Lewis v Wolking Properties Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORR,LORD JUSTICE GEOFFREY LANE |
| Judgment Date | 01 June 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0601-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 June 1977 |
[1977] EWCA Civ J0601-4
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(On appeal from Order of His Honour Judge Ruttle-Westminster County Court)
(Revised)
Lord Justice Orr
and
Lord Justice Geoffrey Lane
In the Matter of the Landlord and Tenant Act 1954
And In the Matter of Garage No.1. 4/8 Haunch of Venison Yard, Brook Street, London, W.1:
Mr. MICHAEL RICH (instructed by Messrs. Underwood & Co.) appeared on behalf of the Appellants (Respondents).
Mr. NORMAN PRIMOST (instructed by Messrs. Miller Clayton & Co.) appeared on behalf of the Respondents (Applicants).
This is an appeal by the landlords (the title having been assigned since the trial and new landlords substituted as appellants) of premises known as Garage No. 1, Haunch of Venison Yard, Brook Street, London, against an order made by Judge Ruttle on the 2nd February of this year in the Westminster County Court, by which he dismissed an application by the landlords to strike out an originating application by the tenants for a new tenancy of those premises, and on the tenants' application to extend their time for service of the originating application he granted, an extension of 3 days from the 21st February, 1977.
The facts of the case are, briefly, these. On the 23rd August of last year the tenants made application for a new tenancy of the premises under Part II of the Landlord and Tenant Act, 1954, and that application was made in good time, the last date for making it being 3rd September, 1976. But the County Court Rules, by Order 40 Rule 8 sub-rule (1) and Order 8 Rule 35 require, service of such an application to be effected within a month. On that basis the last date for service was the 23rd September, 1976, but in fact service was not effected within that period and it appears from a letter from the Westminster County Court dated the 26th October, 1976, that this failure was due, in part at least, to the application having been attempted to be served by post at the appellants' registered office on the 25th August and the letter having been returned by the Post Office marked "Gone Away", the landlords having by then transferred their registered office to an address in Hounslow.
On the 9th September. 1976, the solicitors for the respondents wrote to the solicitors for the landlords informing them that they had been told by the County Court that the summons had not been served; and that letter ends with this paragraph: "We would be pleased, accordingly, if you would let us know the correct addressof Wolking Properties Ltd. so that the summons can be served". To that they received a reply dated the 17th September from the appellants. solicitors: "Thank you for your letter of the 9th September, the contents of which are noted. On the assumption that the summons was issued within the required time, from service of the section 25 notice, we will agree to accept service on behalf of our clients". It is unfortunate that in that letter the appellants' solicitors did not provide the answer for which the respondents had asked, namely, the correct address of the landlord company.
Before the judge, the tenants claimed that the court had jurisdiction to extend time for service, both under the County Court Rules and under the inherent jurisdiction, and in the further alternative they alleged waiver by the appellants of any objection they might have had to the form of service, but all three of those claims were challenged by the appellants. In his judgment the judge found that there was jurisdiction under the Rules; and the first issue in this appeal is whether he was right in so holding. The second and third issues, which only arise if the judge was wrong in holding that there was jurisdiction under the Rules, are whether he had inherent jurisdiction to make the orders he did and whether he was right in rejecting, as he did, the respondents' plea of waiver.
The County Court Rules directly relevant to the first issue are as follows: Order 40 Rule 8 (1) and (1A), and Order 8 Rule 35 (1), (2) and (4).
Order 40 Rule 8: "(1) An application for a new tenancy under section 24 of the Act of 1954 shall be made by originating application in Form 355. (1A) Order 8,Rule 35, shall apply in relation to an originating application under this Rule as it applies in relation to a default summons but with the substitution for the references to 12 months of references to one month".
Order 8 Rule 35: "(1) The time. within which a default summons may be served shall, unless extended under the next succeeding paragraph, be limited to a period of 12 months from the issue of the summons. (2) Where reasonable efforts have been made to serve the summons within the said period and service has not been effected, the registrar may, on application, order that the time be extended for a further period not exceeding 12 months or for successive periods not exceeding 12 months each: Provided that the time shall not be extended for any period unless the application is made within the currency of the last preceding period. (4) Where the summons has not been served within the time allowed for service by this Rule, the action shall be struck out".
Mr. Rich in this Court, as before the learned judge, placed much reliance on the very positive character of the words in sub-rule (4), but, as the learned judge pointed out, there are other Rules to which regard is to be had, in particular Order 37 Rule 4 and Order 13 Rule 5.
Order 37 Rule 4: "(1) Where there has been a failure to comply with any requirement of these Rules, the failure shall be treated as an irregularity and shall not nullify the proceedings, but the court may set aside the proceedings wholly or in part or exercise its powers under these Rules to allow such amendments, if any, and to give such directions, if any, as it thinks fit. (2) No application to set aside any proceedings for irregularity shall be granted unless made within a reasonable time, nor if the party applying has taken any step in the proceedings after knowledge of the irregularity. (3) Where any such application is made, the objections intended to be relied upon shall be stated in the notice. (4) The expression 'proceedings' in paragraph (1), and where it first occurs in paragraph (2), includes any step taken in the proceedings and any document, judgment or order therein".
Order 13 Rule 5: "(1) Subject to the provisions of these Rules, any of the times fixed by these Rules or by any judgment order or direction for doing any act may be enlarged or abridged by consent of all parties or by the court on the application of any party. (2) An order enlarging time may be made although the application therefor is not made until after the expiration of the time allowed or appointed".
On the basis of those provisions and on a consideration of the Rules generally, the judge came to the conclusion that there was power under the Rules to extend time for service of the tenants' application. On this appeal Mr. Rich has sought to persuade us that that conclusion was wrong. He argued that there are to be found in the Rules three different kinds of time provision, the first of them being where the Rule does not provide what is to happen if the time limit is extended (and he gave us as examples of that Order 8 Rule 4 and Order 9 Rule 4); the second, where there is such a provision but the consequences may, under the Rules, be avoided (and he gave as examples Order 7 Rule 9 and...
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...the judge had a discretion to grant an extension in all the circumstances of the case, relying on the decision of this court in Lewis v. Wolking Properties Ltd. (1978) 1 W.L.R. 403 and that this court could review the exercise of that discretion. He further submitted that the judge wrongly......
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...should be applied by analogy to Order 7, rule 20 of the County Court Rules. The court also considered Lewis v Wolking Properties LtdWLR ([1978] 1 WLR 403), Robt Baxendale Ltd v Davstone (Holdings) LtdWLR ([1982] 1 WLR 1385),Bernstein v JacksonWLR ([1982] 1 WLR 1082) and Leal v Dunlop Bio-Pr......
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