Mark Anthony Thompson v Shereen Roberts (Respondent/Claimant)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BEATSON |
| Judgment Date | 23 May 2012 |
| Neutral Citation | [2012] EWHC 2160 (QB) |
| Court | Queen's Bench Division |
| Date | 23 May 2012 |
| Docket Number | Case No: QB/2012/0011 |
[2012] EWHC 2160 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Beatson
Case No: QB/2012/0011
MR IAN LOVELAND (instructed by Wandsworth & Merton Law Centre) appeared on behalf of the Appellant
MISS CLARE ROBERTS (instructed by Streeter Marshall) appeared on behalf of the Respondent
Approved Judgment
This is the hearing of the defendant's appeal against the decision of His Honour Judge Ellis in the Croydon Crown Court on 15 December 2011 granting the claimant possession of accommodation on the first floor of 132 Stanford Road, London, SW16 4 QB. The landlord's claim was a possession claim. The proceedings were pursued to CPR Part 55.8, which are normally heard before a District Judge, but for reasons given in paragraph 1 of the judgment they came before His Honour Judge Ellis.
The only ground of appeal that is now pursued is whether the judge erred in law in concluding, in what is essentially a summary judgment process, that where two documents giving notice of the termination of a tenancy are served simultaneously, one can look at those documents together in considering whether valid notice has been given. The judge so held in the light of and applying the decision of Bean J in Whittaker v Kinnear [2011] EWHC 1479 QB. Permission was given by Keith J on 19 March following an oral hearing. His Lordship refused to order, pursuant to CPR 52.14, that the appeal be transferred to the Court of Appeal.
The material facts can be stated shortly. Mr Thompson was the tenant of the first floor front room at 132 Stanford Road, with shared use of the kitchen and bathroom and garden. There was a dispute as to the terms of his tenancy. The claimant landlord maintained that it was a tenancy by oral agreement on 30 March 2008, requiring four weeks' notice. Mr Thompson maintained it was a tenancy by a written agreement dated 7 July 2008 contained in a letter from the landlord to him and signed by both. That provided "landlady will give you two month notice to quit premises".
Before the judge, the case proceeded on the basis that there was a written contractual tenancy. Two documents dated 2 February 2011 and served on the tenant on 3 February are referred to in the Particulars of Claim. The first is a letter; its material parts are:
"You occupy a room on the 1st floor at the front of 132 Stanford Road, Norbury under an arrangement made with you in 2008 by Mr Lloyd Roberts. In entering into this arrangement Mr Roberts was acting as the agent of our client.
We are instructed that at the time Mr Roberts made the arrangement with you and at all times thereafter our client has occupied 132 Stanford Road, Norbury as her only or principal home. Accordingly, we have advised our client that the arrangement under which you occupy your room… is in the nature of an excluded tenancy for the purposes of Part 1 of the Protection From Eviction Act 1977.
Our client wishes to terminate the tenancy and requests that you give up vacant possession of the accommodation that you occupy. Without prejudice to our client's contention that you are not entitled to any such notice, on behalf of our client we enclose by way of service notice to quit.
Further, without prejudice to: (1) our client's contention that the arrangement under which you occupy your accommodation at 132 Stanford Road is not in the nature of an assured tenancy; or (2) the notice to quit referred to above, on behalf of our client, we give you notice pursuant to section 21(4)(a) of the Housing Act 1988 that she requires possession of the room on the 1st floor at the front of 132 Stanford Road… that you occupy after the last day of the period of your tenancy next expiring after 2 months from the date you receive this notice."
The second document is headed "Notice to Quit". It stated inter alia that the landlord required the tenant to deliver up possession of the room "at the expiration at the period of your tenancy, which will expire after the expiration four weeks after service of this notice on you". At the bottom of the page there is a heading "Prescribed Information". Under it there are two paragraphs with the information required by the Protection from Eviction Act 1977 and SI 1998 No 2201.
It was accepted before the judge (see judgment paragraph 9) that, on the basis that there was a written contractual tenancy as the tenant had maintained, the period of notice given in the document headed "Notice to Quit" was not sufficient. The judge, however, accepted Miss Roberts's submission on behalf of the landlord that because the Notice to Quit and the letter were served simultaneously, the contents of the letter ensure that the necessary two months notice were provided. The judge accepted this submission on the authority on Whittaker v Kinnear. He considered that although the facts in that case differed from those in the present case, the issue which arose was similar. He stated at paragraph 11:
"The court can look at the two letters together and that leads me to conclude that proper notice was given terminating the tenancy, whether it be an assured short hold tenancy or was in the nature of a non-assured tenancy."
He concluded that there were no substantial grounds on which the claim could be genuinely disputed and made an order for possession.
There were originally four grounds of appeal. The first three were essentially submissions that the judge was wrong in applying Whittaker v Kinnear because it was distinguishable for a variety of reasons. Those grounds have been abandoned. Mr Loveland, who appears today on behalf of the appellant, Mr Thompson, explained that this had been done as a result of information about the precise circumstances of Whittaker v Kinnear which had come to light. All that is left is what I call the fourth ground, although it is Ground 2 in the grounds of appeal, this challenges the correctness of Whittaker v Kinnear.
Mr Loveland submitted that if Bean J's decision is seen as establishing a rule of law, ie that one can look at two documents to see whether proper notice has been given, it flies in the face of long established principle as to the need for certainty as to matters of date in the construction of notices to quit.
Before turning to long established principle, I summarise the material parts of Bean J's judgment. The issue about the validity of the termination first arose in that case at the appeal stage. Counsel sought to add an issue not raised before the judge, which was that there was insufficient notice (see paragraph 16). Secondly, the two notices served in that case, as in this case, required different periods of notice - the first required at least four weeks after service, the second the expiration of two months from service. Thirdly, (see paragraph 19), Bean J accepted that because the tenancy in that case which was originally an annual tenancy had become a monthly tenancy, the first notice was effective to terminate it on the requisite date. However, he went on, "But if not, then the second Notice to Quit perhaps more by luck than judgment was effective to terminate it" on the same day. "The second notice did not contain the statutory reminder to the tenant of her rights under the Protection from Eviction Act 1977, but the first one did." The judge accepted counsel's submission that where "the two...
To continue reading
Request your trial