E.W.P. Ltd v Moore
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BINGHAM,LORD JUSTICE NOLAN,LORD JUSTICE STAUGHTON |
| Judgment Date | 09 August 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0809-2 |
| Docket Number | 91/0849 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 August 1991 |
[1991] EWCA Civ J0809-2
Lord Justice Bingham
Lord Justice Staughton
Lord Justice Nolan
91/0849
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HAVERFORDWEST COUNTY COURT
(HIS HONOUR JUDGE MICHAEL EVANS Q.C.)
Royal Courts of Justice
MR T.L.G.CULLEN Q.C. and MISS F.PIRIE, instructed by Messrs Price & Son (Haverfordwest), appeared for the Appellant (Defendant).
MR J.R.GAUNT Q.C. and MR TIMOTHY EVANS, instructed by Messrs G.F.Lodder & Sons (Ellesmere), appeared for the Respondent (Plaintiff).
I will ask Lord Justice Nolan to give the first judgment.
By an agreement dated 8th April 1988 the plaintiff agreed to let a piece of land known as Scollock Bill to the defendant. In that agreement, Scollock Bill is referred to as "the Farm". It consists of about 120 acres of agricultural land. The letting was for a fixed term expressed to run from 1st January 1988 to 30th November 1989, that is to say for a period of 23 months.
The plaintiff claims, and the learned judge in the court below has held, that the tenancy came to an end by effluxion of time on 30th November 1989. The defendant maintains that his tenancy is a business tenancy which is protected by Part II Landlord and Tenant Act 1954, and that he is therefore entitled to remain in possession until his tenancy is validly determined by a notice to quit under that Act. It is common ground that no such notice has been served. The plaintiff's case is that the defendant's tenancy is not protected by the 1954 Act because it is a tenancy of an agricultural holding, and as such is excluded from protection by section 43(1) (a) of that Act.
An agricultural holding is defined by section 1(1) Agricultural Holdings Act 1986 (so far as material) as land "comprised in a contract of tenancy which is a contract for an agricultural tenancy". The crucial phrase for the purposes of the present appeal is the phrase "contract of tenancy". This is defined by section 1(5) (so far as material) as "a letting of land, or agreement for letting land, for a term of years or from year to year". It is common ground that the tenancy in the present case was not a tenancy from year to year. But was it a tenancy for a term of years? The plaintiff says "Yes". So did the learned judge. The defendant says, "No". If the defendant is right, then Scollock Bill is not an agricultural holding and, accordingly, the defendant's tenancy is not excluded from the protection of the 1954 Act but, on the contrary, qualifies for protection under that Act.
If the plaintiff and the judge are right, the curious result follows that the defendant's tenancy is not protected against termination by either the 1954 or the 1986 Act. The 1986 Act protects tenancies for a term of two years or more: see section 3. It also protects tenancies from year to year, a phrase which is extended by section 2(2) to cover, as a general rule, lettings for an interest less than a tenancy from year to year, and even licences. Tenancies for a period of between one and two years remain wholly unprotected. Tenancies from year to year have been protected against terminations save upon 12 months notice to quit since the enactment of section 33 Agircultural Holdings Act 1883 (though until 1920 the 12 months could be reduced to six by agreement). Tenancies for a term of two years or more have been protected from termination (in effect by treating them as tenancies from year to year once the contractual term has expired) since the enactment of section 13 Agriculture Act 1920. Section 28 of the same Act made 12 months the mandatory period for notice to quit, subject to certain exceptions. The phrase "contract of tenancy" was originally defined in section 61 of the 1883 Act as "a letting of or agreement for letting of land for a term of years, or for lives, or for lives and years, or from year to year". Section 40(1) Agricultural Act 1947 introduced the provision, now contained in section 2(2) of the 1986 Act, bringing lettings for an interest less than a tenancy from year to year and licences within the protection accorded to tenancies from year to year. Sections 31 and 32 of the 1947 Act introduced a number of restrictions on the landlord's right to serve a notice to quit, greatly increasing the tenants' security of tenure. The Agricultural Holdings Act 1948 (which, like the 1986 Act was primarily a consolidating Act but also made certain amendments to the law) altered the definition of "contract of tenancy" to exclude the reference to lettings for lives; see section 94(1). That was the state of the relevant law when the case of Gladstone v. Bower came before Diplock J. (as he then was) in 1959, and subsequently the Court of Appeal. The law remains the same today under the 1986 Act save for a further amendment which now appears as section 36(2) (b) of that Act.
The tenancy under consideration in Gladstone v. Bower was for 18 months. Plainly it did not qualify for the protection conferred on tenancies for two years or more by section 3 of the 1948 Act (the then current re-enactment of section 13 of the 1920 Act). The tenant argued however that the tenancy was for an interest less than a tenancy from year to year, and so was protected as a result of section 40(1) of the 1947 Act. The gist of the argument, shortly stated, was that since a tenancy from year to year was only terminable on 12 months notice dating from the end of the current year, it was bound in practice to last for at least two years, and therefore a contractual tenancy which could not last for more than 18 months amounted to a tenancy for a lesser interest. In the alternative, the tenant argued, as does the defendant in the present case, that his tenancy was protected by Part II of the Landlord and Tenant Act 1954, argued, in other words, that his tenancy agreement was neither a contract for a tenancy from year to year nor for a term of years, and so fell outside the scope of the Agricultural Holdings Act.
Diplock J. rejected both of these arguments. It would not be helpful to set out the grounds upon which he rejected the first argument since they are not directly relevant to the present case, but I would quote two passages from the first part of his judgment in which he referred to the situation of a tenancy for a term between one and two years. His judgment is reported at [1960] 1 Q.B. 170, and the first passage appears at page 174. It reads as follows:
"The fixed term of 18 months, which is unusual and, indeed, normally quite inappropriate for a farming tenancy, was admittedly chosen with the object of avoiding bestowing on the tenant the security of tenure which the Act confers on most tenants of agricultural holdings, but it is right that I should say—although it cannot affect the matter of construction which I have to determine—that the circumstances were unusual and it is not suggested that there was anything discreditable in the plaintiff's desire to achieve this object, if the law so permits. Whether he has done so is the sole matter which I have to decide."
Then after rejecting the argument that the 18 months tenancy was for a lesser interest than a tenancy from year to year, he referred to the comments of counsel for the tenant who had contended that such a result was contrary to the plain scheme of the Act, namely, that all occupiers of agricultural land, save those expressly excluded, should be entitled to remain in possession until their occupation was determined by a notice to quit. He said at page 179:
"If it were permissible to speculate at large as to the intentions of Parliament, I should be tempted to guess that Parliament simply overlooked the case of a lease for a fixed term of between one and two years. If it had considered such tenancies and thought that tenants thereunder should be given greater security of tenure, the obvious way to do so would be to amend…section 3 of the Act of 1948, by removing the restriction of its application to tenancies for a term of two years and upwards. But I cannot speculate as to Parliament's intention."
Turning to the alternative argument of the tenant, invoking the Landlord and Tenant Act 1954, Diplock J. said at page 180:
"Mr Cripps' alternative defence under Part II of the Landlord and Tenant Act, 1954, I can deal with shortly. Section 43(1)(a) expressly excludes from the provisions of Part II 'a tenancy of an agricultural holding'. By section 69 an 'agricultural holding' has the same meaning as in the Agricultural Holdings Act, 1948. This holding, being a holding of agricultural land comprised in the contract of tenancy for a term of years, is an agricultural holding in the meaning ascribed to it in section 1 of the Agricultural Holdings Act, 1948, and thus excluded from the operation of Part II of the Landlord and Tenant Act, 1954."
The decision of Diplock J. was upheld by the Court of Appeal, whose decision is reported at [1960] 2 Q.B. 384. In argument before the Court of Appeal, counsel for the tenant indicated that he had felt bound to concede at the hearing before Diplock J. that a tenancy for 18 months was a tenancy for a term of years within the meaning of the Act. At page 390 of the report Pearce L.J. said that:
"Both parties are agreed for the purposes of the case that (although the matter is not wholly free from doubt) this letting, being in excess of one year, comes within the definition of 'a term of years', and the judge dealt with the matter on that basis."
He went on to say at page 391 that:
"The Act in general gives protection to tenants of agricultural holdings. If the judge is right in holding...
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