Prosser (A.) & Son Ltd v Levy
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON |
| Judgment Date | 31 October 1955 |
| Neutral Citation | [1955] EWCA Civ J1031-1 |
| Court | Court of Appeal |
| Date | 31 October 1955 |
[1955] EWCA Civ J1031-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Singleton,
Lord Justice Jenkins and
Lord Justice Parker
Mr GILBERT J. PAULL. Q.C. and Mr C.N. GLIDBWELL (instructed by Messrs Manches & Co., Agents for Messrs David Blank, Alexander & Co., Manchester) appeared on behalf of the Appellants (Plaintiffs).
Mr D. BRABIN. Q.C., Mr J.D. CANTLEY. Q. C. and Mr A.K. HOLLINGS (instructed by Messrs Gardiner & co. Agents for Messrs A.W. Mawer & Co., Winchester) appeared on behalf of the Respondents (First Defendants).
the Judgment I am about to read is the Judgment of the Court.
The Plaintiffs were the occupiers of a lock up shop on the ground floor of No. 15 Market Street, Manchester, when on the 5th June, 1953, there was an escape of water from above and much damage was caused to the Plaintiffs' goods and fittings. The owners of the premises are the first Defendants, the trustees of the Levy Estate Trust, to whom we shall refer as "the trustees". They had purchased the freehold of the premises in the year 1951, at which time the Plaintiffs were occupiers of the ground floor under the terms of a lease which was still running on the 5th June, 1955.
The position in regard to the upper parts of the building is clearly shown in the Judgment of Mr Justice Havers in this passage: "On the 2nd July, 1951, the trustees granted a lease of certain parts of this property to the second Defendants, Barder Morris Incorporated Limited. The lease provided that the lessors demise (the lessors being the trustees) to the second defendants: 'all those offices and warerooms situate on the first, second and third floors known as 15 Market Street in the City of Manchester together with the wight (in common with all others to whom the lessors may give the like right) of ingress egress and regress through or by means of the entrance doors staircases passages serving the first second and third floors of the said building' for a term of three years beginning on the 2nd July, 1951 'subject to but with the benefit of the existing tenancies in respect of the demised premises particulars whereof are set out in the attached schedule'.
"Now on the natural and ordinary interpretation of that document it seems clear that what was being demised by the trustees to the second Defendants, were these offices and warerooms on the first, second and third floors and they hadthe right solely of ingress, egress and regress through the entrance doors, stairways and passages which served these three floors. The view I take on a natural and ordinary interpretation of that document is that all the so cacti Defendants acquired under that was a United right of ingress, egress and regress through the stairways and passages and that the trustees were reserving to themselves the ownership and control of those stairways and passages. There was no covenant by the trustees to maintain, repair or decorate the stairways or passages.
"On the 25th March, 1954, there was an agreement for a tenancy made between the second Defendants and Mr Leslie James Thorpe, who trades as A. Robinson & Sons. Under this agreement the second Defendants let to A. Robinson & Sons the four officessituate on the second floor of the building together with a right of access thereto between the hours of 8.30 a.m. and 6 p.m. on week days and such other hours as may be mutually agreed up en by means of the staircases and common passages and together with the use (in common with all persons having the like right) of the lavatories and conveniences on the second floor of the building.
"The agreement contained a covenant by by Robinson & Sons: 'to keep in good and tenantsble substantial and complete order repair and condition at their own expense the whole of the inside part of the said demised premises together with electric light and heating installation (except the main bearing timbers or main girders main walls and roofs) and the partitions floors ceilings glass in the window and the locks and fastenings thereof and the painting and papering thereof'. Clause 5 of the agreement contained a covenant by the landlord: 'to keep the outside main walls and roof passages and staircases intended for the use of theoccupants at ill times in complete repair and as to the conveniences in proper sanitary and clean condition and fit for comfortable use and enjoyment by the This'. occupants agreement was in fact signed toy Robinson & Sons, but it never appears to have been signed by the second Defendants. In fact Robinson & Sons went into possession on the terms of thin agreement.
"Now an agreed plan was pit in evidence before me, and it shows quite clearly what was the occupation of the second floor of this building. For convenience and identification the various offices have been lettered beginning from the left of the plan. On this floor the offices A, B, C and were occupied by A. Robinson & Sons. Office was occupied fey the second Defendants, who had left upon it the name of the North Manchester Manufacturing Company. As you cone up the stairs to this floor there is a fairly long passageway, and these three offices on the right-hand side open out into this passageway, as does the sale office at the end of the passageway. On the left-hand side there are some stairs which go upward, and on one of the stairs there is a door opening from the ladies' water closet to that stairs. Going a little further on the same side of the there was a washbasin.
Once or twice a day Mr Barder, a Director of the second Defendants, or one or other of his two employees, Mr Dobs on passed through this passage on the second floor to the one storeroom which they occupied on this floor, which was carked on the plan, Mr Barder and Mr driver, one of his employees, used the W.C. on the third floor. Miss Dobson, the other employee, used the ladies' toilet on the third floor, the one I have already mentioned. Barder, Mr Driver nor Miss Dobson, ever used this washbasin on the second floor. They had an enclosed washbasinon the first floor which was practically opposite the washbasin on the second floor. Otherwise none of these persons ever had occasion to use the passageway oq the second floor.
"For the purposes of cleaning Mr Barder employed a cleaner to keep his own office clean. He told me - and I accepthis evidence - that she used to do her cleaning from 8 o'clock to, by the latest, 12 noon.
"So far as the stairways and passageways were concerned, Mr Barder and Messrs Robinson had an arrangement by which the work of cleaning was done under the supervision of Messrs Robinson & Sons, who employed somebody to do it. They cleaned the passage ways on the first, second and third floors and the stairs, and the arrangement between the two was that Mr Barder contributed 5/- a week towards the wages of the cleaner. This again was always done between 8 o'clock and either 11 or 11.30 at the latest, and Mr Barder had never seen the cleaner, he told me, after lunch. Mr Barder was not sure whether the cleaners had a key and he thought they had not, but he usually found them there when he arrived in the morning.
"So far as the decoration was concerned, some time about February 1953 Mr Barder and Messrs Robinson both came to the conclusion that the state of decoration was not very good and they thought that from a business point of view it was desirable to do something about it. They made an arrangement to share the costs of decorating the passageways, and in fact the passageways and walls were decorated. They divided the cost in shares and the cost to each was in the neighborhood of £10, the trustees were asked to consent to this and they gave consent.
"The position, therefore, with regard to the rest of the building was this. The first floor was occupied byMessrs Fitton & Sons. They occupied one office on the first floor under an agreement put in before me of 5th October, 1951, and they had a similar right to use, in common with all other persons having the, like right, the lavatories and conveniences on the floor of the building.
"The whole of the remainder of the first floor other than the one office occupied by Fitton & Sons was occupied by the trustees. I have already said with regard to the second floor that Messrs Robinson occupied four of the offices, and the second Defendants occupied office D. The third floor was occupied by Messrs Moore & O'Farrell Ltd., sub-tenants from them.
"Now the building had a front door opening into Market Street and the occupants to leave in the normal course of events between 5 and 6 o'clock at night. There seems to have been rather a haphazard method of locking the door. The person who believed himself to be the to leave the building locked the door. He would call out to see if there was anybody present, but of course as there were four floors it is possible that he was not always heard. In fact on occasions he might be the last person but did not believe he was, in which event it appears that the door might possibly be left open, so there might be an opportunity for a trespasser to come in from the street and go to the second floor and, if he were mischievously minded, interfere with this piece of pipe to which I shall have to refer in a moment".
Barder Morris & Co. Ltd. were the second Defendants in the action which was brought by the Plaintiffs to recover damages. Mr Justice Havers, at the Assizes at Winchester on 21st March, 1955, held that the Plaintiffs were not entitled to succeed against either of the Defendants and gave Judgment for them with costs. The Plaintiffs appeal against the Judgment in so far as it is in favour of the trustees, Noquestion is raised on the...
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