Tredegar (Viscount) v Harwood

JurisdictionEngland & Wales
JudgeLord Blanesburgh,Lord Phillimore,Lord Shaw,Viscount Dunedin,.
Judgment Date25 July 1928
Judgment citation (vLex)[1928] UKHL J0725-3
Date25 July 1928
CourtHouse of Lords

[1928] UKHL J0725-3

House of Lords

Viscount Dunedin.

Lord Shaw.

Lord Phillimore.

Lord Blanesburgh.

Viscount Tredegar
and
Harwood and Others.

After hearing Counsel, as well on Thursday the 17th, as on Friday the 18th, days of May last, upon the Petition and Appeal of the Right Honourable Courtenay Charles Evan Viscount Tredegar, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 27th of October, 1927, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Annie Harwood and the Principality Building Society, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the the said Order of His Majesty's Court of Appeal, of the 27th day of October, 1927, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Tomlin, of the 1st day of June, 1927, thereby Reversed, be, and the same is hereby, Restored with a variation that the twenty-one days therein mentioned do run from the date of this Order instead of from the date of the said Judgment of the Honourable Mr. Justice Tomlin: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Court of Appeal, and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Chancery Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

Lord Blanesburgh .

My Lords,

1

The question in this case is a simple one. It is not, for that reason, easy. Tomlin J. thought the language of the clause in debate was plain, or, at any rate, reasonably plain. His decision was for the Appellant. The unanimous conclusion of the Court of Appeal on the other hand was in favour of the Respondents. Lawrence L.J. expressing a view, clearly enough shared by his two learned colleagues, observed in the course of his judgment

"I confess that but for the opinion expressed by the learned Judge and the arguments of counsel for [Lord Tredegar], I should have thought that the construction did not present any real difficulty."

2

My Lords, I regret that that divergence of judicial opinion has not yet entirely disappeared. But while I hope that I appreciate fully the considerations which have led your Lordships who have preceded me to revert to the view of Tomlin J. I feel bound to say with the utmost respect, that my own opinion remains in accord with that of the Court of Appeal.

3

I need hardly, I feel sure, affirm that in reaching that conclusion I in no way underrate either the reasonableness or wisdom from his own point of view of the Appellant's recent resolve to have effected in one office all the insurances upon his Cardiff leases. Nor, when I regard the services, clerical and otherwise, to be rendered to him in consideration by the Law Fire Office, do I doubt that the Appellant has chosen prudently in selecting that office as the favoured medium of insurance. I should equally commend his wisdom if, as a result of the tender of even more valuable services, the Appellant were, later on, to transfer his insurance favours to some other responsible office, say, for example, the Atlas. But it is not his prudence in either direction which is relevant now. The question is whether under the insurance covenant in the Respondent Mrs. Harwood's lease, Lord Tredegar can require her to insure in the Law Fire Office, to the exclusion, under all circumstances, of any other.

4

It must, I think, be agreed that that requirement of the Appellants is beset by at least some intial difficulty. There is a well known common form covenant which would indubitably have established the privilege he claims. It has not been utilized. The covenant chosen as the estate covenant, is an equally well known alternative style, to some extent it must be agreed—how much is here the question—more favourable to the lessee than the other. And when it is remembered that in a building estate to be developed largely by advances made by building societies and other lenders to the lessees a covenant convenient to the lenders may be of final advantage to the ground landlord the choice of this less stringent form of covenant may well have been deliberate. Certain it is that no such policy as that recently adopted by the Estate was in view when the covenant was selected.

5

The arrangement with the Law Fire Office which, having been come to, has, quite prudently led to the requirement now made by the Appellant is a new thing. But the covenant unaltered has been in use on the estate for many years, and throughout that period the view of it still taken by the Respondents has in practice been accepted and acted upon by the Appellant. As appears from the correspondence very many of the houses on the estate have been built with moneys advanced by the Respondent Building Society to lessees on the security of their leases and the Society, for reasons analogous to those now moving the Appellant, has always required its mortgagor lessees,—as in this case it required Mrs. Harwood,—to effect their insurances with the Atlas, which, as a responsible office, has been accepted by the Estate without question.

6

It may, of course, be suggested that this action on the part of the Appellant's representatives was no more than an indulgence which the Appellant was not concerned, as things stood, to withhold from his tenants. It is pertinent therefore to observe that in circumstances not unlike the present, the covenant would certainly be unequal to the burden the Appellant now seeks to place upon it.

7

Suppose, as has already been suggested, that the Appellant were to find it to his interest to have all these insurances effected with some office other than the Law Fire. It cannot, in that case, I think, be doubted that he would nevertheless be bound to accept as a complete performance in that behalf of the lessee's covenant, an insurance with the Law Fire, if tendered. Suppose again, that for some reason the Law Fire disappeared or were absorbed in some other office. The Appellant could not in that case require a lessee to insure in an office of his own nomination, for the privilege of nomination is not reserved to him. And if the Appellant desirous of confining insurances to one office were to disapprove of every other office as submitted to him however responsible or unobjectionable in every way some at all events of those submitted might be, that action on his part I cannot doubt would be held unwarranted on the well known principle explained and applied by Tindal, C.J. in Dallman v. King, 4 Bing. N.C. 105, 109, that the gist of the covenant being that the office selected by the lessee and tendered for approval should be responsible, to withold approval from every responsible office but one, and that for some reason entirely irrelevant to insurance protection, would go to the destruction of the thing granted which "according to the well-known rule, would pass, discharged from the condition."

8

My Lords, the alternative form of covenant which would have resolved all these questions in the Appellant's favour is a very simple one, and it will be found, with variations in detail in every standard Book of Precedents. By its terms the lessee covenants to insure

9

"in such insurance office as shall be named by the lessor," or "in such office as the lessor shall appoint. Indeed you have, in this very covenant, by apt words, power reserved to the Appellant, in case of default by the lessee, to realize his will in this matter He is thereby empowered"

10

"to insure the said premises … as [he] may think fit." The aptness, for the same purpose of the covenant exacted by the Respondent Building Society in Mrs. Harwood's mortgage of the 30th July, 1924, will not be missed. Thereby Mrs. Harwood covenants to

"insure and keep insured the said premises … in such office and for such amount as the Society shall appoint."

11

The contrast between the present covenant and any one of these alternatives is very striking. Under it, the lessee is, as I think in plain language, given the option of fulfilling his obligation in one of two ways either ( a) by insuring in the Law Fire, or ( b) in some other responsible insurance office to be approved by the lessor. The only preference enjoyed by the Law Fire Office is that it is a responsible office for which no further approval by the lessor is required. There is nothing in the covenant which either necessarily or naturally imports that the alternative is only exercisable if insurance in the Law Fire is impracticable. To introduce that qualification, some such words as "failing that office" would have to be added, and they are not there. The choice of the other office rests with the lessee: the approval only is with the lessor, not the selection; and the right of the lessor is limited to considering and approving or declining to approve the responsible office so chosen. It is here that the addition of the word "responsible" to the description of the office chosen for approval is so illuminating. Unless the name of a responsible office is tendered, the lessor need not consider the proposal at all. No step towards...

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