Robert Lingen Burton (Applicant v David Timmis (First Respondent Raymond George Taylor (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KERR,MR. JUSTICE SWINTON THOMAS |
| Judgment Date | 27 November 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J1127-7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 86/1069 |
| Date | 27 November 1986 |
[1986] EWCA Civ J1127-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SHREWSBURY
COUNTY COURT
(HIS HONOUR JUDGE NORTHCOTE)
Royal Courts of Justice
Lord Justice Kerr
and
Mr. Justice Swinton Thomas
86/1069
Case No. 8300427
and
MR. MARTIN THOMAS QC and MR. MICHAEL FARMER (instructed by Messrs. Scott Lister & Co, Solicitors, Shrewsbury, Shropshire SY1 1DQ). appeared on behalf of the First Respondent (Appellant)
MR. JONATHAN GAUNT (instructed by Messrs. Sharpe Pritchard & Co, Solicitors, London WC2B 6PZ, Agents for Messrs. Sprott Stokes & Turnbull, Solicitors, Shrewsbury, Shropshire SYl 1LU) appeared on behalf of the Applicant (Respondent)
This is an appeal by the tenant, Mr. Timmis, from a judgment of His Honour Judge Peter Northcote given in the Shrewsbury County Court on 26th March 1986. He had before him an application to set aside, or remit, the award of an arbitrator made under the Agricultural Holdings Act 1948. For present purposes the relevant provisions are paragraphs 25(2) and 25A(2) of Schedule 6 of that Act, which are in the following terms:
"25(2) Where the arbitrator has misconducted himself or an arbitration award has been improperly procured or there is an error of law on the face of the award, the county court may set the award aside.
"25A(2) In any case where it appears to the county court that there is an error of law on the face of the award the court may, instead of exercising its power of remission under the foregoing sub-paragraph, vary the award by substituting for so much of it as is affected by the error such award as the court considers that it would have been proper for the arbitrator to make in the circumstances; and the award shall thereupon have effect as so varied".
For present purposes the main issue is whether or not this award contained an error of law on its face, and whether the judge was accordingly entitled to vary it as he did.
I should say in passing that the Arbitration Act 1979 has of course not affected that jurisdiction, although it is now no longer open for the High Court to set aside an award for an error of law on its face. But this statutory arbitration procedure, with an appeal to the county court, is unaffected by that.
The matter arises out of a tenancy agreement made between the plaintiff, Mr. Burton, and the defendant, Mr. Timmis, dated 16th January 1964 relating to a property known as Preston Boats Farm in Upper Magna, Shropshire. The extent of the farm originally let was some 45 1/2acres, but there have been additions and it is now about 56 acres.
The rent originally agreed was £364.10s per annum, payable half-yearly in arrear on the March and September quarter days; it was increased to £940 with effect from 25th March 1975; and it was again increased, with effect from 25th March 1978, to £1,250. The matter with which we are concerned arises out of a proposed increase in 1981, which the tenant required to be referred to arbitration. In June 1981 an arbitrator was appointed for the purpose of determining the appropriate increase, if any.
However, before the arbitration took place, the increase and certain other terms were agreed at a meeting between Mr. Timmis, Mr. Morgan and a Mr. Witt (Mr. Witt being the agent of the landlord) at the farm on 6th April 1981. The terms of that agreement were set out in two documents, to which I shall turn in a moment, but so far as the rent was concerned, it was agreed that it should be increased to £2,800 per annum. Mr. Thomas QC, who has said everything possible on behalf of the tenant, has drawn attention to the fact that this was a very substantial increase indeed.
I should have mentioned—though it hardly requires mention—that under the terms of the lease the landlord had power to re-enter in default of payment of rent.
The agreement reached at the meeting was incorporated into a letter which enclosed a memorandum. The fact that the terms of the oral agreement were incorporated into this letter, together with the memorandum, was found by the arbitrator in his Award arising from the subsequent dispute, to which I shall come in a moment; I first read the letter.
This is from Mr.Witt to Mr. Timmis, headed "Preston Boats Farm", and it reads as follows:
"I refer to previous meetings and in particular the meeting held on 6th April when we reached agreement in respect of the new rent to be paid at Preston Boats Farm from 25th March 1981.
"This new rent is to be subject to the agreed terms as follows:-
1. The Landlord will install a new damp proof course to the farmhouse.
2. The Landlord will carry out all necessary repairs to the first floor of the granary. This to be the renewal, where necessary of damaged floor boards and the treatment of timber work with wood preservatives.
3. The Landlord will carry out the replacement, where necessary, of the ridge tiles to the granary roof.
4. The Landlord will carry out the external painting of the farmhouse and buildings and will recover 50% of the cost from the Tenant.
All these items to be carried out prior to the 1st September 1981.
5. The Landlord will grant permission for the Tenant to sheet the gable end of the Dutch barn subject to agreed Tenant right terms and formal written approval.
6. The Landlord will grant the Tenant permission to take down the sandstone wall running at right angles to the road and to re-erect this beside the road to form a new entrance to the farmyard. This permission is subject to formal approval of the proposals and plans and the Tenant carrying out the work at his own expense with no compensation at the end of the tenancy".
Those were the six terms, and the letter concluded as follows:
"Enclosed with this letter are two copies of the Memorandum showing the agreed new rent based on £50 per acre of 56.049 acres, i.e. £2,800. I would be obliged if you could kindly sign both copies and attach one to your own Agreement and return the other to this office by Tuesday 14th April so that the Arbitrator can be informed that his services will no longer be required prior to the time limit for submission of Statements of Case being reached".
The enclosed memorandum was in the following terms, and was subsequently signed by both parties and dated 12th April 1981:
"In consideration of the Landlord and the within-mentioned holding undertaking not to refer to arbitration under section 8 of the Agricultural Holdings Act 1948, the question of the rent to be payable on the holding in respect of any period prior to the 25th day of March 1984 the tenant of the said holding agrees that:-
1. The rent payable in respect of the said holding (including all existing increases in respect of improvements or otherwise) shall as from the 25th day of March 1981 be £2,800 (Two Thousand Eight Hundred Pounds)….. which shall be payable in the same way as the rent of the said holding hereunder.
2. The Proviso for re-entry contained in the within-written agreement shall be exercisable in respect of non-payment of the said increased rent or any part thereof.
3. In consideration of the premises all the terms and conditions of the within-written Agreement varied as aforesaid shall remain in full force and effect".
The next event was a further meeting at the farm on 18th August 1981—that is to say, fairly shortly before the date of 1st September referred to in the letter—between Mr. Timmis and Mr. Witt. Mr. Witt made a memorandum, or attendance note, of that meeting, which the arbitrator had before him, but Mr. Timmis never saw it at the time. According to that memorandum, Mr. Timmis agreed that some of the work specified in the letter of 9th April should not be done, and there were various other matters discussed which were relevant to whether or not parts of the work would be done, and if so when and in what manner.
The next quarter day arrived and the Estate Rent Audit was on 8th October 1981. The rent not having been paid, a notice to pay within two months was served on the tenant on 2nd November 1981, requiring him to pay £1,429.08, being £1,400 as the half-yearly rent agreed in the letter which I have read, and the balance relating to grazing rights.
The tenant did not pay upon that notice, but on 17th December 1981 the tenant's solicitors sent a cheque for £654.07 post-dated to 31st December, which was subsequently dishonoured. Consequently the landlord gave notice to quit under Case D of section 2(3) of the Agricultural Holdings (Notices to Quit) Act 1977, on 8th January 1982. That notice was due to expire on 25th March 1983, in accordance with the Agricultural Holdings Act. On 27th January 1982 the tenant, as he was entitled, thereupon required arbitration on the notice to quit. The instalments of rent at the new rent of £2,800 per annum were then duly paid on 25th March and 29th September 1982, while the notice period was running.
On 5th November 1982 an arbitrator was appointed. He had before him Statements of Case lodged by the landlord and tenant in the usual way. The hearing took place on 5th January 1983 and the arbitrator made his Award on 25th January 1983. The main issue is whether or not that Award contains an error of law on its face, as the county court judge concluded, and I therefore turn to the Award.
It was made by Mr. Raymond George...
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