Moore v Assignment Courier Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE MEGAW,SIR JOHN PENNYCUICK,LORD JUSTICE GEOFFREY LANE
Judgment Date20 January 1977
Judgment citation (vLex)[1977] EWCA Civ J0120-5
CourtCourt of Appeal (Civil Division)
Date20 January 1977

[1977] EWCA Civ J0120-5

In The Supreme Court of Judicature

The Court of Appeal

(Civil Division)

(From: Mr. Justice Kenneth Jones - in Chambers London)

Before:

Lord Justice Megaw

Lord Justice Geoffrey Lane and

Sir John Pennycuick

Thomas Cyril Moore and Florence Maud Moore
and
Assignment Courier Limited
Same
and
Same
Same
and
Same
Same
and
Same
Same
and
Same
Same
and
Same

Mr. GAVIN LIGHTMAN (instructed by Messrs. Macdonald Stacey & Co.) appeared on behalf of the Appellants (Plaintiffs).

The Respondent Defendants did not appear and were not represented.

LORD JUSTICE MEGAW
1

I shall ask Sir John Pennycuick to deliver the first judgment.

SIR JOHN PENNYCUICK
2

We have "before us appeals in six consolidated actions. In all the actions the plaintiffs are Thomas Cyril Moore and Florence Maud Moore, and the defendant is Assignment Courier Ltd. The appeals arise from an order of Mr. Justice Kenneth Jones dated the 16th November, 1976, whereby he dismissed an appeal against a decision of Master Warren dated the 29th October, 1976. All the actions raise the same issue, although the particular facts in the actions are different. We have for convenience heard the appeal in the action intituled 1973 M. No. 53U5 and I propose to give this judgment upon the appeal in that action. It will be apparent from the conclusion which I have reached that the same result must follow in all the other five appeals.

3

The issue raised is a short and interesting one, namely: where a landlord purports to forfeit a lease and the tenant remains in occupation, is the landlord entitled to be paid, pending a determination of the landlord's forfeiture action, a periodic interim sum representing compensation, under one head or another, for the use by the tenant of the land during the period between the purported forfeiture and the determination of the action?

4

Mr. Lightman appeared for the plaintiff appellants. Most unfortunately from our point of view, the defendant company was not represented before us (as I understand, equally it was not represented below) and in consequence we have not had the advantage of hearing argument from the point of view of the tenant on what is an important question of law. We have nevertheless reached a clear conclusion upon the issue and have thought it right to decide these appeals without taking the step which we might otherwise have taken of inviting the assistance of an amicus curiae to argue on behalf ofthe defendant company.

5

The facts in the present case, i.e. No. 5345, are as follows. On the 15th August, 1968, the plaintiffs entered into a lease of a certain property in Evesham Street, Hammersmith, London. The lease was for the period of 21 years from the 25th March, 1968, at a rent of £4,500 a year. The lessee under the lease was a company known as Ament Engineering Co. Ltd. The lease reserved the yearly rent, as I have said, of £4,500. It contained covenants by the tenant to the following effect (there is nothing unusual in any of these covenants): (1) not to erect new "buildings or make alterations of the demised premises without the license of the landlord; (2; not to carry on or permit to "be carried on upon the demised premises any trade or "business other than that of sheet metal workers and general engineers; and (3) not to assign, underlet or part with the possession of the demised premises or any part thereof without the written consent of the plaintiffs. The lease contained the usual proviso for re-entry. The lease also contained a provision that at the end of the first 7 years - that is, on the 25th March, 1975 - there should he a rent review applicable to the second 7 years of the term. The review was to he carried out "by a surveyor nominated by the President of the Royal Institute of Chartered Surveyors. On the 4th February, 1972, the term under the lease was assigned to the defendant company.

6

The plaintiffs' claim, as appears from the statement of claim in this action, is that there have been breaches of all the three covenants to which I have referred, namely, the covenant against building, the covenant against carrying on any other business, and the covenant against assignment. The defence in part denies the breaches; it in part alleges either that the breaches were committed with the consent of the plaintiffs or that the plaintiffs have waived those breaches. Those are issues into which it would not beright for this Court to enter, and indeed it has no material upon which to do so. The issues will have to he determined at the hearing of the action.

7

Pursuant to the rent review provision, a review was in fact carried out "by a Mr. Bradley, chartered surveyor. He determined, on the 19th February, 1976, that the annual value of the demised premises was £9,000. There appears to "be some dispute as to that figure, though precisely what the dispute is is not altogether clear. It is stated "by Mr. Thomas Cyril Moore, the first plaintiff, in his affidavit that the defendants do not accept Mr. Bradley's determination that the rent payable for the second 7 years was £9,000 and contend that the rent payable for that period was agreed by the plaintiffs and the defendants at £7,800, which contention is not accepted by the plaintiffs. I will assume for the purpose of this appeal that there is a genuine issue between the plaintiffs and the defendants on that point and that at the present time the plaintiffs are only entitled to assert that the rent payable for the second 7 years is £7,800 per annum. I will also assume that they are entitled to rent at that rate. It seems to me that those are proper assumptions to be made upon the evidence which was placed before this Court by the plaintiffs. I would say at this stage that no evidence was put before the court on behalf of the defendants.

8

That, then, is the state of the action. It was begun by writ dated 20th December, 1973. The statement of claim was delivered on the same date; and the defence was delivered on the 8th February, 1974. We are told that the prolonged delay since then has been due to negotiations between the parties. The statement of claim in its original form did not raise the contention relating to rent review, as indeed it could not because the rent review was subsequent to the original statement of claim: but the statement of claim was amendedat the hearing before the Master this year, without objection by the defendants - indeed, I think with the defendants' consent.

9

The defendants, by agreement with the plaintiffs, paid rent at the rate originally fixed, that is to say £4,500 a year, until the last quarter day before June, 1976. They have not paid any rent since then. Those payments were made without prejudice to the plaintiffs' claim to forfeit the lease. What the plaintiffs now contend is that, in respect of the period since the rent review began to operate, there should be an interim order upon the defendants to make up the payments which they have already made to the lower sum which is common ground between the parties under the rent review - that is, £7,800 a year - and should also make an interim payment at that rate since the date when the last payment at the original rate was made. The figures will be found in the affidavit of Mr. Moore, and nothing turns upon them. The actual figure claimed is £6,075.

10

To complete the history of this matter, the present position is that on the 29th October, 1976, particulars of the defence were ordered by the Master to be delivered within 14 days; and there is now pending a summons on the part of the plaintiffs to strike out the defence by reason of default in delivery of those particulars. That summons has been fixed for hearing on the 4th February. If indeed the defence is struck out, that would be the end of this matter. But one must assume that, on one ground or another, the action will be allowed to proceed; so the claim for interim payment is one of importance to the plaintiffs.

11

The plaintiffs issued their summons claiming interim payments at the rate which I have mentioned, and, as I have indicated, that summons was supported by an affidavit by Mr. Moore setting out the facts and giving particulars of the various amounts. No affidavit in answer was filed; nor were the defendants represented at thehearing "before the Master. The Master, however, dismissed the application. The plaintiffs appealed to Mr. Justice Kenneth Jones, who upheld the Master's decision. Mr. Justice Kenneth Jones did not give any judgment, hut as I understand he indicated in the course of the hearing that although he had some sympathy with the plaintiffs' claim there was no legal ground upon which it could he supported.

12

Upon the present appeal Mr. Lightman rested his contentions on two grounds. The first is Order 14 of the Rules of the Supreme Court, and the second is the inherent jurisdiction of the court. I will get rid first of the contention based on Order 14, because I think that contention is manifestly ill-founded. Order 14 (1) reads as follows: "Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has entered an appearance in the action, the plaintiff may, on the ground that that defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part except as to- the amount of any damages claimed, apply to the court for judgment...

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2 firm's commentaries
  • Buttar Construction Ltd v Arshdeep: Interim Payments And Insurance
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    ...has been established by a final judgment. The Court has no inherent power to order payment on account (Moore v Assignment Courier Ltd [1977] 1 W.L.R. 638; [1977] 2 All E.R. 842, The power to order interim payment was first established following recommendations by the Winn Committee in 1968 ......
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    ...has been established by a final judgment. The Court has no inherent power to order payment on account (Moore v Assignment Courier Ltd [1977] 1 W.L.R. 638; [1977] 2 All E.R. 842, The power to order interim payment was first established following recommendations by the Winn Committee in 1968 ......

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