Elsden v Pick
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUCKLEY,LORD JUSTICE SHAW |
| Judgment Date | 28 March 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0328-5 |
| Docket Number | 1977 E No. 2286 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 March 1980 |
[1980] EWCA Civ J0328-5
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
On Appeal From the High Court of Justice Chancery Division
(Mr. Robert Wright. Q. C. Sitting as a Deputy High Court Judge)
Lord Justice Buckley
Lord Justice Shaw
and
Lord Justice Brightman
MR. MAURICE PRICE Q. C. and MR. H. M. HARROD (instructed by Messrs. Dawson & Co., Solicitors, London WC2A 3RZ) appeared on behalf of the Plaintiffs (Appellants).
MR. JONATHAN PARKER Q. C. (instructed by Messrs. Roythorne & Co., solicitors, Spalding, Lincolnshire) appeared on behalf of the Defendant (Respondent).
I have asked Lord Justice Shaw to deliver the first judgment in this case.
This is an appeal by the plaintiffs in the action from a judgment of Mr. Robert Wright Q. C., sitting as a deputy High Court Judge, given on 26th February 1979 whereby he refused their claim for a declaration that they were entitled to possession of Woodside Farm, Newton, Lincolnshire as on 6th April 1978.
The plaintiffs were at all material times the trustees of a settlement which included the Welby Estate. The principal beneficiary under the settlement is Sir Bruno Welby, Bart. He was concerned with the management of the estate, of which a Mr. Cawthra was the land agent.
Included in the estate were a number of farms some of which were let to tenant farmers. Two, which were known respectively as Woodside Farm and Welby Warren Farm, were so let to the defendant, Mr. Pick, who by 1977 bad occupied them for many years. For reasons which are not relevant to the present appeal, the Welby Estate had at some time towards the end of the 1960's adopted the policy of not reletting farms on the estate when they fell vacant. Sir Bruno had formed a family company called D. & S. Farms Limited; it took over the tenancies of such farms and farmed them in partnership with a Mr. Giles Halfhead under the partnership title Sapperton Farming Company.
At the beginning of 1977 Mr. Pick, who had until then farmed Welby Warren Farm and Woodside Farm with reasonable success, found himself surrounded by misfortune both matrimonial and financial. His wife was in the process of divorcing him. He was confronted by burdensome obligations and liabilities. Hewas in a state of great mental stress and consulted his solicitor about his various troubles. On 1st April 1977 solicitor wrote advising him that from what he had been told there was a real possibility that Mr. Pick might have to cease business. Mr. Pick himself forsaw that he might find himself so destitute of resources that he would not be able to pay the rent of his farm, or at any rate the rents of both of them. In that situation he did what an honourable man would do. On 4th April, which was a Monday, he went to see Mr. Cawthra, who acted for the landlord trustees and told him what his position was. Their respective versions of what took place as recounted in their evidence before the learned deputy judge did not altogether tally. The judge's assessment of them as witnesses was that each was honestly seeking to recall what was arranged between them at that meeting but that Mr. Cawthra's recollection was the more reliable. This assessment is not challenged. According to Mr. Cawthra he was shown the letter from Mr. Pick's solicitor. A half year's rent in respect of each of the two farms held by Mr. Pick was to fall due on 14th April. He was concerned as to whether he should give notice to terminate one or both tenancies. The requisite notice was one year's notice in writing, expiring on 6th April in any year. If, therefore, Mr. Pick wished to bring either tenancy to an end by notice he would have to give that notice before 6th April 1977 so as to expire on 6th April 1978.
Mr. Cawthra was not then anxious to recover possession of the farms held by Mr. Pick, who had been over many years a good tenant as well as a good farmer. He suggested that Mr. Pick might bide his time at least for a few days before coming to afinal decision as to relinquishing either or both of his tenancies. In pursuance of this suggestion he proposed that Mr. Pick should make out notices in respect of each farm, dated 4th April 1977 to expire on 5th April 1978. This latter date was erroneous as it should have been 6th April, but this slip appears to have passed unnoticed even at the trial and has not been the foundation of any of the many submissions addressed to this court, Mr. Cawthra's suggestion was that if by the end of the week (that is by Saturday 9th April 1977) Mr. Pick had resolved to give notice to determine one or both of his tenancies he might then give the notice antedated as proposed and it would be accepted. Mr. Cawthra, when cross-examined at the trial, said he was not absolutely certain whether or not late service would invalidate the notice. He said "I thought if we agreed delayed service it would be valid". According to the learned deputy judge's findings, Mr. Pick accepted Mr. Cawthra's proposals and went away to consider them in relation to his own financial circumstances and prospects.
It seems also that Mr. Cawthra promised that if later on Mr. Pick's position improved and he wished after all to continue ad before, then Mr. Cawthra would recommend to the landlords that Mr. Pick be allowed to retract his notice.
On Thursday 7th April, Mr. Pick returned to Mr. Cawthra's office. He took with him two letters. Each bore the date stamp "4th April 1977".
The first letter read: "Dear Mr. Cawthra, Following our conversation this morning, after giving more thought to it, and talking to father about it, I enclose a form of words which I hope you will accept as notice on the Newton Farm. The WelbyFarm, I think, I should not give up unless I have to. I need a little more time to work out the implications on that one. Many thanks for your sympathy and understanding. Yours sincerely, John Pick".
The second document was a notice in respect of Woodside Farm; the body of it was in these terms: "To the Trustees of the Newton Settlement, the Estate Office, Denton. I, John Shelbourn Pick, tenant of the farm known as Woodside Farm, situate at Newton, near Sleaford in the County of Lincolnshire hereby give you notice of my intention to terminate my tenancy of the above holding on April 5th 1978". Underneath is written: "Dated April 4th 1977. Signed J.S. Pick, Woodside Farm, Newton, Sleaford".
Mr. Cawthra enquired whether that notice represented Mr. Pick's final decision. Mr. Pick said it did. He asked for some grace in regard to the payment of rent due for Woodside Farm on 12th April, and was accorded it. In the event the rent for each of the farms was duly paid by Mr. Pick. According to his version of the arrangement between him and Mr. Cawthra the notice to quit should then have been torn up. However this assertion was rejected by the deputy judge and it is unnecessary to consider it further. However, when early in the following August he got a letter from Mr. Cawthra the contents of which indicated that his tenancy was regarded as coming to an end, he wrote a reproachful letter. It was dated 12th August 1977 and read thus: "Dear Mr. Cawthra, I am very distressed by your letter received this morning. I cannot believe that you would do this, after 40 years here as loyal tenants, because of a hasty, unnecessary act done without any advice. I was very close to a nervous breakdown at the time, a time of extreme stress the reasons for which Idiscussed with you, and I must appeal to you not to try to hold me to the consequences of such an irrational action. Perhaps we could discuss the matter. Incidentally, I trust that this will now be treated reasonably confidentially"- and he goes on to say why.
It is evident from the tone and tenor of this missive that Mr. Pick believed that he had given a notice which would be effective to determine his tenancy of Woodside Farm if it was to be taken at its face value. Mr. Cawthra's response was that matters had progressed too far to allow the notice to quit to be retracted.
Thereafter Mr. Pick, having procured a copy of that notice, consulted his solicitors. He has since maintained that the purported notice was ineffective and did not determine his tenancy. Accordingly he has asserted a right to remain in possession. Hence the claim for a declaration. Mr. Pick's basic contention has been that the purported notice to quit Woodside Farm was not an effective notice because it was not in conformity with the requirements of the tenancy agreement and contravened section 23(1) of the Agricultural Holdings Act 1948, which I now read: "A notice to quit an agricultural holding or part of an agricultural holding shall (notwithstanding any provision to the contrary in the contract of tenancy of the holding) be invalid if it purports to terminate the tenancy before the expiration of twelve months from the end of the then current year of tenancy". This is the root of the controversy which was ventilated in the court below. The learned deputy judge came to the conclusion that the effect of that statutory provision was to vitiate a notice which did not conform to the requirement of being a year'snotice expiring on 5th April (sic). The judge regarded the provision as mandatory and as permitting of no contractual relaxation in any circumstances. He dismissed the plaintiff's contention that the arrangement or agreement made between Mr. Cawthra and Mr. Pick served to validate the notice as and when served in these terms: "Finally, as a matter of legal analysis, whereas in this case the tenancy agreement provides for twelve months' notice, I find difficulty in seeing how an arrangement to accept short notice can be treated otherwise...
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