Hill v Harris
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DIPLOCK,LORD JUSTICE RUSSELL,LORD JUSTICE SELLERS |
| Judgment Date | 01 April 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J0401-1 |
| Court | Court of Appeal |
| Date | 01 April 1965 |
[1965] EWCA Civ J0401-1
Lord Justice Sellers
Lord Justice Diplock and
Lord Justice Russell
In The Supreme Court of Judicature
Court of Appeal
MR G. ELLENBOGEN (instructed by Messrs. D. Miles Griffiths, Piercy & Co.) appeared as Counsel on behalf of the Appellant (Plaintiff
MR F. MAURICE DRAKE (instructed by Messrs. C. Grobel, Son & Co.) appeared as Counsel on behalf of the Respondent (Defendant)
MR JUSTICE SELLERS: I will ask Lord Justice Diplock to deliver the first Judgment.
Mr Hill, the Appellant hare, who was Plaintiff in the Court below, seeks to recover against the Defendants, his lessors, damages for breach of what isdescribed as a "warranty". On the let September, 1959. he executed a lease for a term of 13 years of premises known as 406, Evelyn Street in Deptford. The lease was a sablease, as everyone knew, and it was contemplated by both parties, the sub-lessors and Mr Hill, the sub-lessee, that he would in fact carry on on the premises the business of confectioner and tobacconist. There was, however, no provision in the lease whereby the Defendant expressly covenanted that he should be able to do so. The relevant covenants, to which we have been referred are, first, a covenant by Mr Hill himself, the sub-lessee, in these terms: "Not to carry on or suffer to be carried on in or upon the demised premises the trade or business of a Licensed Victualler or Publican or Beer shop keeper or any dangerous noisy noisome or offensive trade or business whatsoever other than that of a Confectionery and Tobacoo retailer", and then it goes on to deal with not suffering or causing a nuisance. That covenant is, of course, merely a negative covenant defining certain trades — which do not include confectionery and tobacco retailer or a great many other trades — which he is not entitled to carry on. The other relevant covenant is a covenant by the sub-lessors for quiet enjoyment, which is in the following terms, so far as is relevant, namely: "The lessors covenant with the lessee as follows… that the lessee shall or lawfully may peaceably and quietly hold occupy and enjoy the demised premises in and during the said term hereby created without any let suit interruption or disturbance whatsoever from or by the lessors or any person or persons lawfully claiming or to claim through under or in trust for them") in other words, the ordinary covenant for quiet enjoyment.
What happened was that, after the Plaintiff had been carrying on his business of confectionery and tobacco retailer for some time, the head landlord exercised his power under thehead lease of the 17th March, 1959, under which the sub-lessors entered into a covenant "not without the previous consent in writing of the lessor to carry on or suffer to be carried on in or upon the ground floor of the demised premises or any part thereof any trade or business whatsoever other than that of boot and shoe makers and dealers or the upstairs rooms for any purpose other than of living accommodation for occupation by one family only". The head lessor refused to give consent under that Clause to the use of the premises as a confectionery and tobacco shop, and accordingly the sub-lessee, Mr Hill, was prevented from carrying on the business which he had contemplated carrying on when he took the lease. There is, as is evident from what I have said, no term in the lease which contains any warranty or covenant by the sub-lessors that he should be able to carry on that business, and the covenant for quiet enjoyment clearly excludes any interruption of his business by the head lessors, for they are not "persons lawfully claiming or to claim through under or in trust for" the sub-lessors.
One may ask then how it is that the Plaintiff puts his claim against the sub-lessors. I think I can deal very shortly with one way in which it has been put before this Court and before the learned Judge, though I find it difficult to discern this way of putting it in the pleading in this case. It has been submitted that, where a lease of property is entered into, and it is in the contemplation of both parties that it shall be used for a certain purpose, there is an implied contract or condition on the part of the landlord, implied by law, that the premises are fit for the purpose, that is to say, that they can lawfully be used for the purpose, and that there will be no let or hindrance to their being so used. That is a proposition in support of which no authority has been cited. Mr Justice Devlin (as he then was) in Elder v. Auerbach a case reported in 1950 1 King's Bench, 359) at page 374, said this: "The relevant principle of law was enunciated by Baron Parke in Hart v. Windsor, and quoted with approval by Lord Justice Sorutton in Bottom ley v. Bannister, and is as follows) 'There is no contract, still less a condition, implied by law on the demise of real property only, that it is fit for the purpose for which it is let'". Mr Justice Devlin goes on! "This principle has often been applied in cases where the premises are physically unfit for the purpose. I think it equally applicable where premises are, so to speak, legally unfit. It is the business of the tenant, if he does not protect himself by an express warranty, to satisfy himself that the premises are fit for the purpose for which he wants to use them, whether that fitness depends upon the state of their structure, the state of the law, or law, other relevant circumstances". Mr Ellenbogen has pointed out that that statement of the law by Mr Justice Devlin has not yet received approval from a higher Court. I think the sooner it does the better, and as far as I am concerned I am prepared to approve it here and now.
But the real way in which Mr Ellenbogen put his case was on a warranty, which, he says, arose in the following circumstances in which the lease was negotiated. In February, 1959, the sub-lessors put the property in the hands of some agents, Messrs. H. J. Furlong & Sons, and invited them to negotiate a sub-lease of the premises. Mr Dennis, who was a member of that firm of estate agents, got into touch with a number of potential sub-lessees of whom Mr Hill was one. In...
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