Pennycook v Shaws (EAL) Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE PUMFREY |
| Judgment Date | 28 November 2002 |
| Neutral Citation | [2002] EWHC 2769 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No. CC/2002/APP/0586 |
| Date | 28 November 2002 |
[2002] EWHC 2769 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Pumfrey
Case No. CC/2002/APP/0586
MR W GELDART for the Claimant
MR N VICKERY for the Defendant
This is an appeal from an Order by His Honour Judge Cox sitting at the Lambeth County Court whereby he struck out proceedings for a new tenancy commenced by Mr Walbert Pennycook in respect of premises at l30 Railton Road, London SE24. The premises in question are principally a barber shop and, I believe, a floor over.
Mr Pennycook was the tenant under a lease for l0 years of the premises granted by the then landlord, Mayshore Property Company Limited, on 27 March 1991. The demise was for a period of ten years from 25 March 1989. Towards the end of the contractual term, Mr Pennycook entered into some inconclusive negotiations with the landlord in respect of a purchase of the freehold of the premises, and even gave a tenant's notice under part 2 of the Landlord and Tenant Act 1954 in respect of which the necessary proceedings were not commenced in time. The history which gives rise to the present proceedings starts with a landlord's notice which was served on Mr Pennycook on 8 November 2001 pursuant to section 25 of the Act. On 4 December 2001, Mr Pennycook served a counter notice. This counter notice was served on a form printed by the well-known law stationers, Oyez, headed “Landlord and Tenant Act 1954 ss 25(5) and 29(2)” and is entitled “Tenant's counter notice as to willingness to give up possession of business premises”. After reciting the essential features of the landlord's notice, the pro forma continues, against a marginal note 6, “Delete if tenant does not wish to apply for a new tenancy, see note 3” with the following:
“Take notice that I/We will [not] be willing to give up possession of the property comprised in the tenancy on that date.”
Mr Pennycook's solicitor, Mr Alfonso Constantine Winter, sets out in his witness statement the circumstances in which this notice came to be given. He says that he perused the papers when he was instructed by Mr Pennycook on 4 December 2002 and he prepared the counter notice, and he says that he typed it, and at the same time he instructed a surveyor to act for Mr Pennycook in negotiations of the terms for a new lease. It was the surveyor who detected the error in the counternotice, since he received a letter from Mr Winter telling him that Mr Pennycook wished to renew the lease and was going to instruct Mr Winter to apply to the court for a new lease unless terms could be agreed with the landlord.
This evidence, at its lowest, strongly suggests that Mr Winter made a grave error in the completion of the form and completed it contrary to his instructions (but I say no more about that at this stage), since the two month period for a counternotice to the landlord's notice had, when Mr Winter gave the defective notice, another month to run. As soon as the surveyor detected the error and notified Mr Winter of it on 2 January 2002, Mr Winter on 4 January 2002 gave a further notice, this time in the correct form. Purportedly pursuant to that notice, Mr Pennycook issued his claim in the Lambeth County Court for a new tenancy and the claim was struck out by His Honour Judge Cox on 9 July this year.
The relevant provisions of the Landlord and Tenant Act l954 are, as follows. By section 24(1):
“a tenancy to which this part of this Act applies shall not come to an end unless terminated in accordance with the provisions of this part of this Act and subject to the provisions of section 29 of this Act the tenant under such a tenancy may apply to the court for a new tenancy
(a) if the landlord has given notice under section 25 of this Act to terminate the tenancy; or
(b) if the tenant has made a request for a new tenancy in accordance with section 26 of this Act.”
Section 25, as is well known, sets out the prerequisites for the termination of a tenancy by the landlord. The notice to be given by the landlord to the tenant must be in the prescribed form and must specify the date at which the tenancy is to come to an end, which is defined as the date of termination. The section concerns itself both with the permitted range of dates of termination and prescribes by sub-section (4) that subject to the provisions of sub-section (3), “a notice under the section shall not specify a date of termination earlier than the date on which, apart from this part of this Act, the tenancy would have come to an end by effluxion of time”.
By sub-section (5), “a notice under this section shall not have effect unless it requires the tenant, within two months after the giving of the notice, to notify the landlord, in writing, whether or not at the date of termination, the tenant will be willing to give up possession of the property comprised in the tenancy”. The landlord's notice being on a pre-printed form, as one would expect, complied with this requirement and Mr Pennycook availed himself of the opportunity provided to notify the landlord, first that he would be willing to give up possession, and second that he would not.
By section 29(1),
“…subject to the provisions of this Act on an application under sub-section (l) of section 24 of this act for a new tenancy,
(1) the court shall make an order for the grant of a tenancy comprising such property at such rent and on such other terms as are hereinafter provided;
(2) where such an application is made in consequence of a notice given by the landlord under section 25 of this Act it shall not be entertained unless the tenant has duly notified the landlord that he will not be willing at the date of termination to give up possession of the property comprised in the tenancy;
(3) no application under sub-section (1) of section 24 of this Act shall be entertained unless it is made not less than two, nor more than four months after the giving of the landlord's notice under section 25 of this Act or, as the case may be, after the making of the tenant's request for a new tenancy.”
There is no doubt that Mr Pennycook's application to the county court satisfied sub-section (3) of section 29; the question is whether it satisfied the requirements of sub-section (2). In approaching this question, the learned Judge relied upon the decision of Brightman J, as he then was, in the case of Re 14 Grafton Street London Wl, de Haviland Antiques Limited v Centrovincial Estates Mayfair Limited [1971] l Ch 935. This was a case in which the tenant sought compensation under the part of Landlord and Tenant Act l954 as amended by the Law of Property Act 1969, an amendment which came into effect during the currency of the two month period permitted for the tenant's notice. The headnote sets out the determinations of Brightman J as follows:
“1. that in order to be entitled to compensation for disturbance the tenant must first have served a counter notice on the landlord under section 29(2) of the Act of l954, stating that he was unwilling to vacate the premises, and secondly, under section 37(1) of the Act, before amendment, he must have applied to the court for a new tenancy, but a counter notice which expressed willingness to quit was irrevocable and that accordingly after October 13, the tenants could not give notice of unwillingness to quit, and had lost their right to apply to the court, and the landlords in turn had acquired an indefeasible right to obtain possession on April 1, l970 without paying compensation.”
It is important in this case to observe the material dates. The notice to terminate the tenancy was given on April 1, l970, the notice being given on September 27, l969. The tenants gave what was subsequently described as a positive counternotice, that is to say, a notice indicating their intention to vacate the premises, on October 13, l969. On October 22, 1969, the Royal Assent was given to the amending statute which came into effect on January l, l970 and the tenants enquired about compensation on February ll, 1970. The two month period from service of the notice therefore expired somewhere around about November 27, l969.
Brightman J first interpreted the expression “duly notified” in section 29(2), which I have read, as meaning a notification within two months after the giving by the landlord of a section 25 notice. He said that that is made clear by the wording of section 25(5), which I have also read, and if I may respectfully say so, I respectfully agree.
He then turned to the scheme of the statutory provisions on page 942 at letter F, in a passage which I should read out in full:
“It appears to be the scheme of the Act that a landlord's notice under section 25...
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