Westminster (Duke of) v Guild
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE |
| Judgment Date | 30 March 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0330-2 |
| Docket Number | 83/0136 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 March 1983 |
[1983] EWCA Civ J0330-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
(HIS HONOUR JUDGE LIPFRIEND, SITTING AS A DEPUTY HIGH COURT JUDGE)
Lord Justice Stephenson
Lord Justice Kerr
and
Lord Justice Slade
83/0136
1979 G No. 304
MR. GAVIN LIGHTMAN QC and MR. A. GINSBERG (instructed by Messrs. Boodle Hatfield & Co, Solicitors, London W1Y 2BL) appeared on behalf of the Plaintiffs (Appellants)
MR. KIM LEWISON (instructed by Messrs. T. J. James & Sarch, Solicitors, London WC1R 5EN) appeared on behalf of the Defendant (Respondent)
This is the judgment of the court on an appeal from a judgment of His Honour Judge Lipfriend, sitting as a deputy High Court Judge, given on 14th May 1982 at the trial of a preliminary issue in an action. The plaintiffs in the action are the trustees of the will of the 2nd Duke of Westminster. The defendant is Mr. Ivan Robin Guild. The action was begun by a writ issued on 7th February 1979, by which the plaintiffs as landlords claimed against the defendant as tenant payment of alleged arrears of rent and certain other relief. The plaintiffs subsequently issued a summons for summary judgment. The defendant raised by way of defence and set-off against the rent a claim for damages in respect of loss suffered by him through the failure to repair a drain which, he said, the plaintiffs were bound to repair. On 15th December 1980 Master Elton gave the defendant liberty to defend the action and gave certain directions which were intended to enable the question of the liability for the repair of the drain to be determined as a preliminary issue. Following his directions, a statement of facts was agreed between the parties on 25th January 1982. The preliminary issue was then tried before His Honour Judge Lipfriend on 2nd July 1982. He decided it in favour of the defendant. He decided that the liability for the repair of the drain fell upon the plaintiffs and awarded the defendant the costs of the preliminary issue. The plaintiffs now appeal from his order.
The relevant facts all appear from the agreed statement of facts and from the lease itself. We will extract those of them which seem to us most material for the purposes of this judgment.
By a lease dated 11th August 1976 the plaintiffs granted to the defendant a lease of certain premises now known as 107a Pimlico Road, S.W.1. in the City of Westminster for a term beginning on 11th August 1976 and ending on 25th March 1997. The demise included the express grant of a right of way over a private roadway or mews leading from the demised premises to Pimlico Road, the right being expressed to endure
"so long as the Lessee and his successors in title and Assigns shall pay a proportion of the expenses hereinafter referred to in Clause 2 (IV) hereof".
By clause 2 (I) the defendant covenanted to pay the rent there in before reserved and "such proportionate part thereof as aforesaid". Clause 2 (III) began with the following words:
"The Lessee will at all times during the said term well and sufficiently repair paint paper and cleanse the whole of the demised premises…"
There followed in clause 2 (III) a long list of particular obligations of the defendant as regards the exterior of the demised premises, relating to such matters as paint and stonework, which were expressed to operate without prejudice to the generality of the opening provisions.
Clause 2 (IV) read as follows:
"(IV) The Lessee will on receipt of the Landlords' written demand forthwith pay and contribute to the Landlords a fair proportion with other lessees interested therein of the expenses of making repairing and scouring all party and other walls gutters sewers and drains belonging or which shall belong to the demised premises or be used jointly with the occupiers of any adjoining or neighbouring hereditaments And also a fair proportion of the expenses of maintaining repairing cleansing and keeping in good order and condition the paving or surface of the roadway of the passageway and private roadway shown coloured brown and also of the lighting of the said passageway and private roadway and further a fair proportion of the expenses of preserving the amenities of the demised premises and adjacent or neighbouring premises such proportion (if in dispute) to be determined by the Estate Surveyor of the Landlords whose determination shall be final and binding on the Lessee".
Clause 2 (VI) gave the Plaintiffs liberty at any time during the term to enter the demised premises for any lawful purpose including (inter alia) viewing its condition. It further provided that, upon any such entry, they might
"bring any requisite appliances and execute as well repairs on adjoining premises belonging to the Landlords as repairs which ought to be done on or to the demised premises the Lessee paying the cost of any such repairs to the demised premises and the Landlords making good all damage occasioned to the demised premises by any such entry to repair adjacent premises".
Clause 5, so far as material, provided as follows:
"THE LANDLORDS COVENANT with the Lessee that the Lessee duly paying the said rent and performing and observing all and every the covenants clauses and agreements hereinbefore respectively reserved and contained shall and may (subject nevertheless as aforesaid) peaceably enjoy the demised premises for the term hereby granted without any interruption by the Landlords or any person lawfully claiming through or under them".
The lease did not expressly impose any obligations whatsoever on the plaintiffs in regard to repair or maintenance. The issue of law raised on this appeal substantially concerns the extent of their liability (if any) to repair and keep in repair a drain which is situated partly under the demised premises and partly under the mews. The position of this underground drain ("the green drain"), which serves only the demised premises, is shown on a plan at p.19 of our bundle of documents. The demised premises are shown on the plan marked as 107a and bounded by a pink line. The green drain runs through the premises from left to right in the plan and then towards the bottom of the plan down the mews. At the date of the grant of the lease the demised premises drained into the public sewer in Pimlico Road by means of the green drain, which was intended to take both surface and foul water. The green drain was not expressly identified or referred to in the lease. In this court it has been common ground that (a) that part of it which was situated beneath the demised premises formed part of "the demised premises" within the meaning of Clause 2 (III); (b) the lease included the implied grant of an easement of drainage through that part of the green drain situated beneath the mews and belonging to the plaintiffs.
Before the lease was granted, the defendant made no structural survey of the drains serving the demised premises and at the date of the grant neither the plaintiffs nor the defendant knew of the existence of the green drain outside the demised premises. The landlords had not carried out any works of maintenance to it for many years, if ever.
There are two manholes situated beneath the demised premises which are shown by dotted lines on the plan and respectively marked "1" and "2". The green drain is shown as running from manhole 1 on the left of the plan to manhole 2 on the right of the plan and then bending round so as to run from manhole 2 to a third manhole (numbered "3") at the bottom end of the mews. Manhole 3 was sealed shut and only at the conclusion of the excavations to which we will refer was it opened by the defendant's builders and found to be dry. There is also a manhole situated under the mews very near the defendant's boundary, shown in a circle on the plan and marked "4".
Following the grant of the lease the defendant and a company called Homeworks Furnishings Limited ("Homeworks") converted the demised premises from a warehouse into a showroom at a cost of around £200,000. In March and early April 1979 it became apparent that the green drain serving the demised premises was defective. The defendant and Homeworks employees found on opening manhole 1 that the drain was blocked.
By 2nd April 1979 the plaintiffs had been informed of the want of repair of the drain and thereafter a series of meetings took place at the demised premises in connection with the drainage problems. Various investigations were carried out and the defendant made various attempts to clear the drain. These investigations and attempts were described or detailed in the statement of facts. Eventually the large manhole No. 2 was discovered underneath the demised premises. There had been no obvious indication of its existence; its inspection cover had been covered over before the grant of the lease. Most important of all, (we quote from the statement of facts):
"The green drain leading from manhole no. 2 along the Mews towards manhole no. 3 was full of earth and appeared not to have been cleared or maintained for many years".
So far as the plan shows, there was no other drain which served the demised premises, so that it is not surprising to learn from the statement of facts that the contractors excavating the premises ran into waterlogged ground before striking the run of the green drain.
In order to avoid the expense of rebuilding the entire length of the...
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