Kenilworth Industrial Sites Ltd v E. C. Little & Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD,LORD JUSTICE LAWTON |
| Judgment Date | 23 October 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J1023-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 October 1974 |
[1974] EWCA Civ J1023-3
In The Supreme Court of Judicature
The Court Of Appeal
(CIVIL DIVISTON)
(Revised)
Lord Justice Megaw
Lord Justice Lawton and
Lord Justice Ormrod
(From Mr Justice Megarry)
In the Matter of a Lease dated 19th January 1968 and made between Kenilworth Industrial Sites Ltd. of the one part and E. C. Little & Co. Ltd. of the other part
Mr, EDWIN PRINCE (instructed by Messrs, Martin & Nicholson, Agents for Messrs. Pitt & Derbyshire, Sutton Goldfield, Warwick's.) appeared on behalf of the Appellant (Defendants)
Mr C. P. H. RIMER (instructed by Messrs. White & Leonard) appeared on behalf of the Respondents (Plaintiffs).
(without calling upon Counsel for the Respondents) LORD JUSTICE MEGAW: This is an appeal from the judgment of Mr. Justice Megarry delivered on the 21st January of this year. The matter arises out of an originating summons taken out by the plaintiffs, Kenilworth Industrial Sites Ltd, (whom I shall call the land lards") for a declaration affecting the proper amount of rent payable under a lease existing between the plaintiffs and the defendants, E. C. Little & Co, Ltd., whom I shall call "the tenants",
The facts of the matter are short and simple. There was a C lease dated 19th January, 1968, between the landlords and the tenants. The lease concerned a property in Farmer Ward Road, Kenilworth, in the County of Warwick, containing factory premises. By clause 1 of the lease it was provided that in consideration of the rent thereinafter reserved the landlords demised unto the tenants the premises set out in the schedule fr the term of 21 years from the 19th January, 1968, the tenants paying therefore yearly until the 18th January, 1973, the rent of £2, 980, and thereafter "a rent to be agreed as hereinafter mentioned in clause 5 hereof-
Clause 5 provides as follows: "Not more than twelve months nor less than six months before the expiration of the fifth tenth and fifteenth years of the term the Landlord shall serve upon the Tenant a notice to agree the rent of the said property for the ensuing five years and thereupon the parties hereto shall agree a new rent as aforesaid and failing agreement such rent shall be determined by a, single arbitrator of be appointed by the President of the Royal Institute of Chartered Surveyors whose decision shall be binding and final on the parties hereto Provided Always that such new rent shall not be lower than the rent payable in respect of the premises H for the last year of the term before such determination of the new rent And Provided Always that any failure to give or receive suchnotice shall not render void the right of the Landlord hereunder to require the agreement or determination as aforesaid of a new rent",
It would seem that by inadvertence the landlords failed to give notice, as contemplated by the opening words of clause 5 within the period provided by those opening words. They ought to have given to the tenants such notice to agree the rent for the ensuing five years not later than six months "before the expiration of the fifth year of the term. The expiration of the fifth year of the term was at 18th January, 1973: the notice therefore ought to have "been given before the 18th July, 1972.
In fact no notice was given purporting to be under clause 5 until the...
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