Sun Alliance and London Assurance Company Ltd v Hayman
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,MR JUSTICE MacKENNA |
| Judgment Date | 31 October 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J1031-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 October 1974 |
[1974] EWCA Civ J1031-2
In The Supreme Court of Judicature,
Court of Appeal.
(Appeal of Defendant from Order of His Honour Judge Lind-Smith, Warwick County Court, December 14, 1973.)
Lord Salmon (Not present)
Lord Justice Stephenson and
Mr Justice MacKenna.
MR A. PORTEN for MR A. DINKIN, (instructed by Messrs. Field & Co, of Lamington Spa) appeared on behalf of the Appellant (Defendant).
MR E. BAILEY for MR J. A. B. McLAREN, (instructed by Messrs, Russell Livingstone & Wood of Malvern, Worcester) appeared on behalf of the Respondents (Plaintiffs).
On 7th August, 1972, the respondent landlords purported to give the appellant tenant notice under the provisions of Section 25 of the Landlord and Tenant Act 1954 terminating her tenancy.
There is no dispute that the notice compiled with all the provisions of the section save one. It stated that the landlords would oppose an application for the grant of a new tenancy as required by Section 25 (6) of the Act, It was properly served on the tenant In compliance with Section 23 of the Landlord and Tenant Act 1927 as required by Section 66 (4) of the 1954 Act. But It required the tenant "within two months after receiving this notice to notify me in writing whether or not you will be willing to give up possession of the premises on" 25th March, 1973, and it referred to Note 2, which was in. these terms "Part II of the Act enables the tenant, on being served with a notice in this form, to apply to the court for an order for the grant of a new tenancy. Such an application, however, will not be entertained unless the tenant has within 2 months after receiving the notioe terminating the tenancy notified the landlord In writing that he will not be willing to give up possession of the premises on the date specified in the notice. The application must be made not less than two or more than 4 months after reoelot of the notice."
By Section 25 (1) and Section 66 (1); of the 1954 Act the landlords' notioe had to be given In the form prescribed by regulations made by the Lord Chancellor by Statutory Instrument, and that form was required by Section 66 (2) to "Include such an explanation of the relevant provisions of the Act as appears to the Lord Chancellor requisite for Informing persons (to beserved) of their rights and obligations under those provisions".
The most relevant provision of the Act was Section 29 (3), which reads No application under subsection of section twenty-four 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 notion under section twenty-five of this Act, as the case may be, after the making of the tenant's request for a new tenancy."
The landlords' notice was a print, filled In and corrected in some particulars Immaterial to this appeal, of Form 7 In the Appendix to the Landlord and Tenant {Notices) Regulations 1954 (S. I. 1954, No. 1107), made by the Lord Chancellor under Section 66. Regulation 4 provided that "the forms In the Appendix to these Regulations, or forms subs tan-tidally to the like effect, shall be used for the following purposes; that Is to say:- (vll) A notice under the provisions of Section 25 of the Act shall be In Form 7th.
Unfortunately, the 1954 Regulations were us longer In force at the date of the landlords' notice. They had been repealed and repeated by Statutory Instrument 1957, No. 1157; but Form 7 and Note 2 of the 1957 Regulations had been amended by Regulation 6 of Statutory Instrument 1967 No, 1831, which by Regulation 6 preserved from Invalidity any notice served before 1st January, 1968 which compelled with the requirements of the 1957 Regulations. The amended Form 7 and Note 2 wore prescribed by Regulation 3. of Statutory Instrument 1969 No. 1771, and at the date of the landlords' notice the prescribed form and note were In these terms "2 you required within two months after the giving of this notioe to notify me In writing whether or not you will be willing to give uppossession of the premises at that date." See Note 2, in these terms: "Part II of the Act enables the tenant, on being served with a notice in this form, to apply to the court for an order for the grant of a new tenancy. Such an application, however, will not be entertained unless the tenant has within months after the giving of the notice terminating the tenancy notified the landlord In writing that he will not be willing to give up possession of the premises on the date specified in the notice. The application must be made not less than 2 or more than four months after the giving of the notice."
The only question for the county court judge and for this court was concisely stated by him to be whether the notice In fact served upon the tenant was "substantially to the like effect" as the form of notice prescribed by the 1968 Regulations which were In force at the date of the service of the notice.
The tenant's contention is that it was not. The form of notice prescribed by the 1954 Regulations was, her counsel submits, not substantially to the like effect because It required her to give her counter-notice under Section 24 (1) (a) of the Act within two months after receiving the landlords notice, and warned her that her application for a new tenancy would not be entertained unless she notified the landlords of her objection to giving up possession within two months after receiving their notice, and that she must apply for a new tenancy not less than two nor more than four months after reoelot of the notice; whereas the notice should have stated that those times ran from the giving of the landlords' notice.
The 1967/69 wording of the Form of Notice brings It into, line with the wording of Section 29 (2) and (3)1, whereas the1954/57 wording departs from It, as was pointed out by this court In Price-v-West Lond Investment Building Society (1964 1 W. L. R. p. 616) and recognised by the Lord Chancellor ln his amendments made by Statutory Instrument 1967 No. 1831, But neither those amendments nor the decision in Price's case deter-mine the question posed by the tenant In this case. The importance of the answer which It reoelve la great. If the change back to the obsolete wording has produced a from of notice which la substantially to the like effect as the new wording, the landlords notice is good and the tenant cannot apply for a new tenancy because she is out of time If the effect of the old wording Is substantially different from the new, the notice is bad, the landlords must serve a fresh notice and she can apply for a new tenancy
Counsel for the tenant has rightly conceded that on the facts of this case there la no difference in time between the date when she was given notice and the date when she received it; and I think that counsel for the landlords conceded, rightly also, In my Judgment, that if the Judge held that he could take that fact into account in answering the question raised by the tenant, he was wrong. For, as It seems to me, what we have to do Is to construe the few relevant words In the Regulations and In the two forms of notice, and to decide whether In their ordinary significance the old words which were In fact used do mean substantially the same as the new words which should have been used. If they do not, then a notice In the old form is bad and cannot be validated because the particular tenant on whom It Is served is not prejudiced by any difference In their meaning.
Counsel for the tenant submitted that there was a real...
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