West Layton Ltd v Ford
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE ROSKILL,LORD JUSTICE LAWTON |
| Judgment Date | 12 February 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0212-4 |
| Date | 12 February 1979 |
| Court | Court of Appeal (Civil Division) |
[1979] EWCA Civ J0212-4
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(On Appeal from Order of His Honour Judge Wakley - Brentford County Court)
(Revised)
Lord Justice Megaw
Lord Justice Roskill and
Lord Justice Lawton
In the Matter of section 53 of the Landlord And Tenant Act 1954:
Mr. MICHAEL BROOKE (instructed by Messrs. N. Ramsay Murrey & Co.) appeared on behalf of the Appellants (Respondents).
Mr. RICHARD FERNYHOUGH (instructed by Messrs. W.H. Hopkins & Co.) appeared on behalf of, the Respondents (Applicants).
I shall ask Lord Justice Roskill to deliver the first judgment.
This is an appeal by the landlords against an order of His Honour Judge Wakley, sitting at Brentford County Court, on 26th January, 1978, in proceedings between the tenants, West Layton Ltd., and the landlords, who, at the hearing before the learned judge, were Louis Joseph and Robin Dannhorn. The tenants sought, and indeed obtained from the learned County Court judge, a declaration that the landlords had unreasonably withheld their consent, under a lease dated 27th June, 1971, to the granting of a sub-tenancy by the tenants to would-be sub-tenants, Mr. and Mrs. Jack Woodward.
Before I go further it is necessary, so that it is on record, to mention one procedural matter, to which, most properly, counsel for the appellant, Mr. Michael Brooke, drew our attention before he opened the substance of the appeal. Mr. Dannhorn, the second of the two gentlemen named as landlords, in point of fact had no relevant interest in the premises in question, which are a butcher's shop at 278 Bath Road, Hounslow. The relevant party was Mr. Louis Joseph, who held the premises, we were told, as trustee for himself and for another. Unhappily, last September, after the learned judge's decision, Mr. Joseph died; and to date probate of the will, in which he named a Mrs. Ford as his executrix, has not been obtained. After discussion, the appellant's solicitors, most helpfully, gave an undertaking that they would be responsible for any order for costs which this Court might make in favour of the respondents; and they also undertook that as soon as probate has been obtained (we have since been told that it is likely to be obtained in the next five or six weeks, if all goes well) the title of this appeal will be amended by substituting as appellantMrs. Ford, the executrix of Mr. Joseph deceased. Meanwhile, it was agreed that, whatever the result of this appeal, no formal order would be drawn up until the title has heen so amended. So much for the formalities. I shall deal with the matter as if the executrix of Mr. Joseph had been substituted for the late Mr. Joseph.
Now, as I say, the landlord appeals. This case has been ably argued by counsel on both sides. The gravamen of the argument for the appellant is that the learned County Court judge reached a wrong conclusion and that he ought, instead of declaring that the landlord had unreasonably withheld his consent, to have upheld the landlord's refusal to grant the consent in question.
A few dates are relevant. As I said a moment ago, the term was granted on 27th June, 1971. On 4th March, 1974, the benefit of that term was assigned to the respondent tenants, West Layton Ltd., who, we are told, have a number of butchers' shops throughout London. On 5th November, 1976, the reversion of the lease passed to the late Mr. Joseph as trustee. But between the date of the assignment of the term to the respondent tenants and the acquisition of the reversion by the late Mr. Joseph, the Rent Act, 1974, had become law, on 14th August, 1974.
The lease contained two covenants which are relevant for present purposes. Mr. Fernyhough, for the respondents, invited us to look particularly at clause 2 (9) before we turned to clause 2 (18). Clause 2 (9) provides that the lessee covenants "not without the previous consent in writing of the lessor (a) to carry on or suffer to be carried on in or upon the shop portion of the demised premises or any part thereof any trade or business whatsoever other than that of a Butchers and at all times of the year during the usual business hours of the locality to keep the shop portion of the demised premises open as a shop for carrying on thesaid business and (b) to use the residential portion of the demised premises otherwise than for private residential purposes only".
Clause 2 (19) (a) (i) and (ii) read thus (and this is all-important): "Not to assign transfer charge underlet or part with the possession of any part of the demised premises except a letting on a service tenancy or occupancy of the living accommodation above the shop to any employee of the lessee or on a fully furnished tenancy for which furnished tenancy the landlord's consent in writing shall first be had and obtained and such consent for such a letting shall not he unreasonably withheld and (ii) not to assign transfer underlet or part with the possession of /the whole of the demised premises without the previous consent in writing of the lessor such consent not to he unreasonably withheld in the case of a respectable and responsible person".
Let it be said at once that no one has one single word to say against Mr. and Mrs. Jack Woodward. Their respectability is beyond question. Their suitability to be sub-tenants of the residential part of these premises in Bath Road, Hounslow, has not been disputed.
There is attached to our papers a sketch plan of the ground floor of this shop. We have not got a plan of the first floor, where the residential accommodation is contained; but if one looks at the ground floor plan it is reasonably plain that this is a very simple type of small shop with accommodation at the rear in the nature of a kitchen, a store, a lavatory and so on; then upstairs is a small amount of residential accommodation. It is clear that the intention was that this shop should be used for, and only for, a butcher's shop, and that the tenant should have the right to use the upstairs accommodation without let or hindrance from the landlord, the occupant being any employee whom they might let in on a service tenancy or licence for the purpose of the business ofbutchery that was being carried on underneath, but that if the tenant wanted to use the upstairs accommodation for any other residential purpose dissociated from the business of butchery, two conditions had to be satisfied. One was that the landlord's written consent had to be obtained and such consent was not to be unreasonably withheld, and the other that such tenancy had to be a furnished tenancy.
This lease, as is obvious from the chronology which I have already given, was entered into before the Rent Act, 1974, protected furnished tenancies. It is clear, therefore, that the draftsman of this lease thought that, if there were a letting of the type contemplated by clause 2 (18) (a), when the term of the lease ran out by effluxion of time there would be no difficulty in the landlord regaining possession. It is clear that the position has changed since 1974; and it is feared that if Mr. and Mrs. Woodward go into possession now and obtain statutory protection under the Rent Act, 1974, there will be difficulty in regaining possession when this lease expires in five or six years' time. That is really what this dispute is all about.
The learned judge, in a careful judgment, of which we have a note, as he said found this a difficult case to resolve: he expressed the hope that the matter might be taken - as in the event it has been - to the Court of Appeal. I hope I do the learned judge's careful judgment no injustice if I say that his reason for reaching the conclusion that he did, namely that the landlord had unreasonably withheld his consent, was based upon the fact that he thought that he was following what had been called in argument "the Rent Act cases" and not what had been called in argument "the Leasehold Reform Act cases". He also appears, judging from a passage which will be found at page 3 of the judgment (page 13 of the typescript) to have taken the view that because there was asubstantial period of this lease left unexpired - more than 7 years, he said in the passage in question - it was almost automatically unreasonable for this landlord to withhold his consent in the circumstances in which he did.
It seems to me that one has to approach this problem not so much by reference to the authorities - of which there are a great number - as a matter of the construction of the covenant which I have already read. The facts are not in dispute. Against those background facts, which I hope I have outlined sufficiently, can it fairly be said that the tenants have shown that this landlord has unreasonably refused his consent?
I do not find it necessary to refer to more than a few of the cases. The cases suggest that there has grown up a practice of asking the question: Is the proposed assignment a "normal" assignment or an "abnormal" assignment? If it be the former, then the consent is said to be unreasonably withheld. If, on the other hand, it is the latter, then the consent is said to be not unreasonably withheld. I respectfully question whether, although that phraseology appears to have been used more than once in the cases, it is very helpful phraseology. One first finds reference to it in the decision of this Court in Swanson v. Forton (1949) 1 Chancery 143, in the judgment of Lord Greene, Master of the Rolls, at page 152, where this Court followed the immediately...
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