's rent. The letter then went on as follows:
“We can confirm therefore, that we would be prepared to accept post dated cheques provided they were at one week intervals for the reminder of the current quarter and that they total the sum of £9,947.77 which is the amount due, i.e. £1,105.31 per week from 21 October. If we receive the cheques by 21 October from you in this way, then we will accept them in good faith in payment of the sums which are due. If however, we do not receive the cheques as described above, then we will resort to the landlord's right to collect the rent as a single sum without further records to yourself.”
The applicant replied to that letter by a letter of his own, in which he said this:
“Dear Sir/Madam, Please kindly accept my apology for paying in two cheques. Thank you. Yours Sincerely.”
Enclosed with that letter were two cheques. One dated 21 October for the sum of £2,206.25 and the other for the sum of £2,200. Of those two cheques, the landlord banked the one for £2,206.25 on account of the outstanding arrears. The other cheque was apparently post dated. The applicant's position about this exchange of correspondence appears to be that, by accepting the cheque for £2,106.25 and paying it in, the landlord had entered into some form of agreement or had in some way estopped himself from claiming that the tenant was in breach of his obligations to pay rent and thus disabling himself from forfeiting the lease. However, the claimant did instruct his agents to secure the forfeiture of the lease. Bailiffs were instructed, and the re-entry was effected perfectly lawfully in accordance with the...
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