Troop and another v Gibson and another
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE PURCHAS,LORD JUSTICE RALPH GIBSON |
| Judgment Date | 19 December 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J1219-7 |
| Docket Number | 85/0872 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 1985 |
[1985] EWCA Civ J1219-7
The President
(Sir John Arnold)
Lord Justice Purchas
and
Lord Justice Ralph Gibson
85/0872
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
On Appeal from Worksop County Court
Royal Courts of Justice,
MR. H.W. BURNETT, Q.C. and MR. A. de FREITAS, instructed by Messrs. Hayes Son & Richmond (Gainsborough) appeared for the Appellants (Defendants).
MR. D. WOOD, Q.C. and MR. W. CLARK, instructed by Messrs. Burges Salmon & Co., appeared for the Respondents (Plaintiffs).
This is an appeal from an order made in the Worksop County Court by His Honour Judge Kellock on the 5th November 1984.
The learned judge had before him a special case stated by Mr. G.M. Cooper for the opinion of the County Court. The case was stated under the Agricultural Holdings Act 1948 and raised a number of questions relating to the tenancy of a holding known as Manor Farm, Harwell Everton, Nottinghamshire, The relevant history of this holding is the following. By an agreement dated 28th February 1923 and made between Albert Smith Denton of the one part and Joseph Gibson of the other part the holding was let on a tenancy which commenced on 6th April 1923 and was made terminable by either party giving to the other not less than six calendar months notice to expire on 6th April in any year. The rent was £100 for the first and second years of the tenancy and £130 for the third and following years and it was provided that the tenant (Joseph Gibson) should reside upon the holding and not part with the possession of any part thereof without the written consent of the landlord (Albert Smith Denton), the sub-letting of the cottages on the holding for short periods being excepted. In the year 1938 the gates and the roof of a shed on the holding were in disrepair and the matter was mentioned by Joseph Gibson to Messrs. Henry Spencer and Sons the landlord's agents and by a letter dated 8th November 1938 the agents wrote to Joseph Gibson reporting on the result of their approach to the landlord's solicitors. This letter refers to the agreement of the 28th February 1923 and quotes therefrom an extract of the repair obligations. Joseph Gibson had three sons and some time in or before the year 1939 two of them Walter Gibson and Herbert Gibson were taken into partnership by their father in the farming business carried on by him on the holding. By an agreement endorsed on the tenancy agreement of the 28th February 1923, it was agreed between Harry Arbuthnott Spencer described as the landlord, and Joseph Gibson, described as the tenant that as and from the 6th April 1939 Messrs. Walter Gibson and Herbert Gibson were to be joint tenants with their father. This agreement was drafted in such a way as to provide for the signatures of Walter Gibson and Herbert Gibson to be added but it was not signed by them but only by Harry Arbuthnott Spencer and Joseph Gibson. It is however in my view entirely clear that the endorsed agreement constituted a written consent of the landlord to an assignment by Joseph Gibson to himself and Walter Gibson and Herbert Gibson for the purposes of the tenancy agreement.
By a memorandum of agreement dated 27th January 1940 between Joseph Gibson, Walter Gibson and Herbert Gibson it was recited that the holding was held by Joseph Gibson as tenant and that the parties had for some time past been carrying on the farming business on the holding in partnership. This appears to me to provide convincing evidence that there had by the 27th January 1940 been no devolution of the tenancy from Joseph Gibson to the three partners.
On the 26th November 1946 there was an appointment of Tom Shearman as arbitrator under the provisions of the Agricultural Holdings Act 1923 and the Arbitration Acts 1889–1934 to determine and award the amount of rent to be paid as and from the 6th April 1947 in respect of the holding and this was signed by Willie Ward, evidently as landlord and Joseph, Walter and Herbert Gibson evidently as tenants and an award was made by Tom Shearman on the 10th February 1948 determining the annual rental as from the 6th April 1947 at £108.
It is evident from the transactions in 1946 to 1948 that the tenants had by this time come to be Joseph, Walter and Herbert Gibson and the matter was considered by the learned judge in his judgment and he concluded that there was in the course of these transactions a representation to the landlord that Joseph Gibson and his two sons were joint tenants on the original terms contained in the tenancy agreement of 28th February 1923 and that all parties proceeded on this basis. There has been some argument in this court as to the proper inference to be drawn from the events of 1946 to 1948 as to the devolution of the tenancy down to that time. In view of the endorsed agreement of the 6th May 1939 my view is that there must have been an assignment of the tenancy from Joseph Gibson to himself and Walter Gibson and Herbert Gibson at some time after the 6th May 1939 and before the 26th November 1946, and not earlier than the 27th January 1940. I am therefore in agreement with the learned judge in concluding that Joseph, Walter and Herbert Gibson held the farm in 1946 on the terms set out in the tenancy agreement of 28th February 1923.
Provision was made by section 8 of the Agricultural Holdings Act 1948 for arbitration of the question what rent should be payable in respect of an agricultural holding as from the next ensuing day on which the tenancy of the holding could have been determined by notice to quit and on reference the arbitrator was to determine what rent should be payable. This section was amended by the Agricultural Act 1958 by section 2 of which there was inserted in section 8 of the Agricultural Holdings Act 1948 a provision that the rent properly payable in respect of an agricultural holding should be the rent at which having regard to the terms of the tenancy (other than those relating to rent) the holding might reasonably be expected to be let in the open market by a willing landlord to a willing tenant. This amendment was effective from the 1st August 1958. There was a rent arbitration as to this holding in 1970 between the executors of Willie Ward deceased as landlord and Messrs. Gibson and Sons, i.e. the partners Walter and Herbert Gibson, as tenants in which Messrs. Shearmans acted as agents for the landlord. The arbitration hearing took place on the 29th April 1970 and Messrs. Shearmans in their statement of case on behalf of the landlord included under the heading "Facts" the statement "Tenancy Agreement believed none". This belief appears to have been shared by the tenants and constituted the basis on which the arbitration proceeded. The amendment effected in 1958 to the Agricultural Holdings Act 1948 being in operation, it was of course a matter of importance in the rent arbitration that any terms of the tenancy, other than in relation to rent, should have been known to the arbitrator and the events of 1970 suggest that by this time both landlord and tenant proceeded on the basis that there were no special terms applicable to the tenancy of the holding.
The letter dated 8th November 1938 from Henry Spencer and Sons to Joseph Gibson had evidently been retained by the latter and on the 14th January 1971 Messrs. Clay Allison & Clark, solicitors acting for the partnership, wrote to Henry Spencer and Sons that their clients were anxious to get hold of a copy of the original tenancy agreement, if one were available and referred to the fact that Mr. Gibson had brought to them the letter dated 8th November 1938 "which refers to the tenancy agreement being in the hands of the trustees' solicitors of Albert Smith Denton, deceased". Henry Spencer and Sons referred the Gibsons' solicitors to solicitors Messrs. Broomhead Pye-Smith & Reed who had acted for the Smith Denton trustees and the Gibsons' solicitors made enquiry of them, stating in a letter dated 18th January 1971 "we are anxious to get hold of a copy of the tenancy agreement as our clients have lost theirs and there is a possible sale of the farm to be made shortly and they wish to refer to this agreement." There was no result from this correspondence such as to produce the missing tenancy agreement. The present landlords, the respondents to this appeal, purchased the holding in 1971 and on the 16th March 1972 their solicitors wrote to the Gibsons' solicitors, "We are instructed by our clients that they have agreed with Mr.Gibson that there should be a written tenancy agreement to commence on 6th April next" enclosing a draft for approval. This draft consisted of a printed form which included a provision "the tenant shall not without the written consent of the landlord during his tenancy assign under-let or part with the possession of the said messuage, farm buildings, cottages, land and premises or any part thereof and shall reside in the farmhouse". On the 22nd March 1972 the landlord's agents wrote to Herbert Gibson, by then the sole survivor of the partners, demanding a reference to arbitration of the rent payable from the next ensuing day on which the tenancy could be terminated by notice to quit. On the 29th March 1972 Herbert Gibson's solicitors wrote to the landlord's solicitors that they had taken their client's instructions on the draft tenancy agreement which had been submitted and returned it amended and, after referring to the notice of reference to arbitration received by Herbert Gibson, enquiry was made whether it was worthwhile postponing the making of a fresh tenancy agreement until the following year and by a letter dated 11th April 1972 the landlord's...
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