Horne & Meredith Properties v Cox and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Ryder,Sir Stanley Burnton |
| Judgment Date | 19 March 2014 |
| Neutral Citation | [2014] EWCA Civ 423 |
| Docket Number | Case No: B2/2013/0409 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 March 2014 |
[2014] EWCA Civ 423
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STOKE ON TRENT COUNTY COURT
(HIS HONOUR JUDGE MAIN QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lord Justice Ryder
Sir Stanley Burnton
Case No: B2/2013/0409
Mr J Randall QC (instructed by Wragge & Co) appeared on behalf of the Applicant
Mr A Farrell appeared on behalf of the Respondents
Mr Cox and Miss Billingsley are the tenants of 7A Whitburn Street, Bridgnorth in Shropshire. They occupy those premises for the purposes of their business, which is the retail sale of upmarket women's clothing. They first occupied the property under a lease granted in 1981 which has been subsequently renewed.
When the current lease came up for renewal under the Landlord and Tenant Act 1954 the landlord opposed the grant of a new lease on two grounds. The first was the redevelopment ground under section 30 (1) (f) of the Landlord and Tenant Act 1954. His Honour Judge Main QC found that that ground had not been established.
The second ground was the ground specified in section 30 (1) (c) of the Act, namely that:
"the tenant ought not to be granted a new tenancy in view of other substantial breaches by him of his obligations under the tenancy or for any other reason connected with the use or management of the holding."
The judge held that this ground had been established; and by his order of 21 December 2012 ordered that the tenancy be terminated on 1 May 2013.
With the permission of Floyd LJ, Mr Cox and Miss Billingsley appeal. Their appeal is limited to one narrow ground, namely that the matters on which the judge relied in coming to his conclusion are not reasons connected with the use or management of the holding.
It is sensible to begin with the holding. This is a defined term in the Landlord and Tenant Act 1954. The definition is in section 23 (3) of the Act. That reads:
"In the following provisions of this Part of this Act the expression 'the holding' in relation to a tenancy to which this Part of this Act applies means the property comprised in the tenancy, there being exclude any part thereof which is occupied neither by the tenant nor by a person employed by the tenant and so employed for the purposes of a business by reason of which the tenancy is one to which this Part of this Act applies."
Accordingly, in order to find out what the holding is one must first start with the property comprised in the tenancy. Having identified the property comprised in the tenancy, one must then subtract from it any property which is occupied neither by the tenant nor by an employee of his. The property comprised in the tenancy includes not only the corporeal hereditaments devised by the tenancy — ie the parcels — but also incorporeal hereditaments, such as rights of way; see Pointon York Group Ltd v Poulton [2006] EWCA Civ 1001; [2006] 3 EGLR 37 at 23. Normally incorporeal hereditaments are incapable of being occupied by anyone, so they do not fall to be subtracted from the property comprised in the tenancy in order to identify the holding.
In the present case the lease granted to Mr Cox and Miss Billingsley included not only the shop but also two rights of way and the right to park in six private car parking spaces. The route of the right of way was varied by a deed of variation made in 2008 but nothing material turns on that.
In my judgment, therefore, the holding as defined by section 23 (3) consists of the shop, the rights of way and the right to park.
At the heart of the judge's reasoning for refusing the grant of a new tenancy is the fact that for 16 years or more the parties have been in frequent litigation over alleged obstructions to the right of way. The proceedings have all been initiated by the tenants.
The judge set out the landlord's case about the litigation and its effect in paragraph 19 of his judgment. He said:
"The claimants maintain that they have been subjected to a remorseless campaign of the defendants' issuing legal proceedings against them, regardless of the legal advice they are likely to have received, chopping and changing their solicitors when one or other dislikes the legal advice received, seemingly oblivious to the substantial costs of their actions (both to themselves and the claimants). No fewer than nine different solicitors have been involved (four additional firms refused to accept the retainer) over some 16 years or so, since proceedings were first commenced in 1996, with the involvement of at least as many barristers, not to mention those barristers that refused to get involved with the first defendant. They have been subjected to no fewer than ten separate sets of proceedings, over very spurious or exaggerated legal infringements of the defendants' rights as tenants or as persons whose rights of way by the side of number 8 Whitburn Street and over the car park to the rear of the premises, have allegedly been infringed. The cost to the claimants as landlords had been absolutely colossal — their own legal costs' bills for just one set of consolidated proceedings in October 2007 being around £300,000. Such proceedings have included wholly baseless allegations of fraud, commenced by the first defendant in person (when he had solicitors acting for him), which were struck out by the court, only to be repeated; the issue of fresh proceedings (the two actions later consolidated) in 2008, which seek to revisit old issues which have been resolved in previous agreements resulting in the entering into of a Tomlin order and a later deed of variation; the issuing of numerous without notice applications, without a request for judicial hearing. All this, contend the claimants, resulting in the imposition of a limited civil restraint order (LCRO) imposed by District Judge Brown on 18 May 2011 against both defendants. If ever there was behaviour that engaged the provisions of section 30(1)(c), say the defendants, this is it. In the case of these defendants, the past is in every sense a good and reliable guide to likely future conduct."
In paragraph 23 of the judgment he set out the chronology of the litigation, which I need not repeat. Having done so he then reached a conclusion in paragraphs 34 and 35 as follows:
"34. I approach this issue by recognising first that both parties accept that the relationship between them has irretrievably broken down. Moreover, I am entirely satisfied that the approach of the first defendant to his own perceived sense of wrong and interference with his legitimate interests, as he sees it, will not change. Solicitors will continue to have to be involved at every step, in any dealings between the parties. — the ongoing litigation will be rekindled by the first defendants given half a chance (and the leave of District Judge Brown) and what has...
To continue reading
Request your trial
-
Harmohinder Singh Gill (as Trustee of the Gillcrest UK Pension Scheme) v Lees News Ltd
...ground (b), the evidence of nuisance would still have been relevant to the “ought not” question. 57 Horne & Meredith Properties v Cox [2014] EWCA Civ 423, [2014] 2 P & CR 18 was a case in which a new tenancy was opposed on ground (c) (“any other reason connected with the tenant's use and m......