Whiting Farms Ltd v Brian Stephen Garrett (Defendant/applicant)
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALE,LORD JUSTICE SCHIEMANN |
| Judgment Date | 03 July 2000 |
| Neutral Citation | [2000] EWCA Civ J0703-7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B3/1999/6433 |
| Date | 03 July 2000 |
[2000] EWCA Civ J0703-7
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPEAL FROM YEOVIL COUNTY COURT
(His Honour Judge Cotterill)
Lord Justice Schiemann
Lady Justice Hale
B3/1999/6433
B3/1999/6434
MR J SMART (instructed by the Daniel & Crutwell, 22 Bath Street, Frome, Somerset) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
(As approved by the Court
Monday 3rd July 2000
These are applications in relation to Fernbrook Farm, Motcombe, Shaftesbury, which is part of an estate belonging to the defendant appellant's grandfather, J J Garrett. According to the defendant, but not yet in evidence or the pleadings, these proceedings are part of a family feud designed to deprive him and his children of their rightful participation in that estate.
In 1958 his grandfather set up the claimant company, Whiting Farms Limited, to hold farms, it is said, for inheritance tax saving purposes. The defendant asserts that it was his grandfather's intention that the company should be wound up after his death and that of his wife (the defendant's grandmother), and the farms distributed between their children. Fernbrook Farm was to go to the defendant's father, George Garrett. George had farmed it since about 1931, initially in partnership with his older brother Alan but on his own since 1945. In 1958, shortly after the company was set up, there was an oral agreement between the company and George Garrett to let the farm to him from 29 September 1957.
The grandfather, J J Garrett, died in 1964. His sons, Alan and George Garrett, were executors of his will. George Garrett died in 1987. The beneficiaries of his will were his grandchildren. However, the defendant himself, George Garrett's son, had been in occupation of the farm since 1985. He had worked there as a young man, he had left to farm on his own account but he had returned to help his father out and then moved back in. It was common ground on the pleadings that by 1991, whether by operation of law or otherwise, the defendant had become the tenant of the farm and that this was an agricultural tenancy for the purposes of the Agricultural Holdings Act 1986.
On 24 November 1994, the company gave the defendant notice to pay under Case D in Part 1 of Schedule III to the 1986 Act, requiring him pay to £1,100 rent due on 29 September 1994 within two months. The defendant did not pay that money to the claimant company, although the judge accepted that he did pay the rent into an escrow account. On 2nd June 1995 the claimant served a notice to quit dated 25 May 1995 on the ground of failure to comply with the notice to pay and requiring the defendant to quit by 28 September 1996. On 20 November 1996 the claimant served this summons for possession.
On 11 December 1996 the defendant served a defence and counterclaim. Paragraph 2 of the defence claimed that the notice to quit was defective because the claimant had not previously served a notice under section 48 of the Landlord and Tenant Act 1987: that is, furnishing an address at which notices might be served on him by the tenant. It also claimed that the sum said to be due was inaccurate, denied that any sum was due pursuant to the notice to pay and, in paragraph 4, claimed that the claimant was in breach of its obligation to repair and maintain the farm. Paragraph 6 claimed that as a set off, and there was a counterclaim on the same basis.
The claimant applied to strike out the defence and counterclaim. This came before District Judge Smith. Judgment was given on 24 March 1997. It appears that by then the defendant had agreed to abandon the claim for lack of repair. The district judge's order, therefore, struck out that part of paragraph 4 although, perhaps surprisingly, not paragraph 6, claiming a set off, or the counterclaim. Otherwise he dismissed the claimant's application. District Judge Smith held that the point on section 48 was arguable. This was by reference to the case of Dallhold Estates UK v Lyndsey Trading Properties Inc [1994] 1 EGLR 93, despite clear authority that validity of a notice to pay could only be challenged by arbitration under article 9 of the Agricultural Holdings (Arbitration of Notices) Order 1987 contained in such cases as Magdalen College, Oxford v Heritage [1974] 2 All ER 1065. The district judge also held arguable a new point raised by counsel then appearing for the defendant that, as the farm included a dwelling house, it was also covered by section 5 of the Protection from Eviction Act 1977 and that the notice to quit was invalid because it did not comply with the Notice to...
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