Gerald Rose and Another (Plaintiffs Appellants) v Louis Adrian Gossman (Defendant Respondent)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DANCKWERTS |
| Judgment Date | 12 December 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J1212-1 |
| Court | Court of Appeal |
| Date | 12 December 1966 |
[1966] EWCA Civ J1212-1
In The Supreme Court of Judicature
Court of Appeal
Civil Division
From Mr. Justice Waller
The Master of the Rolls
(Lord Denning)
and
Lord Justice Danckwerts
(carrying on business as G. & B. Rose, a firm)
MR J. SAMUELS (instructed by Messrs A. E. Samuels & Co.) appeared as Counsel for the Appellants.
MR T. BINGHAM (instructed by Messrs L. M. Doffman & Co.) appeared as Counsel for the Respondent
The plaintiff is the lesses of a house, No. 30 Poland Street. He has brought an action to damages against the landlord. The statement of claim refers to the lessee's covenant: "Not to assign sublet of part with the possession of the demised premises or any part thereof without the consent in writing of the lessor and superior lessor such consent not to be unreasonably withheld". The statement of claim goes on to say: "The defendant in the premises agreed that he would not unreasonably withhold his consent to a subletting of all or part of the said premises to a respectable and responsible subtenant. Yet in breach of contract the defendant has by letter from his solicitors and duly authorised agents unreasonably refused permission to sublet the second and third floors of the said premises to Murray R. Pevan & Co. (a firm) and has refused permission to sublet any part of the said premises and the plaintiffs have by the said breach of contract suffered damage". Then there are particulars of special damage: "Loss of profit rental in respect of the sub-letting of the said premises from the 28th February, 1966", and so on, "which said loss is continuing". The plaintiff went on to allege failure to repair the roof. He asked for a declaration that the defendant has unreasonably refused his consent, and damages.
After that pleading was delivered, the defendants delivered a defence. Particulars were given. The pleadings were closed. The case was ready for trial. Then the defendant applied to the Master to strike out the paragraph in the statement of claim in so far as it claimed damages for not giving consent to an assignment. The Master refused to strike it out and ordered the case to come on speedily. If the matter had been left there, the case would have been tried and finish-ed before now. The defendant appealed to the Judge in chambers, Mr Justice Waller, who held that no action lay far damages forrefusal to give consent to an assignment. He held that the claim for damages wag vexatious and would prejudice the fair trial of the action. He ordered it to be struck out. The plaintiff applies for leave to appeal. We have given it and heard the appeal.
This is not by any means an easy point. If I were left to construe this document without the aid of previous authority. I confess I would be inclined to say that the landlord promised not unreasonably to withhold his consent. But, as against this view, there is a line of authority going back to Treloar v. Bigge, (1874) Law Reports, 9 Exchequer at page 151, including some observations by Lord Justice Romer in F. W. Woolworth & Co. v. Lambert, 1937, 1 Chancery, page 53, and finally the decision of Mr Justice Salmon in Randall v. Roberts & Stacev Limited., 1960 Estates Gazette. These show that it has been accepted for nearly a hundred years now that with a lessee's covenant in this form, the words such consent not to be unreasonably withheld", are only a qualification on the...
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