Terence Francis Grimes v The Trustees of The Essex Farmers and Union Hunt
| Jurisdiction | England & Wales |
| Judge | Lord Justice Henderson,Lady Justice Macur,Lord Justice Beatson |
| Judgment Date | 19 May 2017 |
| Neutral Citation | [2017] EWCA Civ 361 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 May 2017 |
| Docket Number | Case No: B2/2015/3341 |
[2017] EWCA Civ 361
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CHELMSFORD
HHJ MOLONEY QC
Lower Court Case No: A00CM008
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Beatson
Lady Justice Macur
and
Lord Justice Henderson
Case No: B2/2015/3341
Mr Leslie Blohm QC and Mr Christopher Jones (instructed by Roythornes Ltd) for the Appellant
Mr David Holland QC and Mr Jamal Demachkie (instructed by Tolhurst Fisher LLP) for the Respondents
Hearing date: 28 March 2017
Approved Judgment
Introduction
The main issue on this appeal is whether notice to quit an agricultural holding was validly served on the tenant, Mr Terence Grimes, by his landlords, the Trustees of the Essex Farmers and Union Hunt ("the Trustees" and "the Hunt"). This issue turns on the true construction of a clause in the tenancy agreement, which provided that:
"Either party may serve any notice (including any notice in proceedings) on the other at the address given in the Particulars [ at the beginning of the tenancy agreement] or such other address as has previously been notified in writing."
The question, in short, is whether it was still open to the Trustees, in July 2011, to serve the notice to quit, as the judge found that they did, at the tenant's address shown in the Particulars, even though he had moved from that address nearly six years before, and (as the judge also found) he had given notice of his change of address to the Trustees by a written note dated December 2006 enclosing a cheque for the quarter's rent.
The judge (His Honour Judge Moloney QC, sitting in the County Court at Chelmsford) decided this question in favour of the Trustees by his judgment and order dated 25 October 2015, after a three day trial. Mr Grimes now appeals to this court, with permission granted by Kitchin LJ on 18 December 2015.
If Mr Grimes' appeal on the question of construction succeeds, the Trustees contend by their respondent's notice that the judge erred in finding as a fact that the December 2006 note was sent to and received by the Trustees, with the consequence that no valid notice of his new address had been given by Mr Grimes to the Trustees before the notice to quit was served at his old address shown in the Particulars.
Background facts
The relevant background facts may be briefly stated.
The agricultural holding ("the Holding") is at Althorne Lodge, Althorne, near Burnham-on-Crouch, in Essex. It extends to some 121 acres. It does not include a farmhouse or any major farm buildings.
Mr Grimes, and his father before him, had for many years prior to 2006 farmed the Holding as tenants of the Hunt under a succession of tenancy agreements. Mr Grimes' dealings with the Hunt were mainly with its chairman and former joint master, Mr Melvyn Clarke. Mr Clarke is a qualified accountant, now in his late sixties, who has had an extensive and varied business career. The Hunt itself has now become a country riding club. Many years ago, its members bought the Holding, and it is held on their behalf by the Trustees. The rent from the Holding helps to cover the Hunt's running costs.
At all material times until October 2005, Mr Grimes lived at 24 Glebe Way, Burnham-on-Crouch. He then moved to 44 Maple Way in the same town, which remains his address today.
In 2005 Mr Clarke and Mr Grimes discussed the renewal of Mr Grimes' tenancy of the Holding. The negotiations took some time, and Mr Grimes had professional assistance from an adviser, Mr Faulkner, who was a surveyor based in Hertfordshire. Eventually, agreement was reached in principle that the new term should run for six years from 1 October 2006. A lease of that length could only be granted by deed, which would have required execution by all of the Trustees. This would have presented practical difficulties and probably led to further delay, but Mr Clarke was advised that a tenancy agreement for three years or less could be granted by a written agreement signed by him on behalf of the Trustees. After further discussion involving the parties' solicitors and Mr Faulkner, it was agreed that two consecutive tenancy agreements would be entered into, the first running from 1 October 2006 until 29 September 2009, and the second from 30 September 2009 until 30 September 2012. The terms of the two agreements were otherwise intended to be identical, save that the rent would be £7,500 per annum under the first agreement and £8,500 per annum under the second. This expedient was therefore adopted, and both agreements were signed by Mr Clarke on behalf of the Trustees on 16 November 2006, although the second agreement was expressed to be made on 16 November 2009.
No point has been taken by either side about the validity of the two tenancy agreements, and I therefore proceed on the footing that the legal relationship between the parties was governed by the terms of the first agreement until 30 September 2009, and thereafter by the terms of the second agreement until 30 September 2012.
Each agreement was prefaced by a page of Particulars which identified the Landlord as "Essex Farmers & Union Hunt of Althorne Lodge, Althorne, Essex" and the Tenant as "T Grimes Esq. of 24 Glebe Way, Burnham-on-Crouch, Essex CM0 8QJ". This address was shown for Mr Grimes in the Particulars even though he had moved from 24 Glebe Way to 44 Maple Way in October 2005, over a year before the agreements were finally signed.
Each agreement provided for the Holding to be let by the Landlord to the Tenant for the fixed term which I have mentioned, "and then from year to year" unless the agreement was ended under clause 11. By virtue of clause 11.1, either party could bring the agreement to an end at the end of the Term "by giving to the other at least twelve but less than twenty-four months' notice in writing expiring on the Last Day of the Term". The annual rent was payable quarterly, on 29 December, 25 March, 25 June and 29 September in each year. Clause 1.1 provided that the expressions "the Landlord" and "the Tenant" should include, respectively, the person who, at any particular time, was entitled to receive the rent payable under the agreement, or who had the right to occupy the Holding on the terms of the agreement.
Clause 14 of each agreement was headed "Additional Matters", and provided as follows:
"14.1 The rules relating to the service or [ sic] notices contained in Section 36 of the Agricultural Tenancies Act 1995 apply to any notice given under this Agreement so that any notice can be given to a person by delivering it to him or leaving it at his proper address or sending it to him at his proper address by any recorded delivery service. No notice given by fax or any other electronic means will be valid unless a copy of the notice is also sent by post or delivered to the proper address of the recipient within seven days.
14.2 Either party may serve any notice (including any notice in proceedings) on the other at the address given in the Particulars or such other address as has previously been notified in writing.
…
14.4 This Agreement contains the whole agreement between the Landlord and the Tenant concerning the Holding …"
The first rental payment under the 2006 agreement fell due on 29 December 2006. It is common ground that Mr Grimes paid this rent by a cheque which was received by Mr Clarke and duly credited to the relevant bank account. It was Mr Grimes' evidence that he sent the cheque to Mr Clarke under cover of a handwritten note in the following terms:
"Dec '06
Mervyn,
Rent cheque enclosed for Oct Nov Dec
As mentioned on phone, new address and telephone numbers are:
44 Maple Way
Burnham-on-Crouch
Essex CM0 8DW
[ his landline and mobile telephone numbers were also set out]"
As to the telephone conversation referred to in the note, Mr Grimes said in his witness statement:
"In late October 2006 Mr Clarke phoned me to say he had received the signed agreements and that everything was in order. During this conversation, I reminded Mr Clarke once more that I had moved to 44 Maple Way in case he needed to get in touch with me or needed to come and see me. Mr Clarke acknowledged this and asked me to provide him with written confirmation."
For his part, Mr Clarke said he had no recollection of receiving the note, and maintained that he was never informed of Mr Grimes' new address, by telephone or otherwise. The judge resolved this conflict of evidence in favour of Mr Grimes, finding (as I have said) that the December 2006 note was received by Mr Clarke.
On 1 July 2011 Mr Clarke delivered by hand a letter addressed to Mr Grimes at 24 Glebe Way. The letter said:
"Dear Terry,
I have been trying to contact you by 'phone and I sent you a postcard asking you to call but I have not heard from you. (You may be on holiday). I am therefore delivering you this letter by hand delivery to your home. I would ask you please to call me as soon as possible.
Your lease is due to expire on 30 September 2012 as I am sure you know. Whilst (without prejudice) the Hunt would be willing to negotiate new terms with you, I am obliged under the lease to give you formal notice of termination of the lease as at 30 September 2012. I believe clause 11 deals with this.
There are a number of reasons behind the termination, but the main reason is because rents are now much higher than the rent you are paying. Thus in the best interests of the Hunt (and in fairness) a new rent and terms must be negotiated.
Please can you contact me as soon as possible."
This was the letter relied on by the Trustees as being a valid notice to quit the Holding which terminated the second tenancy on 30 September 2012. Among the issues...
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