London County Council v Farren
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MORRIS,LORD JUSTICE ROMER,LORD JUSTICE SINGLETON |
| Judgment Date | 25 July 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J0725-4 |
| Court | Court of Appeal |
| Date | 25 July 1956 |
[1956] EWCA Civ J0725-4
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Singleton
Lord Justice Morris
Lord Justice Romer
(instructed by Mr. J. G. Barr, to the London county council,) appeared as counsel for the London County Council.
(instructed by Messrs. Franks, Charlesly & 21 appeared as counsel for Mr.
LORD JUSTICE SINGLETON, This case arises out of an application by the London County Council for the possession of certain premises in Gosset Street and Turin Street, Bethnal Green, of which premises the London County Council are owners and are the landlords for the purposes of the Landlord and Tenant Act 1954. They applied to the magistrate, Mr. Leslie Marks, for an order for possession. The application failed. They asked for a case to be staged by the learned Magistrate. A case was stated. The Divisional Court upheld the determination of the Magistrate; and the London County Council appeals to this Court against the judgment of the Divisional Court.
The Case Stated is very short. It is desirable that I should read it so that it may "be seen precisely what the question before the Magistrate was. In paragraph 1 of the Case it is stated that on the 11th November 1955 application was made, pursuant to the Small Tenements Recovery Act 1938. by Mary Winifred westgate acting for the London County Council for a warrant to recover possession of the premises which I have mentioned already.
In paragraph 2 the Magistrate said. "I heard the said Complaint on the 11th day of November, 1955, and found the following facts; (a) The above-named tenement was let to the Respondent by a Memorandum of Agreement dated 4th September 1953 and made between the London County Council by Cyril Herbert Walker their Director of Housing and Valuer and Agent of the one part and the Respondent of the other part at a rent of £36 per month payable monthly in advance". Thus the rent of the premises, which were used for storage purposes, was something over £40C a year, "(b) The Tenancy so treated commenced on 1st August 1953 and was to continue until determined as provided by the said Memorandum. Clause 6 of the said Memorandum is as follows; 'The Tenancy may be determined by one month's notice to expire at any time. Ifdetermined by the Council it shall be by a written notice signed by the Director of Housing and Valuer to the Council and served on the Tenant or left for the Tenant upon the premises or if the same are unoccupied affixed to the premises one month at least prior to the day of determination. If determined by the Tenant it shall be by a Notice in writing signed by the Tenant and served upon the Director of Housing and Valuer or one of his Assistants at the offices of the Council one month at least prior to the day of determination. The Notice in either case may instead of being served be sent through the post by registered letter addressed to the Tenant at his last known address or to the Director of Housing and Valuer at the offices of the Council as the case may be', (c) By a notice dated 2nd February 1955 and served upon the Respondent and expressed to be given under the provisions of Section 25 of the Landlord and Tenant Act 1954 the London County Council purported to terminate the said Tenancy on 5th August 1955. The said Notice was given by and signed by Joseph James Toole, Valuer and Agent to the London County Council. (d) In spite of the said Notice, the Respondent remained and remains in possession of the above named Tenement. (e) The London County Council require possession of the above named Tenement for redevelopment of a housing estate, pursuant to Part V of the Housing Act 1936. (f) At the time of the grant of the said Tenancy; the Housing and the Valuer's Departments of the London County Council were combined in one department under the. Director of Housing and Valuer to the Council. Sometime between the date of the said grant end the service of the said Notice the London County Council resolved to split the combined department into two departments, that of the Director of Housing and that of the Valuer to the Council. (g) At the time of the giving of the said Notice Joseph Edward James Toole was Valuer to theLondon County Council. The Director of Housing was a Mr. Allerton".
Paragraph 3: "It was submitted by the Respondent at the close of the case for the Appellant that there was no case for the Respondent to answer, and that the Application should fail, upon the preliminary ground that the said Notice was not signed as required by the Memorandum of Agreement".
Paragraph 4: "It was contended by the Appellant that the Valuer was on 2nd February 1955 the right and proper person to give and sign the said Notice on behalf of the London County Council according to the Standing Orders of the London County Council then in force".
Paragraph 5: "It was contended by the Respondent that by the terms of the said Memorandum of Agreement the said Notice had to be signed by the Director of Housing and Valuer to the Council and that since the functions of the Director of Housing and those of the Valuer were now exercised by two different persons, the Notice ought to be signed by both such persons. The Respondent further contended that in any event there was no evidence that the said J, E. Toole had authority to sign the said Notice on behalf of the' Director of Housing. The Respondent further contended that the standing orders of the Council could not affect the contractual position between the Council and the Respondent and that in any event no such orders had been proved in evidence".
Paragraph 6: "I was referred, to no cases".
Paragraph 7: "I was of opinion that the said Notice was bad because it was not given and signed both by the Director of Housing and by the Valuer to the London County Council and that in any event the said Notice was not signed by the Director of Housing or by anyone on his behalf, and I accordingly refused the Application for a Warrant".
Paragraph 8: "The question for the opinion of the High Court is whether or not the said Notice was good not withstanding that it was given and signed only by the Valuer to the London County Council".
I have read the Case stated by the Magistrate in full in order to make clear beyond doubt what the position was when the application came before him. It is clear that the only question which was raised was whether the Notice given by the London County Council or by someone who is said to be acting on their behalf was a good notice, for by clause (6) of the tenancy agreement it was provided that notice to determine should be "by a written notice signed by the Director of Housing and Valuer to the Council". The contention put forward on behalf of the tenant was that the notice which had been given was not a document signed by the Director of Housing and Valuer to the Council.
The position had changed. The London County Council had determine; to divide the department, which they had in the year 1953, into two departments, and the contention put forward on behalf of the tenant was that, as that had happened, there must be in order to determine the tenancy a notice signed by the Director of Housing and signed also by the Valuer to the Council. Some might think it unnecessary in one sense, having regard to the change in the constitution of the office of the London County Council. If one looks further down clause (6) of the tenancy agreement, one finds the words "or one of his assistants at the offices of the Council", from which it appears that at the time that document came into existence it was only contemplated there should be one signature. It is unnecessary to go further into this point for reasons which I shall give in a moment.
The learned Magistrate was asked to determine the case upon that submission and upon nothing else, as he himselfset out in the case which he has stated. He reached the conclusion that the notice was not in accordance with the contractual requirements, and he dismissed the application of the London County Council.
The case came before the Divisional Court on the 25th April of this year. Mr. Megarry, who now appears for the London County Council, told us that the case took a very short time in the Divisional Court. Certainly he cannot say that of the hearing in this Court which has lasted quite a long times as I ventured to point out to him. When the case was before the Divisional Court Mr. Fletcher Cooke on behalf of the London County Council took a new point. He raised a question which had net been mentioned to the learned Magistrate. The notice which had been given to determine the tenancy was signed by Mr. J.E.J. Toole, as I have said already; it was headed "London County Council", and on the next line in still larger print is "Landlord and Tenant Act, 1954." It is a landlord's notice to terminate a business tenancy. It states at the head of it that the notice is given by Mr. Toole, Valuer and Agent to the London County Council, and it is a notice "terminating your tenancy on the fifth day of August 1955" In accordance with the requirements of the landlord and Tenant Act 1954 clause 2 of the Notice states; "You are required within two months after receiving this Notice to notify me in writing whether or not you will be willing to give up possession of the premises on that date". Clause 3: "I would oppose an application to the court under part II of the Act for the grant of a new tenancy on the ground that on the termination of the current tenancy, the landlord intends to demolish or reconstruct the whole or a substantial part of the premises or to carry out substantial work of construction on the whole or part of them and thathe could not reasonably do so without obtaining possession of the premises". Clause 4: "This Notice is given...
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