Kammins Ballrooms Company Ltd v Zenith Investments (Torquay) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SACHS,LORD JUSTICE EDMUND DAVIES |
| Judgment Date | 30 July 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0730-1 |
| Date | 30 July 1969 |
| Court | Court of Appeal (Civil Division) |
[1969] EWCA Civ J0730-1
Lord Justice Sachs
Lord Justice Edmund Davies and
Lord Justice Willmer
In The Supreme Court of Judicature
Court of Appeal
MR. F.ASHE LINCOLN, Q.C., and MR. J.E.S. RICARDO, instructed by Messrs. Bridges, Sawtell & A.J. Adams, agents for Messrs. Langdon & Co. (Torquay), appeared for the Appellants (Applicants).
MR. M.J. ALBERY, Q.C., and MR. OLIVER R.W.W. LODGE, instructed by Messrs. Ward, Bowie & Co., agents for Messrs. Boyce, Hatton & Co. (Torquay), appeared for the Respondents (Respondents).
This is an appeal from a judgment of His Honour Judge Pratt given at Torquay County Court on 16th December, 1968, whereby he dismissed the tenant's application for a new lease sought pursuant to Part II of the Landlord and Tenant Act, 1954. The merits of the application were not considered, but the case was determined upon the County Court judge sustaining a preliminary objection taken by the landlords. Their objection was raised under section 29, sub-section (3) of the Act, which, so far as is material, reads: "No application under sub-section (1) of section 24 of this Act shall be entertained unless it is made not less than two nor more than four months after … the making of the tenant's request for a new tenancy". The County Court judge held that, the application having been lodged at the County Court less than two months after the tenant's request for a new tenancy, he could not deal with the matter, as the provisions of the above sub-section went to jurisdiction and were not procedural.
The chronological sequence of events prior to the hearing of the application was as follows. The tenants held a lease expiring on 25th December, 1968. In the months of March to July, 1968, correspondence passed between the landlords and the tenants, in the course of which it became clear that the landords were not prepared to grant a new lease, that the tenants wished to press for one, and that both sides wanted the matter dealt with as soon as possible. On 2nd August the tenants served a formal request for a new tenancy under the provisions of section 26 of the Act, specifying the grounds upon which they relied. That was the relevant request as far as section 29(3) was concerned.
On 15th August the landlords served a counter-notice under the provisions of section 26 to the effect that they would oppose the tenants' application on the grounds that they intended to occupy the holding for the purposes, orpartly for the purposes, of a business to be carried on there. This counter-notice was thus given well before the expiry of the time allowed for it by section 26(6).
On 4th September the tenants filed in the County Court an application for the grant of a new tenancy, some four weeks before the expiry of the two months referred to in section 29(3). On 19th September the landlords filed an answer stating their objections to granting a new lease. In that document they raised no point either as to the jurisdiction or as to the application being in advance of the permitted time.
On 30th September the landlords' solicitors wrote a letter which offered compensation on the lines provided by section 37 of the Act, adding; "We write to give you this information so as if possible to save the time of the court and you will, of course, note that this is an open letter".
2nd October was the first date on which the application could have been filed if the provisions of section 29(3) had been strictly complied with. On 3rd October the landlords' solicitors supplied the tenants' solicitors with particulars of their answer. On 9th October the landlords' solicitors wrote to those of the tenants agreeing that a special date should be fixed for the hearing and suggesting that it be fixed for some date after 18th November. (This court has been informed that the lateness of the date in the last-mentioned request was, at any rate in part, due to the landlords, solicitor having broken his leg).
On 17th October the landlords' solicitors wrote to the court suggesting that it would be of assistance to both sets of solicitors if the date be fixed after 1st December. On 6th November the return date originally fixed for the hearing of the application went by. On 2nd December the four months referred to in section 29(3) expired,so that no fresh application for a new tenancy could thereafter be made to the County Court.
On 5th December the landlords' solicitors wrote a letter to the tenant's solicitors in the following terms: "We are advised by counsel instructed on behalf of the respondents that, at the hearing of the application for a new tenancy, he intends to make a preliminary objection that your clients' application for a new tenancy is invalid. The grounds upon which this objection is based are that the application was made less than two months after the making of the tenants' request for a new tenancy and that, accordingly, by reason of the provisions of section 29(3) of the Landlord and Tenant Act, 1954, the application cannot be entertained by this court. In the circumstances, the offer to pay compensation, by virtue of our letter of September 30th, is now withdrawn".
It should at this stage be mentioned that, according to the information afforded to this court today, there was a period before 2nd December when the landlords' solicitors were aware of the existence of the point to which they referred in their 5th December letter. They, however, made no attempt to amend their answer or to raise the question with the tenants before the time expired within which fresh proceedings could be launched.
There followed the hearing of 9th December. It was in the above circumstances that the learned County Court judge rejected the submissions made on behalf of the tenants to the effect that the provisions of section 29(3) with regard to the time of filing an application were procedural and that, in the alternative, those provisions had the character of a statute of limitations which could have been but had not been raised at the appropriate moment, that is to say the filing of the answer. On the contrary, he held that the relevant words went to the jurisdiction of the court and accordingly could not be the subject either of an estoppelor of a waiver. He held, however, that if, contrary to the views he expressed, the relevant provisions were procedural, then the landlords had waived any irregularity by taking a number of steps in the proceedings.
Whether the provisions of a statute laying down the time within which proceedings may be instituted on the one hand limits the jurisdiction of the court or on the other hand is either procedural or has the character of a statute of limitations must depend on the contents of the statute as a whole. It is not a matter upon which one can argue at any great length. It is a subject of general approach rather than of meticulous examination of phrases.
We have been told that no other statute contains the precise words "no application shall be entertained unless made within" a specified period; but we know that the phrases of limitation used in statutes which do not limit jurisdiction vary. "All actions shall be commenced within" a specified period was the expression in the limitation Act of 1623 and the Civil Procedure Act of 1833. "No action shall lie or be instituted" was the expression used in the Public Authorities Protection Act, 1893. "No action shall be maintainable" was used in the Maritime Conventions Act, 1911, section 8, and "No action shall be brought" was used in the Limitation Act, 1939. For my part, with all respect to those who hold another view, I do not think that the difference in phraseology between the 1954 Act and the other Acts is a sufficiently cogent factor upon which to base a judgment; for instance the distinction between "no application shall be entertained" and "no action shall be maintainable" seems somewhat fine. In any event such differences seem to me to be by no means decisive. The question should rather be approached on the broad basis of looking at the contents of the relevant sections of Part II of the Act as a whole. When a statute relates to civil proceedings between twocitizens, there is, to my mind, a duty on the court to assume that in matters relating to the way in which and the time within which process can be originated the legislature does not intend to produce absurdities or injustices between the parties. Mr. Albery properly agreed that the relevant sub-section was in some ways intended to benefit the landlord and in some ways to benefit the tenant. He rightly conceded that there was nothing in it which enured to the benefit of the public outside the parties; and that is a factor which he readily agreed was at any rate relevant, in the absence of compelling words making the sub-section a matter of jurisdiction.
Normally benefits of that type are capable of being waived. No case, indeed, was brought to the attention of the court, despite the considerable industry of counsel, in which such a limitation of time was held to be incapable of being waived by the person for whose benefit that time limit was imposed.
As regards the effect of this particular sub-section, Mr. Albery naturally had to assert somewhat startling results would follow if indeed it limited jurisdiction. Had the appellants, solicitor discovered on 4th October that he had commenced proceedings too soon, had he then asked the defendants' solicitor whether the latter insisted on his abandoning the application and starting fresh proceedings, and had the latter sensibly and realistically said "Of course that is not necessary", the court would still have had no jurisdiction and would have been bound to dismiss the application even if both parties, as they would in honour be bound to do, asked him to continue...
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...75 That case was not referred to in Young's case, and neither Evans' case nor Young's case was referred to in Kammins Ballrooms Co. v. Zenith Investments (Torguay) Ltd., (1971) Appeal Cases 850, on which Mr. Reid for Mr. Lanjani relies for the proposition that knowledge of the legal right i......
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