John Berthelemy v Julius Neale
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE JENKINS,LORD JUSTICE HODSON |
| Judgment Date | 05 February 1952 |
| Judgment citation (vLex) | [1952] EWCA Civ J0205-2 |
| Court | Court of Appeal |
| Date | 05 February 1952 |
[1952] EWCA Civ J0205-2
In The Supreme Court of Judicature
Court of Appeal
The Master Of The Rolls (Sir Raymond Evershed)
Lord Justice Jenkins and
Lord Justice Hodson.
Mr MARK GORE (instructed by Messrs Rance & Co.) appeared on behalf of the Appellant.
Mr S.N. BERNSTEIN (instructed by Mr Stanley S. Levene) appeared on behalf of the Respondent.
We need not trouble you, Mr Bernstein.
I confess that I feel no kind of doubt about this case. In his application, the appellant claimed the benefit of the Leasehold Property (Temporary Provisions) Act, 1951, and that benefit he could claim only if he brought himself within the ambit of the Act. Section 10 subsection (2) provides that that section applies to atenancy the subject of which (a) consists of a shop; I need read no further for the moment. By section 20 of the Act "shop" is defined as meaning premises occupied wholly for business purposes, and so occupied wholly or mainly for the purposes of a retail trade or business. For the purpose in hand, it was necessary, therefore, for the applicant appellant to show that the premises of which he was the tenant were a shop as so defined. The learned County Court Judge thought they were they were not, and in my judgment he was quite right in that opinion.
The facts briefly are, as found by the learned Judge, that the applicant upon these premises carried on a number of activities, some I imagine of a not unskilful character. They included glasswork, for example resilvering, smoothing and scaling thermometer scales and cutting ladies handbag mirrors. The product of those activities, as the Judge found, was overwhelmingly sold by the applicant to trade customers, that is to say, were not sold retail. Indeed, it appears that the only articles sold by him retail were certain of the handbag mirrors, and that if regard is had to the turnover, then that retail business amounted to a very small percentage of the total business done. Without, therefore, closer examination of the actual language of the section, it would appear at first sight plain enough that the applicant's occupation of these premises was mainly for business other than retail.
The argument for the appellant is that, properly construed, the language that I have read "was occupied wholly or mainly for the purposes of a retail trade or business" must be interpreted by considering the amount of space which was occupied for retail trade; and it is said (and I will assume, though I am not entirely clear about it; that, regarded as Mr Gore says "spatially", every square foot or cubic foot of the premises can be said to be occupied forretail trade, since any activity done in that cubic foot may give in its result a...
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