Granada Theatres Ltd v Freehold Investments (Leytonstone) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JENKINS,LORD JUSTICE ROMER,LORD JUSTICE ORMEROD |
| Judgment Date | 23 March 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0323-7 |
| Date | 23 March 1959 |
| Court | Court of Appeal |
[1959] EWCA Civ J0323-7
Lord Justice Jenkins
Lord Justice Romer and
Lord Justice Ormerod.
In The Supreme Court of Judicature
Court of Appeal
MR H. HEATHCOTE-WILLIAMS, Q.C. and MR JOHN VINELOTT (instructed by Messrs Harewood & Co.) appeared as Counsel for the Appellants.
MR R. E. MEGARRY, Q.C. and MR OLIVER LODGE (instructed by Messrs E.F. Turner & Sons) appeared as Counsel for the Respondents.
: This is ail appeal by the defendants, Freehold Divestment (Leytonstone) Limited. from a Judgment of Mr Justice Vaisey dated the 13th June, 1958, in an action brought against them by the plaintiffs, the Granada Theatres Limited., concerning the liability of the defendants under a landlord's repairing covenant contained in a lease dated 13th June, 1941, by the defendants' predecessors in title to the plaintiffs' predecessors in title, of the premises known as the Century (formerly the Academy) Cinema, 3500, High Road, Leytonstone. The lease was for a term of 21 years from 2nd June, 1941, at a rent of £750 per annum increasable as therein mentioned. The term was assigned to the plaintiffs on the 13th December, 1954. The landlord's repairing covenant is drawn by reference to a repairing covenant by the lessee, which is in these terms. It is No.3 in the fasciculus of lessee's covenants contained in Clause 2 of the lease: "The lessee for itself and its assigns and to the intent that the obligations may continue throughout the term hereby created covenants with the lessors as follows.…(3) To keep the demised premises and the sanitary and water apparatus and all additions and improvements thereto in good and substantial repair and condition and properly decorated and in a state in every respect fit for cinematograph entertainments but nothing in this clause contained shall render the lessee ££ for structural repairs of a substantial nature to the main walls roof foundations or main drains of the demised building". The landlord's repairing covenant is in these terms - it is No.2 in the fasciculus of landlord's covenants contained in Clause 3 of the lease: "(2) To (except so far as the lessee is liable under the lessee's covenants hereinbefore contained) repair maintain and keep the main structure walls roofs and drains of the demised premises in good structural repair and condition at all times during the said term".
The effect of this covenant read in conjunction with the lessees' repairing covenant appears to be that the defendants are liable under it for structural repairs of a substantial nature to the main walls, roof, foundations or main drains of the demised building; whereas the plaintiffs are liable under the lessees' repairing covenant for all repairs not falling within that description. This follows, I think, from the exclusion from the landlords' repairing covenant of repairs "for which the lessee is liable under the lessees' covenants hereinbefore contained", coupled with the obligation cast on the lessee by the lessees' repairing covenant to do all repairs with the exception of structural repairs of a substantial nature to the main walls, roof, etc.
The questions in the case are in substance (a) whether certain works of repair done or needing to be done (I) to the main roof (formerly slated) and smaller back roof (at all material times covered with asbestos sheeting) of the auditorium of the cinema, and (II) to the front elevation (consisting of a 9 in. brick wall rendered with cement) of the demised premises, or any and if so which of these works, are repair: of the description for which the defendants are liable upon the true construction of these ill-drawn covenants; and (b) if so, whether the plaintiffs have lost, or are precluded from asserting, their rights in respect thereof on one or other of the grounds relied on by the defendants, to which I will later refer.
To anticipate matters, it appears that after a protracted dispute, the plaintiffs themselves carried out the work on the auditorium roofs which they considered to be necessary in order to put the roofs in the state of repair demanded of the defendants under the landlords' repairing covenant. Having carried out this work, the plaintiffs began the present action in which they claimed (to put it shortly) (1) £961 as damages for the cost incurred by the plaintiffs in executing the roof repairs, and (2) a declaration that upon the true construction of the lease the repairs to the front elevation of the cinema were the liability of the defendants.
By the Order under appeal (again putting it shortly) learned Judge made declarations in favour of the plaintiffs to the effect that upon the true construction of the lease the repairs to the roof of the cinema and the repairs to the front elevation of the cinema required by items 84 and 85 of the schedule of dilapidations, referred to in Paragraph 13 of the Statement of Claim, and set out in the schedule to the Order, were the liability of the defendants, and ordered an inquiry what damages had been sustained by the plaintiffs by reason of their having carried out the repairs to the roof referred to in Paragraph 11 of the Statement of Claim. In reaching the conclusions to which the order gave effect, the learned Judge held that all the repairs in question were structural repairs of a substantial nature and, as such, within the scope of the landlords' repairing covenant. He also rejected an argument advanced on the defendants' side to the effect that even if the repairs in question were in cumulo structural repairs of a substantial nature, they were no more than the accumulated product of individual wants of repair, each of which considered separately ought to have been remedied by the plaintiffs under the lessees' repairing covenants, and that the defendants accordingly had a claim against the plaintiffs in respect of these individual breaches sufficient to wipe out the plaintiffs' claim against them under the landlords' repairing covenant. The learned Judge refrained from deciding whether this contention could be supported in principle, rejecting it on the ground that in the present case the plaintiffs only acquired the term on the 13th December, 1954, and served their schedule of dilapidations on the 31st January, 1955; the inference being that in his view there could not during that short period have been any material contribution by the plaintiffs to the accumulated disrepair. A further point taken on the defendants' side which loomed large in the argument before us, and which no doubt was ventilated before the learned Judge, and must inferentially be taken as having been rejected by him although he did not expressly deal with it, was to the effect that the plaintiffs had forfeited any claim they might otherwise have had in respect of the roof repairs because the defendants had at all material times been ready and willing to do the necessary repairs, but the plaintiffs had prevented the defendants from doing such repairs by refusing to allow the defendants access to the premises for that purpose, and ultimately doing the repairs themselves. There is one small question of fact which appears to have been misapprehended by the learned Judge. In his judgment he attributes the £961 wholly to the cost of repairing the main roof of the auditorium, whereas in fact it was made up of £807 for the main roof and £154 for the rear roof, both roofs, and not the main one only, having been repaired by the plaintiffs themselves before action brought.
I must now refer to the history of the dispute, and in view of the point taken on the defendants' side to the effect that the plaintiffs in any case disqualified themselves from relief in respect of the roof repairs by wrongfully preventing the defendants from doing those repairs and ultimately doing them themselves, it must, I fear, be referred to in some detail. It will be best appreciated through the correspondence, to which I will next turn.
On the 31st January, 1955, the plaintiffs (having acquired the term on the 15th December, 1954) to the defendants enclosing a schedule of "dilapidations and wants of repair". The covering letter included the following material paragraphs: "A schedule of dilapidations and wants of repair has been prepared relative to the structure of the building which, in accordance with Clause 3(2) of the lease dated the 12th June, 1941, is the responsibility of the freeholders. We enclose a copy of this schedule and should be glad to have your confirmation that this work can be carried out at the same time as the principal work and that you agree that the costs thereof will be your responsibility". The enclosed schedule included the following items: "Auditorium roof: Reinstate with new all missing or defective slates and refix all loosened slates to the slated roof of the front portion of the auditorium. Reinstate all missing ridges and refix where loosened and make good all defective flashings, and leave the whole of slated roof in secure and watertight condition". Then lower down under the general heading "Auditorium roof", there is: "Reinstate with new all cracked or defective asbestos roof sheeting to the rear half of auditorium roof and reinstate all cracked or defective ridge pieces and eaves filler pieces and make good all defective flashings and leave the whole of the asbestos roof in secure and watertight condition". Then later on in this schedule (at page 4 of the correspondence) there is this: "Front elevations and returns to same. Hack off the whole of the loose and defective cement rendering to the front elevation and returns to same. Cut out all defective or cracked brickwork and make good with new and reinstate cement rendering complete with all moulded work etc. as previously existing".
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