Pascall v Galinski
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WINN,LORD JUSTICE CROSS |
| Judgment Date | 25 July 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0725-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 1969 |
[1969] EWCA Civ J0725-4
In The Supreme Court of Judicature
Court of Appeal
The Master of The Rolls (Lord Denning),
Lord Justice Winn and
Lord Justice Cross
In the Matter of the Leasehold Property (Repairs) Act 1938
In the Iiatter of an Intended Action and in the Matter of the Repairing Covenants Contained in a Lease Dated the 15th Day of January 1880.
Appeal of first, second and third named respondents from Order of His Honour Judge Moylan at Edmonton County Court on 16th December, 1968.
Mr. F.E. HIORNS (instructed by Messrs. Gale & Phelps) appeared on behalf of the Appellants.
The Honourable CHRISTOPHER BATHURST (instructed by Messrs. Hyde Mahon and Pascall) appeared on behalf of the Applicants.
THE MASTER OF THE ROLLS; in 1880 a long lease was granted of 81 West Green Road, for 99 years from 1877 at a ground rent of £9 a year. The freehold of those premises has now for many years been vested in trustees, the present trustees being Mr. Pascall and Mrs. Smith. The leasehold was many years ago vested in a Mrs. Cullum. It could be assigned by the lessee without the consent of the landlord. It was sub-let to occupying tenants — shop and dwelling-house. As Ions ago as 1963 or before Mrs. Cullum died: and the landlords through their solicitors were dealing with a firm of solicitors, Gale & Phelps, on the supposition that those solicitors were acting for "The executors and trustees of Mrs. Cullum deceased". Gale & Phelps paid the ground rent on behalf of the lessees. They entered into negotiations on behalf of the lessees to buy the freehold. But those negotiations did not come to anything. In June of 1965 the landlords" solicitors asked Gale & Phelps for the name and address of the present lessees. They did not get the information, as the solicitor, Mr. Gale, was leaving for his holidays: and after he came back the matter was overlooked. In March of 1967 the property was In such a dilapidated condition that the landlords by their solicitors felt it necessary to take steps to forfeit for non-repair and to claim damages on account of the breaches of the covenant to repair. They did not know the name of the lessees. So on the 30th March of 1967 they served on the premises a notice addressed to "The lessee of 31, West Green Road". It was a notice under section 146 of the Law of Property Act, 1925, requiring the premises to be repaired and put in proper condition. It contained a statement telling the lessee that he was entitled to serve a counter-notice claiming the benefit of the Leasehold Property (Repairs) Act, 1933. Messrs. Gale & Phelps, solicitors, served a counter-notice on the 31st March of 1967 in these terms: "As Solicitors for the Lessee of 81, West Green Road, London, N.15 ……. we hereby give you notice that the said.lessee claims the benefit of the Leasehold Property (Repairs) Act 1938." Be it noted, not giving the name of their lessee client at all.
I have some doubt whether this counter-notice was valid, seeing that it did not contain the name of the lessee. But assuming that it was valid, the landlords could not take action for forfeiture or damages except by leave of the Court; see section 1(3) of the 1938 Act. of the landlords were in this difficulty — they did not know the name of the lessees. So the landlords on the 16th May, 1967, asked the solicitors, Gale & Phelps, to give the full name and address of their client, the lessee of the above property, adding; "We must add that the refusal to disclose your client's identity can only be a tactical delaying manoeuvre and that if this adds to our clients' costs in the matter our clients will bring your conduct in this matter to the notice of the Court when the question of costs is being considered." Messrs. Gale & Phelps replied on the 17th May, 19672 "If the last paragraph of your letter was intended to intimidate us, it fails in its purpose. In our view it was quite improper for you to include that paragraph of your letter."
Gale & Phelps refused to disclose the name of the lessee for whom they were acting. They have not disclosed it to this day. Mr. Hiorns told us quite frankly on behalf of the solicitors that their client, the lessee, whoever he may be, has given the solicitors instructions not to disclose his name. His reason is because he does not want to be sued for damages for breach of covenant to repair.
Assuming that the counter-notice was valid, the landlords were thus in a dilemma. The Statute required them to obtain the leave of the Courts but they did not know who was the lessee to be served. They had an idea that it might be one or other of these gentlemen. So they served the summons on them. Two of them were gentlemen with the surname of Galinski. The third was Mr. Ruben Gale, a solicitor who is shown in the Law List asthe sole...
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