Terence James Macey v Pizza Express (Restaurants) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Marcus Smith |
| Judgment Date | 29 October 2021 |
| Neutral Citation | [2021] EWHC 2847 (Ch) |
| Docket Number | Claim No: GO0EX153 |
| Court | Chancery Division |
[2021] EWHC 2847 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
CHANCERY APPEALS (ChD)
On appeal from the order of His Honour Judge Gore, QC, dated 17 February 2021
County Court at Exeter
Sitting at:
Bristol Civil Justice Centre
2 Redcliff Street
Bristol BS1 6GR
THE HONOURABLE Mr Justice Marcus Smith
Claim No: GO0EX153
Appeal ref 11BS023C
Mr Richard Fowler and Mr Joseph Bunting (instructed by the Appellant) appeared for the Appellant
Mr Wayne Clark (instructed by Lewis Silkin LLP) appeared for the Respondent
Hearing dates: 13 and 14 October 2021
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
A. INTRODUCTION
. The Respondent to this appeal, Pizza Express (Restaurants) Limited ( Pizza Express) occupies premises at 2 Broadgate, Cathedral Yard, Exeter (the Premises). It did so pursuant to a 25-year lease dated 22 August 1995 (the Lease). Mr Macey, the Appellant, is the landlord according to the terms of the Lease.
. The term of the Lease expired on 22 August 2020, but continues on the same terms pursuant to Part II of the Landlord and Tenant Act 1954 (the 1954 Act).
. By a notice dated 8 April 2020, and served under section 25 of the 1954 Act, Mr Macey sought to terminate the tenancy, with effect from 22 October 2020. By the same notice, Mr Macey opposed the grant of a new tenancy, relying upon section 30(1)(g) of the 1954 Act.
. Section 30(1) sets out various grounds on which a landlord may oppose the grant of a new tenancy. It is appropriate to set out, not only section 30(1)(g) (on which Mr Macey relied), but also section 30(1)(f) (on which Mr Macey did not rely, but which contains a reference to intention which is common to both sections 30(1)(f) and 30(1)(g)). Essentially, the non-continuation of a lease may be justified on grounds:
“…
(f) that on the termination of the current tenancy the landlord intends to demolish or reconstruct the premises comprised in the holding or a substantial part of those premises or to carry out substantial work of construction on the holding or part thereof and that he could not reasonably do so without obtaining possession of the holding;
(g) subject as hereinafter provided, that on the termination of the current tenancy the landlord intends to occupy the holding for the purposes, or partly for the purposes, of a business to be carried on by him therein, or as his residence…”
. By an order of Deputy District Judge Berrett dated 20 July 2020, it was ordered that the trial of the issue as to whether section 30(1)(g) was satisfied be tried as a preliminary issue. The hearing of this preliminary issue came before His Honour Judge Gore, QC on 16 and 17 December 2020. The Judge heard argument and evidence from two witnesses, Mr Macey himself and a Ms Carbone, a surveyor and Pizza Express' head of estates. In a reserved judgment (the Judgment) dated 17 February 2021, the Judge determined the preliminary issue against Mr Macey. His order — of the same date — reflected this outcome, and (amongst other things) ordered that Mr Macey pay Pizza Express' costs (the Order).
. Mr Macey seeks to appeal the Order, and he does so with the permission of Henshaw J. The grounds of appeal are somewhat discursive, running to some 12 pages. However, counsel for Mr Macey helpfully distilled the grounds of appeal into six grounds of appeal (Grounds A to F) in Mr Macey's written submissions on appeal, and it was these very helpful submissions that formed the structure on which the parties' submissions were made. Additionally, in a Respondent's Notice, Pizza Express contended that the Order and the Judgment could be upheld on other grounds.
. It is helpful if I begin with an articulation of the law in this area. The points arising out of the grounds of appeal cannot really be understood without a clear statement of the relevant legal principles, which I set out in Section B below. I should say at once that my exposition of the law is significantly more detailed than that of the Judge. No criticism is intended by this. The fact is that the Judge had before him a series of agreed propositions of law, which (quite rightly) he used as the basis for the Judgment.
. Since, however, the grounds of appeal, to an extent at least, contend that the Judge misapplied these principles, it is necessary to articulate them.
B. THE LAW
. The question central to the preliminary issue — and so to this appeal — is whether Mr Macey held the requisite intention. In the case of section 30(1)(g), that intention must be to occupy the Premises for the purposes, or partly for the purposes, of a business to be carried on by him therein, or as his residence. In the case of section 30(1)(f), that intention must be to demolish or reconstruct the Premises. (As I say, Mr Macey did not rely on section 30(1)(f).)
. In terms of what is intended, sections 30(1)(f) and 30(1)(g) are poles apart. But the nature of what is the landlord's intention must be the same in each, and neither party sought to contend otherwise before me. It is therefore right to have regard to authorities relating to both section 30(1)(f) and section 30(1)(g).
. The following propositions represent the material law:
(1) Intention is a common English word, to be given its ordinary and natural meaning. 1
(2) Intention means more than merely contemplating that a course of action or bringing about a certain state of affairs might be desirable. In Cunliffe v. Goodman, 2 Asquith LJ spoke of a project moving “out of the zone of contemplation — out of the sphere of the tentative, the provisional and the exploratory — into the valley of decision”. That is a nice articulation of the borderline, but Asquith LJ also gave a fuller and more nuanced consideration earlier on in his judgment: 3
“The question to be answered is whether the defendant (on whom the onus lies) has proved that the plaintiff, on November 30, 1945 “intended” to pull down the premises on this site. This question is in my view one of fact. If the plaintiff did no more than entertain the idea of this demolition, if she got no further than to contemplate it as a (perhaps attractive) possibility, then one would have to say (and it matters not which way it is put) either that there was no evidence of a positive “intention”, or that the word “intention” was incapable as a matter of construction of applying to anything so tentative, and so indefinite. An “intention” to my mind connotes a state of affairs which the party “intending” — I will call
him X — does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition.X cannot, with any due regard to the English language, be said to “intend” a result which is wholly beyond the control of his will. He cannot “intend” that it shall be a fine day tomorrow: at most he can hope or desire or pray that it will. Nor, short of this, can X be said to “intend” a particular result if its occurrence, though it may be not wholly uninfluenced by X's will, is dependent on so many other influences, accidents and cross-currents of circumstance that, not merely is it quite likely not to be achieved at all, but, if it is achieved, X's volition will have been no more than a minor agency collaborating with, or not thwarted by, the factors which predominately determine its occurrence. If there is a sufficiently formidable succession offences to be surmounted before the result at which X aims can be achieved, it may well be unmeaning to say that X “intended” that result.”
Thus:
(a) The question of intention is one of fact.
(b) Intention involves a decision in the landlord to bring about a certain state of affairs. That decision may not be tentative or indefinite, but — to use the language of later cases — must be “a firm and settled intention”. 4 I shall — as did the parties before me — refer to this as the “subjective” element or “subjective” intention.
(c) Although it might be said that intention is entirely subjective, it is quite clear from Asquith LJ's judgment that it has what may be called an “objective” element. As Asquith LJ noted, one cannot intend a result wholly beyond the control of one's will. Although I shall — as the parties did before me — refer to this as an “objective” element or “objective” intention, it is really no more than an expression of the fact that, in order for an intention to be rationally held, it must be capable of achievement. Whilst an intention may be thwarted by circumstance but be an intention nonetheless, an intention to bring about a state of affairs must be rooted in reality.
(d) For that reason, it goes too far to treat the requirement of “intention” to oblige a landlord to undertake — in the sense of actually actioning — all of the steps necessary to realise his or her intention. That would amount to a requirement that there be a realised intention or an intention in fact executed to the extent of the landlord's ability. This was stressed in Betty's Café v. Phillips, where it was noted that the language of intention could not: 5
“…be treated as having (in effect) substituted for the word “intends” in paragraph (f) (as in paragraph (g)) of the section the words “is ready and able” so as to impose upon the landlord the onus of proving that, at whatever be the proper date, he has not only finally determined upon the course proposed but has also taken all necessary steps for the satisfaction of any...
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