McDonald and Another v Fernandez and Another
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hale,Lord Justice Potter |
| Judgment Date | 19 August 2003 |
| Neutral Citation | [2003] EWCA Civ 1219 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B1/2003/0955 |
| Date | 19 August 2003 |
[2003] EWCA Civ 1219
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEICESTER COUNTY COURT
HIS HONOUR JUDGE MAYOR QC
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Potter and
Lady Justice Hale
Case No: B1/2003/0955
Mark Simeon Jones (instructed by Messrs Abbot Kennedy Solicitors) for the Appellants
Peter Dean (instructed by Messrs Bray & Bray) for the Respondents
This was listed as an application for permission to make a second appeal against the order of His Honour Judge Mayor QC dated 11th April 2003 in Leicester County Court dismissing the applicants' appeal against the order of District Judge Merriman dated 17th March 2003. The District Judge had struck out the applicant tenants' defence to the respondent landlords' claim for possession of their home. Chadwick LJ adjourned the application for hearing on notice with the appeal to follow if permission is granted.
The case raises a short point on the construction of section 21(4) of the Housing Act 1988. This reads as follows, with the relevant words italicised:
"Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling-house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied
(a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice in writing stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and
(b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above."
The facts are not disputed. The tenants were granted an assured shorthold tenancy of 15 Avenue Road Extension, Leicester, for 6 months from 4th September 1999 to 3rd March 2000. They remained thereafter as statutory periodic tenants from the 4th of each month to the 3rd of the following month. On 24th October 2002 the landlords gave them a notice headed 'Section 21(4)(a) —Assured Shorthold Tenancy: Notice Requiring Possession: Periodic Tenancy'. The relevant part reads as follows:
"I give you notice that I require possession of the dwelling house known as 5 Avenue Road Extension Leicester on 4th January 2003"
The issue, therefore, as summed up by Chadwick LJ is: 'whether a notice which (i) does not specify any date which is (or is said to be) the last day of a periodic tenancy, but (ii) requires possession to be given on a day which is (and is known to be) the day immediately following the last day of a periodic tenancy is a valid notice for purpose of section 24(1)(a)'.
He considered that this was a question which ought not to be in doubt. County courts deal with large volumes of accelerated possession proceedings every day. There should not be uncertainty and inconsistency between them. Chadwick LJ did not himself give permission to appeal because a stay of execution would be needed and this should not be granted without giving the landlord an opportunity to make representations. Hence the most convenient course was to adjourn for hearing on notice.
Despite Mr Peter Dean's valiant attempts to persuade us that the case does not raise 'an important point of principle or practice' for the purpose of section 55(1) of the Access to Justice Act 1999, we agree that this simple question of great practical importance to the everyday work of county courts up and down the country should not be left in doubt. Save to the parties in this case, to whom of course it is important, it matters less which way the issue is resolved than that it is resolved one way or the other. We therefore gave permission to appeal at the outset of the hearing.
Mr Mark Jones' argument on behalf of the tenants is simple. It must be understood against the background of section 5(1) of the 1988 Act, which provides that 'an assured tenancy cannot be brought to an end by the landlord except by obtaining an order of the court' in accordance with chapters I or II of the Act. Accordingly, 'the service by the landlord of a notice to quit shall be of no effect in relation to a periodic assured tenancy'. Section 21 is in chapter II. Section 21(1) deals with court orders for possession 'on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy'. Section 21(4) deals with court orders for possession where the dwelling is let 'on an assured shorthold tenancy which is a periodic tenancy', as here. Section 21(4) is 'without prejudice to any such right as is referred to in subsection (1)' so they are obviously intended to make different provision from one another.
Both subsections, it should be noted, are concerned with the criteria for making court orders for possession and not with the requirements of notices to quit in the contractual or common law sense.
Mr Mark Jones also points out that the notice stated that possession was required on 4th January 2003. This was not 'the last day of a period of the tenancy' for purpose of section 21(4)(a). The last day was 3rd January. The notice did not therefore comply with the requirement that the notice state that possession was required 'after a date specified in the notice, being the last day of a period of the tenancy'. It was thus invalid. Apart from the straightforward wording of section, Mr Jones relies on the only two authorities dealing with section 21(4) which counsel have traced.
In Lower Street Properties v Jones (1996) 28 HLR 877, CA, the notice did not give a date, but did say that it would expire 'at the end of the period of your tenancy which will end after the expiry of two months from service' of the notice. It therefore referred to the last day with sufficient specificity because it could readily be ascertained. But Kennedy LJ said this at p 882:
"… Because of the wording of section 21(4) if an actual date is to be given in the notice it must be 'the last day of the period of the tenancy' and there is an obvious risk of a minor arithmetical error giving rise to the argument that the notice is invalid which no doubt is why the printed form suggests as a possible form of wording that the notice will expire 'at the end of the period of your tenancy which will end after the expiry of two months from the service upon you of this notice'… "
We are told that landlords do often use this saving formula, but they did not do so in this case.
Mr Jones also refers us to Gracechurch International SA v Tribhoven and Alodul (2001) 33 HLR 263, CA, in which it was accepted that the notice was invalid and Lower Street Properties was referred to in that context. Although it might be inferred that the notice was invalid because the wrong date was specified, we do not know this to be the case. This case therefore adds nothing to the simple proposition that the subsection requires the date specified to be the last date of a period of the tenancy, which this was not.
For the landlords, Mr Peter Dean has two submissions. His first is that a periodic tenancy may have 'two last days', the last day of one period and the first day of the next. Hence the last day of this period could be either the 3rd or the 4th January and the notice was accurate. To the ordinary person this would be a startling proposition. But Mr Dean relies on authorities dealing with contractual and common law notices to quit. In Sidebotham v Holland [1895] 1 QB 378, this Court held (AL Smith LJ doubting) that a notice to quit a yearly tenancy on either the last day of the year or the anniversary of its beginning was a good notice. This was followed in Crate v Miller [1947] 1 KB 946, where this Court held that a weekly tenancy which begins on Saturday may be determined validly by notice to quit either on...
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