Kenneth Peter Sowden v Stephen Charles Smyth-Tyrrell and Another
| Jurisdiction | England & Wales |
| Judge | HHJ Paul Matthews |
| Judgment Date | 06 October 2017 |
| Neutral Citation | [2017] EWHC 2477 (Ch) |
| Court | Chancery Division |
| Date | 06 October 2017 |
| Docket Number | Case No: D31BS349 |
[2017] EWHC 2477 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: D31BS349
William Batstone (instructed by Foot Anstey) for the Claimant
Guy Adams (instructed by Clarke Willmott) for the Defendants
Hearing dates: 18 August, 3 October 2017
Judgment Approved
Introduction
This is my judgment on applications made under the Arbitration Act 1996 on behalf of Mr Kenneth Sowden (whom I shall refer to as "the tenant") in relation to an arbitration under the Agricultural Holdings Act 1986 before Mr Michael Townsend, sitting as arbitrator, who made a final award dated 8 May 2017. This Award relates to 2 parcels of land at Bosawsack, near Constantine in Cornwall, held by the tenant under two separate written agricultural tenancy agreements, both dated 23 March 1978. The original landlord in relation to these tenancies was a Miss Coraleen Mary Moor Horsford, but the present landlords (and parties to the arbitration) are the defendants, Stephen Charles and Beaujolois Katherine Smith-Tyrrell. I shall refer to them as "the landlords."
The tenant is not only tenant of these two agricultural holdings, but is also the freehold owner of a house and buildings and some land, which is surrounded by one of the two parcels of land ("lot 1"). He purchased this land from Miss Horsford on 25 August 1978. The arbitration concerned a series of four notices, all dated 19 March 2013, served by the landlords on the tenant. Two of the notices (one for each parcel) were under Case D in part 1 of schedule 3 to the 1986 Act, and two of the notices (again, one for each parcel) were under Case E in the same part of the same schedule. The notices under Case D required work to be done by the tenant to remedy alleged breaches of terms of the tenancy agreements, whereas the notices under Case E were notices to quit on the basis that the breaches were irremediable.
Both sides to the arbitration were dissatisfied by the Award. In particular, the tenant was dissatisfied by a part of the award upholding the Case D notice requiring him to remove a concrete path on the land the subject of the tenancy running alongside his freehold house, together with a wall separating the path from the rest of the agricultural holding. The landlords were aggrieved by the failure of their claim to possession under the Case E Notices. On 12 May 2017 the tenant applied to the arbitrator under section 57(3) of the 1996 Act for the correction of the Award. I shall return to that.
On 5 June 2017 each side took steps in court litigation formally to challenge the Award. The tenant issued a claim form to challenge the Award under section 68 of the 1996 Act, on the grounds that there had been a serious irregularity, and under section 69 of that Act by way of an appeal on a point of law. The landlords, on the other hand, did not issue a claim form, but instead issued a simple application notice, in Form N244, seeking an extension of time under section 57(4) of the 1996 Act to apply to the arbitrator to exercise his powers under section 57(3) (either to correct or to clarify the Award), and also seeking an extension of time under section 70 (3) of the same Act for a challenge to the award under section 67 or 68, or to appeal the award under section 69. On the same day they also issued a claim form for judicial review of the arbitrator's award. On 5 July 2017, the landlords having realised that they had not actually issued proceedings under the 1996 Act, but merely given notice of an application to be made in (non-existent) proceedings, issued a claim form seeking the relief that they should have sought a month earlier. They therefore also issued an application (within that claim) for an extension of time in which to issue the claim form. For some reason, however, both claims have been allocated the same claim number by the court. If necessary, one of them will have to be allocated a different number.
The hearings before me
On 14 July 2017, there were listed before me the landlords' application under section 57(4), the landlords' application under section 70(3) (and the application for an extension of time in which to issue the claim form), and the tenant's applications under section 68 and 69 respectively. The time estimate was woefully inadequate, and in the event I was able to deal only with the landlords' application under section 70(3). I made no order on the application under section 57(4), as it was no longer pursued, and I dismissed the application under section 70 (3), for reasons given in an extempore judgment. I directed that the other two applications should be adjourned to 18 August 2017, allowing two hours. I should say that there was an argument between counsel when it came to drafting a minute of order subsequently, because they could not agree on what I had ordered, and I had to deal with the dispute on paper.
In relation to my order dismissing the application under section 70 (3), the landlords have filed an appellants' notice, seeking permission to appeal to the Court of Appeal. I understand that that application has not yet been considered, although I have approved the transcript of my extempore judgment. I add that, in relation to the landlords' application for judicial review, HHJ Jarman QC sitting in Cardiff refused permission to apply on the papers on 3 August 2017. I understand that the landlords have sought to renew that application at an oral hearing, which is fixed for 17 October 2017 before HHJ Cotter QC, sitting here in Bristol.
On 15 August 2017, the arbitrator wrote to the parties, responding to the tenant's application of 12 May 2017. He said this:
"In his application dated 12 May 2017 the tenant has invited me to admit an irregularity in the conduct of the proceedings or in the award, pursuant to s.68(2)(i) of the Arbitration Act 1996. The alleged irregularity which I am invited to admit is that at paragraphs 9.18 to 9.21 of my award dated 8 May 2017 I treated the Lot 1 Case D notice to remedy as if it alleged that the construction of the concrete path and wall were a breach of clause (26) of the relevant tenancy agreement, when in fact that notice only alleged that it was a breach of clause (27), and I have found that there was no breach of clause (27). I invited the landlords' submissions in response, which were made in a letter from Clarke Willmott dated 3 August 2017. I have considered those submissions, but have concluded that there was an irregularity in the conduct of the proceedings and/or in the award, because the tenant is correct that the Lot 1 Case D notice to remedy only relied on clause (27), and not also on clause (26). I have already concluded that I cannot correct this irregularity under s. 57 (or s. 47), and I now admit this irregularity for the purpose of s.68(2)(i)…"
The reference to the arbitrator's having "already concluded that I cannot correct this irregularity under s. 57 (or s. 47)" is a reference to the arbitrator's earlier letter of 19 July 2017, where he says
"Furthermore, I do not believe that I can use either my Section 57 or my Section 47 powers to produce an additional Award which would contradict any part of the existing Award".
At the adjourned hearing on 18 August 2017, before the tenant was able substantively to make his applications, the landlords applied for a stay of those applications pending the decisions in the judicial review and in the appeal to the Court of Appeal. After hearing the parties, I gave a further extempore judgment, dismissing the application for a stay. That took up about half the two hours available. The remainder of the hearing was occupied by submissions from both sides on the tenant's application under section 68. Those submissions not being completed by the time the court rose, the matter was adjourned over again, to 3 October 2017, the earliest date on which both counsel and I were all free at the same time. I invited counsel for the landlords to prepare a note of the arguments made by him which I could read as part of my preparation for the resumed hearing. He was kind enough to do so. At the resumed hearing on 3 October 2017, I heard further from both counsel, and completed hearing the submissions on the tenant's applications.
Other considerations
Before I turn to the substance of the applications, I wish to record that I consider the present situation unacceptable. The arbitration commenced in May 2013 has taken four years to reach a final award. Thereafter the parties have chosen to make a series of applications to court under the 1996 Act, at least one appeal to the Court of Appeal, and an application for judicial review. I was also told that, as at 4 July 2017, the legal costs of both parties in total exceeded £500,000 plus VAT. They must now be considerably higher. At each of the three half-day hearings I have held there have been two counsel and four solicitors. Arbitration is supposed to be a relatively speedy (I will not say cheaper) way of reaching a final resolution of a dispute. The policy underlying arbitration is undermined if the parties try to relitigate what has been decided. The dispute in this case is not only not yet finally concluded, but has also led to legal costs which are wholly disproportionate. I was told that the cost of removing the wall and path to which the tenant so strenuously objects would cost about £9,000, though I accept that the cost may not be the only reason for objecting.
I accept that I have seen no more than a small part of the case, and I assume that the parties on each side have been fully appraised of...
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