Lokumal (K.) & Sons (London) Ltd v Lotte Shipping Company Pte. Ltd (August Leonhardt)

JurisdictionEngland & Wales
Judgment Date21 March 1985
Neutral Citation[1983] EWCA Civ J1108-3
Judgment citation (vLex)[1985] EWCA Civ J0321-6
Docket Number85/1040,83/0433
CourtCourt of Appeal (Civil Division)
Date21 March 1985
Ernest David Keen


Robert Graham Hilary Keen
David George Holland

[1983] EWCA Civ J1108-3


Lord Justice Dunn,

Lord Justice Oliver


Lord Justice Fox




COURT OF APPEAL (Civil Division)

(On appeal from His Honour Judge Smithies sitting at the Bournemouth County Court)

Royal Courts of Justice

Miss HAZEL WILLIAMSON (instructed by Messrs. Arnold Cooper & Tompkins, Chichester) appeared on behalf of the Appellants (Plaintiffs).

Mr. GEOFFREY JAQUES (instructed by Messrs. Burges Salmon & Co., Bristol) appeared on behalf of the Respondent (Defendant).


This is an appeal from an Order made by His Honour Judge Smithies sitting in the Bournemouth County Court on the 11th November 1982 whereby he dismissed the plaintiffs' claim for possession of an agricultural holding occupied by the defendant and known as Lynes Farm, Ringwood, Hampshire. The ground upon which the learned judge felt bound to dismiss the plaintiffs' claim was that the defendant was a protected agricultural tenant under the provisions of the Agricultural Holdings Act 1948 and that forms the first ground of the plaintiffs' appeal to this Court. There is a second and alternative ground upon which the plaintiffs claim that the learned judge's judgment ought to be reversed, namely, that even if, as a technical matter, the defendant qualifies as a person entitled to the protection of the Act, he is nevertheless estopped from asserting that his interest in the land was other than an interest which does not qualify for such protection. This latter contention necessitates a rather fuller recital of the background facts than might otherwise be necessary.


The plaintiffs are and were at all material times the freeholders of the land concerned—in fact one of the plaintiffs owns part of the land in severalty and they are joint owners of the balance, but it is unnecessary to differentiate between their separate interests. The land had previously belonged to their mother, Mrs. Phyllis Keen who, in 1966, had let it to a family friend, Mr. Jeffery, on a yearly tenancy from the 25th March 1966. The land was conveyed to the plaintiffs in April 1966 subject to that tenancy. At some time between 1966 and 1972 Mr. Jeffery sub-let the land to the defendant. In 1972 the plaintiffs were desirous of resuming possession of the land and served Mr. Jeffery with a notice to quit which was limited to expire on the 25th March 1974. Mr. Jeffery was willing to give up possession. No counter-notice claiming the benefit of the Agricultural Holdings Act 1948 was served. On the 28th July 1972 Mr. Jeffery served notice to quit on the defendant expiring on the 29th September 1973. It is common ground that the defendant was not within the protection of the Act and that as from the termination of Mr. Jeffery's tenancy in March 1974 he would have had no answer to a claim for possession at the suit of the plaintiffs.


In fact at this time everything was being dealt with in the most friendly and co-operative manner. The defendant was anxious to stay on on the land for the moment while he looked for another farm and the plaintiffs were anxious to accommodate him so far as they could. They were, however, quite adamant that they were not prepared to grant him any interest which would attract the protection of the Act and negotiations took place between them and Mr. Jeffery, who was a Chartered Surveyor, acting on behalf of the defendant, to find a way out of the difficulty. Originally the possibility of granting a short tenancy with the consent of the Secretary of State for Agriculture under the provisions of section 2 (1) of the Act was considered but this was abandoned in favour of the alternative suggestion of the grant of a tenancy for a term exceeding one year but less than two years, which the decision of this Court in Gladstone v. Bower [1960] 2 QB 384 had established as being an agricultural tenancy not protected by the Act. Correspondence ensued from which it is quite clear, as the learned judge found, first, that the plaintiffs' intention was so to deal with the land as not to attract the protection of the Act and, secondly, that the defendant and those advising him clearly understood that the plaintiffs would only grant him a tenancy if it could be done in such a way that the protection of the Act did not apply to it.


The negotiations in fact turned out to be protracted and the defendant meanwhile held over, but without payment of any rent, while they continued. Provisional terms for the grant of a tenancy for a period of 21 months from the 1st November 1974 were arrived at in November 1974 but it was not until March 1975 that a draft tenancy Agreement was submitted for approval and by June 1975 the plaintiffs were pressing for the defendant either to agree or to vacate. Further delay occurred, however, while a Schedule of Condition wa prepared and agreed and it was not in fact until the 2nd January 1976 that a tenancy Agreement was finally signed. Under that Agreement the defendant was granted a tenancy of the farm retrospectively from the 1st November 1974 until the 1st October 1976.


No question arose about the defendant's position under this Agreement but upon its expiry he still had not found anywhere to go and further negotiations took place for the grant of a further tenancy to be likewise for a period of more than one but less than two years. Again the preparation and approval of formal Agreements took some time and no new Agreement was executed until the 29th June 1977 when a tenancy was granted from the 1st October 1976 to the 1st November 1977. That tenancy likewise expired without the defendant's having found any alternative accommodation. In October 1977 the second plaintiff wrote proposing yet a further tenancy for 13 months—i.e. up to the 1st December 1978 but this seems not to have been pursued and the suggestion was not in fact taken up again until the Summer of 1979. On the 4th September of that year the second plaintiff wrote to the defendant in these terms:


"My brother Dr. E.B. Keen and I would be willing to let the above property to you on the same terms as those contained in two several tenancy Agreements dated the 29th June 1977, the first between my brother and myself of the one part (hereafter referred to as 'the first agreement') and the second between myself of the one part and yourself of the other part (hereafter referred to as 'the second agreement') except that

  • 1. The term of your tenancy of the land comprised in the first and second agreements shall be from the 1st September 1978 to 31st October 1979.

  • 2. The rent for the before-mentioned period in respect of the land comprised in the first agreement shall be £2,520.

  • 3. The rent for the before-mentioned period in respect of the land land comprised in the second agreement shall be £480.


If you agree to take the tenancies of the above property on the before-mentioned terms, perhaps you would sign the duplicate of this letter and return it to me, with a remittance for the rents of £3,000".


This formal letter was accompanied by a personal letter in which the second plaintiff said: "If your tenders for other farms are unsuccessful, I will ask Mr. Willis to negotiate with you on behalf of my brother and myself for one further term of a year and a month from 1st November next.


"I really do need possession of the Farm as I am seriously contemplating retiring from my own job and I shall be looking to the farm to provide me with an income".


The formal letter of agreement was in fact signed by the defendant and returned on the 19th October 1979, that is only a few days before the agreed term of the tenancy was due to expire.


Thereafter, in December 1979, the plaintiffs opened further negotiations for the "one further term" which had been referred to and it then transpired that the defendant was claiming a protected tenancy under section 2 (1) of the Act.


That is, of course, the key section and it provides, for relevant purposes, as follows: ".…where under an agreement made on or after the first day of March nineteen hundred and forty-eight, any land is let to a person for use as agricultural land for an interest less than a tenancy from year to year…. then, unless the letting…. was approved by the Minister before the agreement was entered into, the agreement shall take effect, with the necessary modifications, as if it were an agreement for the letting of the land for a tenancy from year to year".


The effect of that is that it then becomes subject to the restrictions on notices to quit contained in sections 23–25 of the Act (now sections 1–3 of the Agricultural Holdings (Notices to Quit) Act 1977)


Thus the way in which the Legislature has chosen to provide protection for agricultural tenancies has been to impose restrictions on notices to quit agricultural holdings and to put agricultural tenancies, whether for less than a year or for two years or more, on the same footing as tenancies from year to year which, of course, require to be determined by notice to quit. Interests for less than a year are, as already noted, equated with tenancies from year to year by section 2 (1) and tenancies for two years or more are, for relevant purposes, treated in the same way by section 3 (1). Parliament appears, however, to have overlooked the case of a tenancy for a fixed term of more than one but less than two years and such a term was held in Gladstone v. Bower not to be a protected tenancy. Although the provisions of sections 23–25 of the 1948 Act were re-enacted in 1977, no step was taken to bring such tenancies within the Act and it must therefore be assumed that...

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