Shepherd v Lomas
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE HARMAN,LORD JUSTICE PEARSON |
| Judgment Date | 21 May 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0521-1 |
| Court | Court of Appeal |
| Date | 21 May 1963 |
[1963] EWCA Civ J0521-1
In The Supreme Court of Judicature
Court of Appeal
From his Honour Judge Addleshaw
Congleton County Court.
The Master of the Rolls
(Lord Denning)
Lord Justice Harman and
Lord Justice Pearson
MR L. A. BLUNDELL, Q. C. and MR C. PRIDAY (instructed by Messrs Warmington & Co., Agents for Messrs H. p. & H. C. Rigby, Sandbach, Cheshire) appeared as Counsel for the Appellants.
MR p. G. LANGDON-DAVIES (instructed by Messrs Bowcock & Pursaill, Leek, Staffs) appeared as Counsel for the Respondents.
This case relates to an agricultural holding which is situated at Overton Hall, Biddulph, in Staffordshire. The farm was let to Mr. Lomas as long ago as 1941. There was a clause in the tenancy agreement under which the tenant agreed on his part "to keep all roads hedges fences walls gates gateposts bridges ditches drains and watercourses in good and tenantable repair and condition and so leave the same at the and of the tenancy, the landlord providing the tenant with timber and other material in the rough for the repair of gates and fences and rubble stone for walls". And there was a separate covenant by the landlords "to provide timber in the rough for the repair gates and fences and rubble stone for the repair of walls".
On the 13th September, 1961, the landlords served on Mr. Lomas a notice to remedy breaches. The notice said: We hereby give you notice that we require you to remedy within the period of six months from the date of service of this notice the breaches whereof particulars are set out below of the terms or conditions of your tenancy of the holding known as Overton Hall Farm and situate at Biddulph in the County of Stafford, which you hold of us as tenant being breaches which are capable of being remedied of terms or conditions which are not inconsistent with your responsibilities to form the said holding in accordance with the rules of good husbandry". Then there follow 30 breaches which are alleged against the tenant. They fall into two groups: (1) One group concerned hedging and ditching and clearing. The landlord did not have to provide any materials for this work. The tenant, of course, had to do it with his own labour, (2) The other group of breaches concerned ten making good of gates and fences. Those require quite a lot of material and the landlord was under an obligation to provide it. That notice was served on 13th September, 196l. So the six months would expire on 13th March, 1962.
A fortnight later, on the 29th September, 196l, thetenant's solicitors replied: "We also acknowledge receipt of copy notice to remedy defects which we have discussed with our client. Our client is naturally willing to performing those parts of the tenancy agreement which are duo to be performed by him, and will therefore remedy those defects which he is bound to remedy, but with the exception of those relating to the clearance of the gorse and the bushes, the tenant is not in a position to remedy them until the landlord observes his part of the agreement". It is quite plain that the solicitors there, on reading the notice, were saying this: "Our client will get on with the work for which materials are not required but he cannot do the other work until the landlord provides the materials' In that letter and later letters the tenant's solicitors requested the landlords to provide the materials, namely, the timber for the repair of the gates and fences, but the landlords did not comply with the request. The letters of the tenant's solicitors, were left unanswered for weeks. No satisfaction was obtained. The materials were not supplied until the 5th March, 1962, just a week before the six months' notice was duo to expire.
The six months' notice expired on 13th March, 1962. Nine days later, on 22nd March, 1962, the landlords served on the tenant a year's notice to quit, to expire on 25th March, 1963. They claimed that they were entitled so to do by reason of Section 24(2)(d) of the Agricultural Holdings Act, 1948, which enables a landlord to serve notice to quit (without obtaining the consent of the Agricultural Land Tribunal) where "at the date of the giving of the notice to quit the tenant had failed to comply with a notice in writing served on him by the landlord requiring him…. Within a reasonable time or within such reasonable period as was specified in the notice to remedy any breach by the tenant that was capable of being remedied of any term or condition of his tenancy which was not inconsistent with the fulfillment of his responsibilities to farm in accordance with the rulesof good husbandry, and it is stated in the notice to quit that it is given by reason of the matter aforesaid".
The tenant disputed the validity of the notice to quit. He said that it was bad because the notice to remedy broaches was bad. The period specified in the notice was not a "reasonable period". Alternatively, the tenant was discharged by the landlord's failure to provide the materials, The tenant served a counter notice: and the matter went, in accordance with the statutory provision, to an arbitrator, who has stated a case for the opinion of the Court.
The Arbitrator made this finding: "I find that the tenant did not comply with the requirements of the notice in that only a few of the breaches referred to in the notice were remedied within the period specified therein and I further find that the period of time specified in the notice was reasonable in respect of the breaches for the remedy of which the landlords were not required to supply any materials and was unreasonable with regard to those for the remedy of which the landlords were liable to provide materials". We have had a good deal of argument as to the true construction of that finding. We have been referred to the Statements of Case which the landlord and the tenant put in, to the contentions recorded in the Stated Case, and to the correspondence which passed between the solicitors. After considering them all, I think the true interpretation of this finding of the arbitrator is that six months was reasonable in respect, of the first group (where no materials were required), and that six months would also have been reasonable in respect of the second group (where materials were required), provided always that the landlord did his part and supplied the materials. But that, in the events that happened, the period turned out to be unreasonable for the second group because of the landlord's failure to provide the materials.
So interpreting the finding, I do not think that thenotice to remedy breaches was void ab initio?" It was good in the beginning because six months was reasonable for all the breaches, not only the first group but also the second group, seeing that it could fairly be assumed that the landlord would do his part and fulfill his covenant to provide the materials. So the answer to the first question: "Was the notice void ab initio?" is: "No".
The second question was this: Slaving regard to my findings, does the tenant's failure to comply with the requirements for which the period specified was reasonable constitute a failure to comply with the notice for the purpose of Section 2l(2)(d) of the Agricultural Holdings Act, 1948?" Put in other words, it comes to this: assuming the notice was good in the beginning because a reasonable period was specified, how does it stand now that it turns out that in regard to the second group of breaches the ten-ant is excused from doing those within the time because of the landlord's own failure to provide materials? Does it mean that the landlord cannot rely on the notice? This is a difficult question. It depends on whether the notice can be split up. The landlord has specified in the notice some breaches which in the result he cannot rely upon, but there are others which he can rely on. Does this make the whole notice bad? To answer this question I would draw an analogy from the cases on Section 146 of the Law of Property Act, 1925, (which bears a close resemblance to Section 24(2)(d)) particularly Pannell's case in 1900, 1 Chancery, p. 496, ar. Fox v. Jolly in 1916, 1 Appeal Cases, p. 15. It is quite plain that, even though a notice under Section 146 specifies some matters which cannot be relied upon as breaches, nevertheless that does not disentitle the landlord from relying on the rest of the notice. So also it seems to me that, under this Agricultural Holdings Act, even though some of the matters that are specified in the notice turn out not to be breaches, or the tenant afterwards is excused fromperfo rming some of them, the landlord is still entitled to rely on the others. It follows that in this case, although the tenant was excused from remedying the second group of breaches (because the landlords did not provide materials) nevertheless he ought...
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Wykes v Davis
...the work. It does not appear that the question whether this circumstance might have invalidated the entire notice was canvassed. In Shepherd -v- Lomas {1963 1 W.L,R. p. 962) Lord Justice Harmon (at p. 974) referred to this part of Mr. Justice Diplock judgment, pointing out that If the argum......
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William Mowat Alexander V. The Royal Hotel (caithness) Ltd Per R. Taylor
...distinction was not explored. [58]The approach that I take to this question is, I think, consistent with cases such as Shepherd v Lomas ([1963] 1 WLR 962). That was a case under the corresponding English provision where the notice to quit was based on the tenant's breach of a demand to reme......
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Kenneth Peter Sowden v Stephen Charles Smyth-Tyrrell and Another
...They rely on Parrish v Kinsey [1983] 2 EGLR 13, CA (Watkins, May LJJ), which refers to an earlier decision of the Court of Appeal in Shepherd v Lomas [1963] 1 WLR 962. That was a case where the tenant failed to comply with a notice to repair, with part of which he was unable to comply as th......