Hodgson v Armstrong
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE RUSSELL |
| Judgment Date | 15 November 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J1115-2 |
| Court | Court of Appeal |
| Date | 15 November 1966 |
[1966] EWCA Civ J1115-2
Lord Justice Sellers
Lord. Justice Davies and
Lord Justice Russell
In The Supreme Court of Judicature
Court of Appeal
Royal Courts of Justice,
(Civil Division)
(From: His Honour Judge Ingress Bell - Preston County Court)
In the Matter of The Landlord and Tenant Act 1954:
Mr. L.J. PORTER (instructed Toy Messrs. Bower, Cotton & Bower, Agents for Messrs. Growling, Seddon, Taylor & Cooper, Preston) appeared on behalf of the Appellant (Applicant).
Mr. G. NEWMAN (instructed by Messrs. Geoffrey Coombs & Co., Agents for Messrs. G.W. Hodgson Co., Nottingham) appeared on behalf of the Respondents.
The Court gave leave to appeal in this case after the time for appeal had expired, as adequate grounds were shown to excuse the delay and as the case and the judgment of His Honour Judge Ingress Bell raised a question of undoubted importance and one which for practical reasons requires the utmost clarity.
The precise point is whether an application to the Court for a new lease purported to be made under Part II of the Landlord and Tenant Act, 1954, was made within the statutory time. The rateable value of the premises controls the Court to which the application has to be made, either the High Court or a County Court. The principle which is to govern the matter is of wide importance as the Court (here the County Court) which is to receive an application or a notice may on occasions be closed on the final day for the application or the notice, although less frequently closed for so many days preceding and including the final day as is the case here.
The facts are simple and undisputed. Mrs. Hodgson, the appellant, occupied the premises 61 Liverpool Road, Penwortham, Preston, comprising a dwelling-house and a shop, which she conducted, under a five-year lease dated the 24th June, 1958, under which she has continued in occupation up to the present time.
On the 19th December, 1964, she received a formal notice dated the I5th December, 1964, terminating her tenancy on the 24th June, 1965. This was a statutory notice given under section 25 of the Landlord and Tenant Act, 1954, and it contained these paragraphs: "2. you are required within two months after receiving this Notice to notify me in writing whether or not you will be willing to give up possession of the premises on that date. 3. I would not oppose an application to the court under Part II of the Act for the grant of a new tenancy". It would seem that the defendants had not been the landlords long enough to oppose renewal of the tenancy at all.
On the 12th February, 1965 (within the two months) theappellant wrote a letter to the defendants giving them notice that she was not willing to give up possession of the premises in accordance with the notice served upon her. The matter then, I understand, passed into the hands of solicitors then acting for her. The landlords can have been in no doubt as to the intention of Mrs. Hodgson to continue in the premises and of her right in the circumstances to have a new tenancy.
Section 24 of the Act enabled the appellant to apply to the Court for a new tenancy "subject to the provisions of section 29". Sub-section 3 of that section is as follows: "No Application under sub-section 1 of section 24 of this Act shall be entertained unless it is made not less than two and not more than four months after the giving of the landlord's notice under section 25 of this Act".
Four months after the giving of the landlords notice expired on the 19th April, 1965, which was in that year the Easter Monday Bank Holiday. The Preston County Court was closed that day and had been closed since the previous Thursday noon, the 15th April, as all County Courts were closed by authority from noon on Maundy Thursday until the following Tuesday morning the 20th April. Preston County Court re-opened at 10 a.m. that day.
The appellant's originating application for a new lease, Form 335, had been prepared, properly containing all the required particulars and dated the 15th April, 1965. On the afternoon of that day it was taken by or on behalf of the appellant's then solicitors to the Preston County Court, where it had to be delivered. When delivered the Court had to serve it upon the landlords but this could be done by the Court within a month of its receipt (Order 40 rules (l) and (la)).
On finding the County Court closed the solicitor took the originating application back to Garstang and posted it to the Preston County Court by ordinary post that afternoon. The next day was Good Friday, when, we understand, no postal deliveries are normally made and in the ordinary way the document should have been delivered by post on the morning of Saturday 17th April.
It was not so delivered because the Post Office, at the request of the Preston County Court, do not deliver to that Court on any Saturday but keep the mail normally until the following Monday morning. This is no doubt a prudent and sensible arrangement as the Court building is closed on Saturday and Sunday and payments of money are commonly made to a County Court through the post. As this particular weekend was extended over the Easter Bank Holiday Monday, the mail was not delivered until the morning of Tuesday 20th April, 1965. It was then that the appellant's originating application was seen by the County Court which had been closed and unavailable for four and a half days. It would have been available to receive documents by post if it had not been interfered with by the County Court itself in its directions to the local Post Office.
The appellant's application was accepted by the County Court and duly served upon the defendants, who put in an answer dated the 1st June, 1965. It alleged that the Court had no jurisdiction to entertain the application and relied on section 29 (3) of the Act. Alternatively the answer pleaded objections to the terms of the new tenancy set up by the applicant. The case was heard before Judge Bell on the 6th December, 1965, and he held that he had no jurisdiction to grant a new lease as the originating application had not been received by the Court on or before the 19th April, 1965.
In the particular circumstances of the present case the Court did not function at all on that day. No personal application could have been made to it and a written application could not have received any attention though it could and probably would have been delivered to the Court premises on or before that day if the Court itself had not arranged for the Post Office to delay all deliveries by them until the Court premises were open.
The principle to be determined here is the same whether the Court was not functioning for one day or for four and a half days as here. The learned judge had general but not directauthority to support his conclusion, hut with great respect so to hold seems to me to bring the law into disrepute and subject it to the ridicule which is often too readily accorded to it.
The main authorities in support of the judgment to which we were referred have been considered in the judgment to be delivered by Lord Justice Davies. I recognize the distinction of those who decided them but the authorities are not binding on us, they relate to circumstances different from the present case and, like the Lord Justice, I see no reason to follow them.
It is said that this is a requirement of a statute and that the Court cannot enlarge a time which a statute has specified. That, of course, must be accepted. The Courts have to apply a statute in a manner which the statute can be held to have contemplated. On the face of it this would involve equal conditions for all and an application of the statute's provisions which was not fortuitous and fluctuating. If out of 101 days the Court holds that one day does not count it leaves 100 days which do. In such circumstances the Court does not enlarge the 100 days, it defines them. This seems to me to be the correct approach and function of the Court which in no way would usurp the function of the Legislature.
The Act clearly gives the applicant four months and there is nothing to indicate that that period is to be in any way curtailed. The Act requires that the original application should be made to the Court and there would seem to be the underlying assumption that the Court is functioning and available to receive it within the working hours of that date, otherwise the full statutory period may be curtailed for some by the mere mischance of dates.
Further, the notification to the defendant is not regarded as a matter of urgency as the Court has time in which to serve, the application on the defendant, and in this case if the application had been handed in at the County Court at 11.55 a.m. on the 15th April it is unlikely that the defendants would have been served with it any sooner than they were in fact.
In my opinion the County Court officials were right in accepting the application and in sending it on to the landlords and it would be a hardship and an injustice to the plaintiff and her solicitors to hold otherwise. Mrs. Hodgson had an undoubted claim for a new lease; only the terms remain for determination by the Court, as the defendants well knew and recognized. If she has irrevocably lost this right by the mischance of the Easter Vacation falling so inconveniently it may be she would seek redress in a claim for damages for negligence against her then solicitors. But it might be -held that it would be harsh in circumstances of this particular character to find the solicitor in negligent breach of duty to her (especially having regard to the County Court Rule (Order 48 rule 10 (3)), in which case the plaintiff' by fortuitous circumstances completely outside her control...
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