Signet Group Plc and C & J Clark Retail Properties Ltd
| Jurisdiction | Scotland |
| Judgment Date | 14 June 1996 |
| Date | 14 June 1996 |
| Docket Number | No 48 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Landlord and tenantLeaseTacit relocationNotice of termination sent originally by facsimileWhether actings constituted notice of terminationWhether notice given on 40th day before term date sufficient
The parties entered into a lease of shop premises which ran from 15 September 1973 until Whitsunday 1993. On 5 April 1993 a notice of termination of tenancy by the tenants was sent by facsimile message to the estates department or the landlords. The landlords refused to accept that the lease had come to an end and parties thereafter brought a special case to the Court of Session. The tenants argued that (a) as they had removed and ceased to trade from the premises in February 1993 without notice to the landlords, and the landlords had taken no steps to call on the tenants to occupy the premises and resume trading, this was a clear breach of clause 7 of the sublease which had required the tenants to occupy and trade from the premises throughout the whole period of the lease and the tenants' actings had been of such a character as to displace the inference of consensus at the ish; and (b) the facsimile notice of termination dated 5 April 1993 had been timeous in view of the termination date of 15 May 1993.
Held (1) that although informal communication that tenants intended to terminate the tenancy at the ish could displace tacit relocation, it was doubtful if actings alone would ever suffice; (2) that, in any event, the actings on which the tenants had relied were insufficient to constitute notice; and (3) that the facsimile message sent on the 40th day before 15 May 1993 was not timeous since 40 clear days' notice was required in terms of the law; and question answered accordingly.
Opinion reserved as to whether a misdescription of the subjects in the facsimile message had invalidated the notice.
Signet Group Plc and C & J Clark Retail Properties Limited brought a special case for the opinion and judgment of the Court of Session. The relevant averments are sufficiently set forth in the opinion of the court.
Cases referred to:
Craighall Cast-Stone Co Ltd v Wood BrothersSC 1931 SC 66
Gilchrist v WestronUNK (1889) 17 R 363
Kirkpatrick's Exx v G & A Kirkpatrick 1983 SLT 191
Lambert v SmithUNK (1864) 3 Macph 44
McIntyre v McNab's Trs (1831) 5 W&S 299
McLeod v George (1933) 49 ShCt Reports 302
Scott v RutherfordUNK (1839) 2 D 206
Smith v Grayton Estates LtdSC 1960 SC 349
Textbooks referred to:
Bell, Principles (10th edn), sec 1265
Craig, Jus Feudale, II ix 2
Erskine, Institute, II vi 46, II vi 47 and IV i 41
Rankine, Law of Leases (3rd edn), pp 560 and 597
Stair, Institutions, II ix 38
The Laws of Scotland: Stair Memorial Encyclopaedia, vol 22, para 819
The cause called before an Extra Division, comprising Lord Weir, Lord Rodger and Lord Cowie, for a hearing.
At advising, on 14 June 1996, the opinion of the court was delivered by Lord Weir.
Opinion of the CourtThis special case is concerned with a commercial sublease of shop premises in the centre of Dundee. The first party were lessees of the premises from the second party. The period of let was from and after the Fifteenth day of September Nineteen Hundred and Seventy Threeuntil Whitsunday Nineteen Hundred and Ninety Three. On 5 April 1993, solicitors for the first party (hereinafter referred to as the tenants) sent a notice of termination of tenancy by facsimile to the estates department of the second party (hereinafter referred to as the landlords). A further notice was sent on 6 April in order to correct certain inaccuracies in the description of the premises and of the landlords but for the purpose of this dispute it was common ground that the critical communication is that dated 5 April 1993. In this communication the solicitors stated: On the instructions of our clients Ratners Group Limited plc we serve formal notice of their intention to leave the premises at 2/6 Murray Gate, Dundee at the end of their Lease and that with effect from Whitsunday 1993.
By letter dated 22 April 1993 the landlords' solicitors wrote to the tenants' solicitors claiming that the notice of 5 April was invalid for two reasons: first, that in terms of sec 37 and Rule of Court 106 of the Sheriff Courts (Scotland) Act 1907 such notice had to be delivered by registered mail and service by facsimile message was incompetent; and, second, that the notice was in any event out of time. The first reason was not argued on behalf of the landlords before us...
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