R v Rent Officer for the London Borough of Camden, ex parte Felix

Rent Act 1977 — Applications by landlord of four properties for judicial review refused — Applications to rent officer to register fair rents signed by some but not all joint tenants — Whether Turley v Panton principle applicable — Landlord’s allegations of non-receipt of copies of applications and invitations to consultations — Effect of lengthy delay by landlord in applying for judicial review — Judge’s discretion — Applications ‘singularly lacking in merit’ but raised questions as to rent officer’s jurisdiction — It should be explained that the relevant agreements purported to grant non-exclusive licences, not tenancies, and issues had been raised elsewhere as to their status, but for the purpose of the present applications for judicial review it had been agreed that the transactions should be assumed to create tenancies In the first of the four cases the application to the rent officer had been signed by two out of the three joint tenants, the third having moved out — The judge held that in this case it was proper to infer from the evidence that the two who signed were authorised to apply on behalf of the third as well as themselves — He preferred, however, to rest his decision on the alternative ground that the evidence justified the conclusion that the arrangement made with the landlord was the grant of a joint tenancy to the three, to be followed on the departure of one by a joint tenancy of the other two — The challenge to the rent officer’s jurisdiction accordingly failed In the second case the application to the rent officer was signed by one only of the five joint tenants — The landlord admittedly received notice of this application and an invitation to attend a consultation, but he did not attend — All five tenants attended and the rent officer took the opportunity of obtaining signatures to the application from the other four joint tenants — He then sent out a further letter to the landlord, enclosing a copy of the amended application, and issued an invitation to the fresh consultation — That letter, addressed to the landlord’s proper address, was returned, with a note that it had not been ‘called for’ — The landlord evidently did not take business-like steps to ensure receipt of mail — The rent officer proceeded to determine a fair rent — This was challenged by the landlord on the grounds that the first application was invalid as made by one out of five joint tenants and that the rent officer’s determination was a nullity as the landlord had not received the amended application or the notice of the second consultation — As the judge found clear evidence that the first application was made with the full authority of all five joint tenants, it was unnecessary to consider the effect of the non-receipt of the amended application and invitation to a second consultation — Here again the landlord’s challenge failed The third question concerned two other properties of the landlord — The applications here were made by all the tenants and the main points were the effect of lengthy delay by the landlord in applying for judicial review and whether the judge should exercise his discretion under Ord 53 of the RSC notwithstanding the delay — The applications were made more than eight months after the rent officer’s determinations as compared with the three months mentioned in Ord 53 — The reasons for the delay were partly the ill-health of the landlord’s solicitor and partly the failure of the latter’s managing clerk — After considering all the circumstances the judge refused to exercise his discretion to extend the period — In so deciding, he took note, among other matters submitted on behalf of the landlord as grounds for relief, of the non-receipt (due in fact to the landlord’s failure to provide for the proper delivery of mail) of a notice under para 3 of Schedule 11 to the Rent Act 1977 in regard to a consultation — The judge pointed out that the landlord had other remedies apart from judicial review; he could have asked the rent officer to reopen the case (R v Kensington and Chelsea Rent Tribunal, ex parte MacFarlane) or arranged for a reference to a rent assessment committee — Once more the landlord’s challenge failed In the result all the applications were dismissed The following cases are referred to in this report. Hewitt v Leicester Corporation [1969] 1 WLR 855; (1969) 67 LGR 436; 20 P&CR 629; [1969] EGD 340; 210 EG 459; sub nom Hewitt v Leicester City Council [1969] 2 All ER 802, CA Lloyd v Sadler [1978] QB 774; [1978] 2 WLR 721; [1978] 2 All ER 529, CA (1978) 35 P&CR 78; [1978] EGD 291; 246 EG 479, [1978] 1 EGLR 76, CA Maltglade Ltd v St Albans Rural District Council [1972] 1 WLR 1230; [1972] 3 All ER 129; (1972) 70 LGR 490; 24 P&CR 32; [1972] EGD 802; 224 EG 37, DC R v Chief Constable of Merseyside Police, ex parte Calveley [1986] QB 424; [1986] 2 WLR 144; [1986] 1 All ER 257, CA R v Kensington and Chelsea Rent Tribunal, ex parte McFarlane [1974] 1 WLR 1486; [1974] 3 All ER 390; (1974) 29 P&CR 13; [1974] EGD 317; 232 EG 585, DC R v London County Quarter Sessions Appeals Committee, ex parte Rossi [1956] 1 QB 682; [1956] 2 WLR 800; [1956] 1 All ER 670, CA R v Stratford-on-Avon District Council, ex parte Jackson [1985] 1 WLR 1319; [1985] 3 All ER 769; (1985) 84 LGR 287, CA Regis Property Co Ltd v Camden Rent Officer [1967] EGD 752; (1967) 204 EG 912, DC Turley v Panton (1975) 29 P&CR 397; 236 EG 197, [1975] 2 EGLR 75, DC These were applications for judicial review by Charles Felix of determinations by rent officers relating to the following properties in north-west London of which he was the landlord: Flat 6, 64 Parliament Hill; Flat 42A Dartmouth Park Road; 64 Parliament Hill and Flat 5, 67 Parliament Hill, NW3. R J Moshi (instructed by Collyer-Bristow) appeared on behalf of the applicant; G F Pulman (instructed by the Treasury Solicitor) represented the rent officer; Andrew Arden (instructed by Camden Community Law Centre) represented the tenants. Giving judgment, HUTCHISON J said: I have to determine two applications for judicial review by a landlord of residential property in north-west London, Mr Felix, by which he challenges the validity of the determination by rent officers of the London Borough of Camden of fair rents in respect of four of his properties. Some of the applications were made outside the time allowed by Ord 53, and counsel on behalf of the tenants and the council invite me to decline on that ground to entertain them. All the applications are, moreover, as it seems to me, singularly lacking in merit; but, while that is material to the question of whether I should allow the applications to proceed despite the delay and to the exercise of my discretion as to whether to grant relief, it is of course of no materiality to the question whether the rent officer’s determinations were invalid for want of jurisdiction. There are in effect four separate cases comprised in these two applications, and while each requires separate consideration and, to an extent, gives rise to distinct arguments, there is a good deal of similarity between them. In particular, the form of agreement in each case is identical and purports to grant not a tenancy but a licence. However, for the purposes of these applications it has been agreed between the parties that I should proceed on the assumption that each transaction created a tenancy. The convenient course, it seems to me, will be for me to deal first and in detail with the facts and the arguments relating to the first of the premises in question, Flat 6, 64 Parliament Hill, NW3. I shall then be able to deal somewhat more briefly with the other three properties. Flat 6, 64 Parliament Hill By what purport to be three licences dated July 30 1985 Mr Felix granted non-exclusive possession of the premises to each of three people, Miss Thomas, Mr Dow and Mr Mortimer, ‘in common with the Licensor and such other licensees or invitees as the Licensor may from time to time permit to use the rooms’. The grant was in consideration of each of the three persons I have mentioned paying £151.66 per month. There was a term precluding the licensor from permitting more than two other persons (himself apart) to use the rooms. It was common ground at the hearing that the effect of the concession already mentioned, on the issue of whether this agreement constituted a licence or a tenancy, was that these three agreements fell to be treated as though they created in favour of the three grantees a single joint tenancy at a monthly rent of £454.98. There is uncontradicted evidence from the three tenants as to how they came to enter into this tenancy and, since for reasons which I shall explain that evidence suffices to dispose of the only point taken by the landlord in support of his attack on the validity of the rent officer’s determination of the fair rent of the premises, I must mention it in a little detail. Mr Dow and Miss Thomas heard of the flat through a colleague of Mr Dow, who shared it with his girlfriend and Mr Mortimer. All three of them wanted to move: two more or less at once and Mr Mortimer as soon as he could find somewhere suitable. Mr Dow and Miss Thomas knew of a friend whom they thought might wish to take Mr Mortimer’s place — in the event he did not — and so were interested. Mr Dow got in touch with Mr Felix and went to meet him. Mr Felix told him that the rent was £455 per month, agreed that Mr Dow and Miss Thomas could rent the flat as soon as the others moved out and suggested that Mr Dow contact him again with a view to a further meeting at the end of July. Towards the end of July Mr Mortimer told Mr Dow and Miss Thomas that he had still not found anywhere to live and would like to stay until he did. They were agreeable. Mr Dow telephoned Mr Felix and told him that Mr Mortimer wished to stay for a short time until he had found somewhere else to live and that he and Miss Thomas were agreeable to this. Mr Felix said that this was all right and a meeting was arranged for the last Saturday in August. All three attended. Mr Mortimer gives some particularly important evidence, saying this: In so far as the facts and matters deposed to in paragraphs 3 to 8 of Adrian Dow’s affidavit are within my own knowledge, I confirm them to be true. At the meeting with the Applicant in July, when the agreements were signed, I confirm that the Applicant was aware that I would be staying in the flat only temporarily for a couple of months with Adrian Dow and Tamsin Thomas, and that I would be moving out once I had found other accommodation, and that Adrian and Tamsin would remain in the flat thereafter. In November 1985 Mr Mortimer found somewhere and moved out. Mr Dow and Miss Thomas refunded to him his deposit (equal to a month’s rent) and thereafter assumed liability for the entire rent. By an application dated November 26 1985 Miss Thomas and Mr Dow sought determination of a fair rent. They completed the application form in their names, describing themselves as joint tenants and stating that the current rent was £454.98 per month. The rent officer served on Mr Felix appropriate notification of the application, enclosing a copy, and invited Mr Felix to a consultation in the ordinary way. Mr Felix, though admittedly he received that notification and invitation, did not respond or attend the consultation. On April 10 1986 the rent officer determined the rent at £230 per month and notified Mr Felix of this decision. The application for judicial review is dated July 10 1986. The sole point taken (apart from the licence/tenancy point, with which I am not concerned) was that as the application was made by only two of three joint tenants, the determination was made in excess of jurisdiction and was, therefore, a nullity. The relevant statutory provision is section 67(1) of the Rent Act 1977, which provides as follows: An application for the registration of a rent for a dwelling-house may be made to the rent officer by the landlord or the tenant, or jointly by the landlord and the tenant, under a regulated tenancy of the dwelling-house. Mr Moshi, on behalf of Mr Felix, contends that ‘the tenant’ means, in a case such as the present, all the joint tenants and that, since Mr Mortimer was a joint tenant and was not a party to the application, there was a failure to comply with the statutory provisions and that accordingly there was no valid application before the rent officer. He relies on the decision of the Divisional Court in Turley v Panton (1975) 29 P&CR 397, where it was held, in relation to the provisions of the Rent Act 1968 (which are differently worded but to the same effect), that an application by one of four joint tenants was not an application which the rent tribunal could entertain and that accordingly the rent tribunal’s decision was a nullity. Mr Arden, who appears for all the tenant respondents, and Mr Pulman, for the rent officer, accept that this case establishes that the application must, ordinarily at least, be made by all joint tenants and that the ratio of the decision is that the tenants must act together, it being inconceivable that it can have been contemplated that one tenant might apply for registration of a rent, to be followed by another and another and so on. They point out, however, that Turley’s case was one where clearly the applicants were not acting together. They advance a number of arguments. First, it is said that there is no reason why one or more tenants should not make the application on their own behalf and as agents for all the other tenants. The unnamed principals will then be bound by the determination and the possibility of multiple applications does not exist. Accordingly, if, as they contend is the case, it is legitimate to infer that Mr Dow and Miss Thomas were clothed with authority to make the application on Mr Mortimer’s behalf as well as their own, the application was a proper one, the absence of his name from the application form being a breach not of a mandatory requirement of the statute but merely of the directory requirements embodied in the prescribed form. The application was made on behalf of all the tenants, even if only two of the three were named in the form. They argue that, in the circumstances disclosed by the evidence I have quoted above, it is to be inferred that Mr Mortimer had on his departure impliedly authorised them to do all necessary or proper acts in connection with the tenancy on his behalf. They cite the proposition to be found in Article 8 in Bowstead on Agency, 15th ed, to the following effect: Agreement between principal and agent may be implied in a case where each has conducted himself towards the other in such a way that it is reasonable for the other to infer from that conduct consent to the agency relationship. There is a degree of artificiality about all this. When Mr Mortimer departed he believed, the evidence leads one to infer, that his fellow tenants and the landlord all assented to his doing so on the basis that he should thenceforth cease to be a tenant and the relationship should continue to subsist between Mr Dow and Miss Thomas on the one hand and Mr Felix on the other alone. Not envisaging any continued liability, he cannot have contemplated the necessity to authorise them to do anything on his behalf. Mr Moshi, disputing the notion of agency, argued along these lines. However, I cannot escape the conclusion that, had Mr Mortimer been alive to the fact that he remained a tenant, primarily liable under the agreement — if he did: the respondents’ second and main argument is that he did not — he would certainly have assented to the proposition that Mr Dow and Miss Thomas were authorised to act on his behalf in all matters relating to the tenancy. I think I am entitled to take judicial notice of the fact that, in London at least, flat sharing is extremely common and that fairly frequent comings and goings are by no means unusual and must often take place without the formalities appropriate to the surrender by one joint tenant and a regrant to those remaining. In such situations, if the fortuitous departure of one of the tenants, perhaps in circumstances where he cannot be traced, is to prevent those remaining having recourse to the rent officer, it would be regrettable. These reflections make me the more ready to accept the respondents’ argument on implied agency and to hold that it would be proper to infer that Mr Dow and Miss Thomas were making this application on Mr Mortimer’s behalf as well as their own. However, there are other grounds which, like counsel for the respondents who advanced them, I prefer for saying that the applicant’s challenge to the rent officer’s jurisdiction fails. Counsel’s second argument, developed, as was the first, by Mr Arden and adopted by Mr Pulman, was that the evidence properly interpreted leads to the conclusion that from the outset the arrangement was one involving a grant to Dow, Thomas and Mortimer to be followed, upon Mortimer’s departure, by a joint tenancy enjoyed by Dow and Thomas alone. It seems to me that this contention is well founded. I do not see how one can reasonably construe the evidence of the tenants, Mr Mortimer in particular, save on the basis that they and the landlord were agreeing that Mr Mortimer might remain temporarily as a tenant, would shortly be moving out and that thereafter the other two would be the tenants. There is nothing to prevent parties reaching such an agreement, and I hold that they did so in this case. Accordingly, at the time the application was made the only joint tenants were Miss Thomas and Mr Dow. In the circumstances, I do not feel that I need explore or express a concluded view upon the alternative argument that Mr Arden advanced, to the effect that there had been an implied surrender and regrant by operation of law; nor the further argument, based on the decision of the Court of Appeal in Lloyd v Sadler [1978] 2 All ER 529 (which decided that where one of two protected joint tenants ceased to occupy, the other was nevertheless entitled to be regarded as the protected tenant with a right to a statutory tenancy on termination of the contractual term) to the effect that the strict rules applicable to joint tenants cannot have been intended by the legislature to apply to cases such as the present. If I am wrong in accepting the validity of the two contentions advanced by the respondents upon which I have expressed an opinion, there remains the question of discretion. As to that, and despite my view that the landlord’s arguments are wholly without merit, I should not have felt able to refuse relief as a matter of discretion had I concluded that he was otherwise entitled to it. If the rent officer did not have jurisdiction, it would not be right to refuse as a matter of discretion to quash his decision. Flat 42A, Dartmouth Park Road I turn now to the other premises comprised in the application dated July 10 1986: Flat 42A, Dartmouth Park Road. I can deal with these quite briefly. The forms of agreement, variously dated September 23, 24 and 25 1985, but all entered into at the same time, were similar to those already considered. The five joint tenants were Miss Wilde, Mr Curry, Mr Rock, Miss Bowyer and Miss Mardel-Ferreira. The rent was £156 per month each, a total of £780 per month. On January 12 1986 application was made on the prescribed form for registration of a fair rent. The relevant parts of the application were completed as follows: Q  Name of tenant?  A Hilary Wilde. Q  Does the tenant share any accommodation with another tenant?  A  Yes the flat is shared between 5 people. Q  What repairs are the responsibility of the tenant?  A  Breakages for which we were directly responsible. Q  Give details of the other terms of the tenancy?  A  Our landlord has constantly avoided giving us our tenancy agreements therefore this is a little difficult to answer. Q  What is the rent now?  A  £156 per month. Q  Does this include any rates?  A  We don’t pay rates separately. The application was signed by Hilary Wilde as tenant. The rent officer notified Mr Felix of this application and sent a copy of it to him. It was admittedly received, as was a letter of February 19 1986 fixing a consultation for February 27. Mr Felix did not, however, attend the consultation, but all the tenants did. The rent officer took the opportunity to get the other four to add their names and signatures to the form, and sent a further letter, dated February 28 1986 but despatched by recorded delivery on March 3, to Mr Felix enclosing a copy of the amended form and proposing a consultation for March 17. That letter was returned on March 26 annotated to the effect that it had not been called for. It seems that, despite his extensive property interests, Mr Felix does not maintain an address at which his business mail is delivered in the normal way. The second preliminary hearing took place on March 17. Mr Felix, of course, did not attend, though the tenants did. On April 3 there was an inspection, of which notice was sent to Mr Felix on March 17, but he did not attend. On April 16 1986 the rent officer determined the fair rent at £368 per month and Mr Felix was notified of this decision. Two points are taken by the landlord. First, it is said that the application which was served on him was made by only one of five joint tenants and that accordingly it did not comply with the statute and any determination based on that application was a nullity. Second, it is said that neither the amended application nor the notice of the meeting of March 17 was ever received and that accordingly the rent officer’s determination was a nullity for that reason. Reliance is placed on the decision of the Divisional Court in Regis Property Co Ltd v Camden Rent Officer [1967] EGD 752. In my view, however, it is unnecessary to rehearse or decide upon the validity of any of the arguments based upon the non-receipt of the amended notice and the invitation to a consultation on March 17 because a reference to the evidence of the respondents, again uncontradicted, clearly shows that Miss Wilde was authorised by the other four tenants to make the application, and that in completing133 and signing the unamended form she was acting as their agent — something which the contents of the form also tend to confirm. In his affidavit Mr Curry says: In about November/December 1985 Hilary, Andrea, Stephen, Lucinda and I discussed between us whether we should apply to register a fair rent in respect of the flat. Eventually we decided that we should and it was agreed that Hilary would complete the necessary paperwork. All the others in terms assert the truth of this evidence. In my view, one could not have a clearer case of agency, and the fact that the form did not include an explicit reference to Miss Wilde’s acting as agent for the other four, if it is a matter for criticism at all, certainly does not go to jurisdiction. Clearly the application was made by all the joint tenants, and of that application, and of the meeting provoked by it, Mr Felix received notice. That is enough to dispose of the case in relation to 42A Dartmouth Park Road. 64 Parliament Hill and Flat 5, 67 Parliament Hill, NW3 It is convenient to deal with both these properties together because they give rise to precisely the same problems. No question of parties arises, as in each case the applications were made, explicitly, by all the tenants. They were, moreover, made and determined on the same date. The questions which do arise for consideration are: 1  Are the claims barred by delay?  If not 2  Was there service of notice of the applications and, if not, does this mean that the rent officer’s determination of a fair rent was a nullity or otherwise invalid? 3  Even if there were service of notice of the applications, was there a failure to serve notice of a consultation and, if so, what is the effect of such failure? 4  Discretion. Order 53 requires application for judicial review to: be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made. The determinations of fair rent in each case were made on July 30 1986 and promptly sent to the applicant, who actually opened them on August 5: he had been away. His case is that this was the first he knew of any applications for registration and he at once instructed his solicitors to take the necessary steps to have the determinations quashed. The applications were not made until April 9 1987, whereas they should have been made at the latest by October 30 1986. Mr Pulman advanced forceful and telling arguments as to why the excuses put forward for this excessive lapse of time were invalid and the matter deserves careful analysis. The grounds of application assert that the reasons for the failure to make the application within three months are set out in the affidavit of the applicant’s then solicitor, Mr Shapiro. He confirms that, in relation to these properties, he was instructed on August 6 1986, and says that he formed the view that the determinations should be quashed. He spoke to counsel the following day and instructed his managing clerk to issue an application for judicial review as soon as possible. At the time Mr Shapiro was in rather poor health and had to rely heavily on his managing clerk. He says that the latter assured him that the applications had been issued and that it was not until December 3 1986 that he discovered that they had not. The managing clerk had left his employment in September 1986. On December 31 Mr Shapiro’s health was such that he ceased practice on his own account and transferred all his cases to Messrs Collyer-Bristow, whom he joined as a consultant. Exhibited to his affidavit are medical certificates confirming his account of his ill-health and the events of August 7. Mr Pulman points out that there is no explanation whatsoever for the delay between January 1 and April 9 — in itself a period exceeding three months. The failure of the clerk to issue the proceedings had been known since December 3. Even in relation to the earlier period, Mr Pulman submits, the excuse put forward is not particularly impressive: allowing that Mr Shapiro was ill, the managing clerk, in whose competence he obviously reposed trust, and as to whom there is no reason (apart from this particular failure) to assume incompetence, was in serious breach of duty. Mr Pulman argues that in the circumstances the application is made so far out of time that relief should be refused on that ground alone. There is, he submits, no good reason for any of the delay from January 1 to April 9 1987. Cases such as the present, he argues, are pre-eminently cases where the applications should be made promptly. A decision of a rent officer, once taken, is acted and relied upon by various people, not least the tenants who believe that their obligation is only to pay the reduced rent. If the decision is quashed, the longer the delay has been and the more adverse are the consequences for the tenant. Mr Pulman referred me to R v Stratford-on-Avon District Council, ex parte Jackson [1985] 1 WLR 1319, in which the Court of Appeal considered delay in cases where judicial review was sought. He relied on the judgment of Ackner LJ, as he then was. At p 1322 H the learned lord justice said: The essential requirement of the rule is that the application must be made ‘promptly’. The fact that an application has been made within three months from the date when the grounds for the application first arose does not necessarily mean that it has been made promptly. While it is true that some — though in my judgment an inadequate — explanation is advanced for the delay during the initial three months’ period, this passage serves to emphasise that speed is of the essence and that the material question for me is whether, having regard to the lapse of no less than nine months between the decision and the making of the application, it has been shown that ‘good reason’ exists for that delay, in particular for the period between December 6 1986 and April 9 1987. I seriously doubt whether the failure of the managing clerk to carry out Mr Shapiro’s instructions constitutes ‘good reason’ — professional advisers are employed not as a handicap to but as a means of expediting and facilitating the conduct of proceedings. Even if it does, there is no reason whatever, let alone good reason, advanced for the delay from January 1. In the circumstances I do not consider that I ought to exercise the discretion I am given by the rules to extend time and I refuse these two applications on the ground that they have not been made promptly and that no good reason exists for allowing them to be made in the face of what I consider to be undue delay for which no good reason has been advanced. In the circumstances I can consider relatively briefly the grounds upon which reliance is placed. What the evidence establishes is this: 1 The rent officer who dealt with both applications was Mr J McWilliam Smith. They were both received on May 12 1986 and allocated to him. On June 5 he wrote to all parties, including Mr Felix, sending copies of the applications and inviting their attendance at a preliminary hearing, to enable him to consider whether he had jurisdiction, on June 19. The letters to the applicant were addressed to him at his correct address, 12 Reddington Road NW3, and were sent by recorded delivery. They were not returned nor was any notification received to indicate that they had not been delivered. In the course of the investigation in connection with the preparation of this case, the applicant’s solicitors made inquiry of the Post Office as to whether various letters — to some of which I shall refer in a moment — had been delivered, but that inquiry did not extend to either of these letters. In his affidavit the applicant says that the first intimation he received of the applications was the notification of the registration of a fair rent, thereby implicitly asserting that he did not receive these letters. However, the fact that the Post Office did not return them, that no inquiry has been made of them by the applicant and that the presumption is that they were delivered, leads me to accept Mr Arden’s invitation to infer that they were received. As his inactivity in relation to the other premises shows, there is no reason to believe that Mr Felix’s natural reaction would have been to attend the meeting of June 19, so in my view his failure to do so does not afford any reason against drawing this inference. 2  There is a difference of recollection between Mr Smith — who says no one attended the meeting on June 19 — and Mr Ewen [one of the tenants] — who says that he alone, with Mr Smith, did so — but what is undoubted is that neither Mr Felix nor any of the other tenants did. Mr Smith, quite properly, decided he had jurisdiction. 3  By letters in standard form written on June 19 Mr Smith wrote to the parties inviting them to a consultation meeting on July 4. Those to Mr Felix were again sent by recorded delivery and were returned undelivered, marked ‘Not called for’, on June 28. Mr Smith says he was not aware of any other addresses he could write to and it has to be remembered that the address employed was the correct one. It is said, no doubt correctly, that the chief rent officer for Camden was aware of the identity of solicitors who had acted in the past for Mr Felix in relation to such matters, but there were placed before me letters showing that attempts to serve in this way in the past had met with the request to serve the client direct. Anyway, there is no evidence that134 Mr Smith knew of the identity of the solicitors. 4  On July 4 Mr Smith proceeded to inspect the premises and determine the fair rent, of which notification of the registration was sent to Mr Felix and received by him, as already described, early in August. Mr Moshi complains of the non-receipt of notice of the application, but that issue I have determined adversely to him. Furthermore, even if I may not legitimately infer that the letters of June 5 were received by Mr Felix, the position undoubtedly is that so far as the rent officer was concerned he was at all material times, and in particular on June 19 and July 4, entitled to assume that service had been regular and effective. Mr Moshi seeks to rely, alternatively, on the admitted non-receipt, known to the rent officer, of the letters of June 19; letters which, as he points out, contain notice of matters required to be given to the landlord by the provisions of para 3 of Schedule 11 to the Rent Act 1977. Basing himself on three cases, he asserts that in the circumstances there was no effective service of those notices. Those cases — R v County of London Quarter Sessions Appeals Committee, ex parte Rossi [1956] 1 QB 682, Hewitt v Leicester Corporation [1969] 1 WLR 855 and Maltglade Ltd v St Albans Rural District Council [1972] 1 WLR 1230 — appear to me to support Mr Moshi’s contention, their ratio being that, where notice has been returned showing that the document in question has not been received by the addressee, this is in effect proof of non-service and overrides any presumptions that might otherwise be operative. It is difficult to see how it could be sensibly argued that Mr Felix had notice of the hearing of July 4. However, I feel impelled to reject Mr Moshi’s invitation to quash the decision of the rent officer on the strength of that lack of notice. My reasons for refusing relief — delay, which I have already dealt with, apart — are twofold: 1  I accept as correct the submissions made by counsel for the respondents that there were other and more appropriate remedies to which the applicant could and should have resorted. The case of R v Kensington and Chelsea Rent Tribunal, ex parte MacFarlane [1974] 1 WLR 1486 shows that, in circumstances such as these, the rent officer has power to reopen the matter at the request of the party who, through lack of notice, has not attended; at any rate where he is satisfied that there is a good argument on the merits for allowing the absent party to be heard. In these proceedings the issue of licence or tenancy has not, because of the concession made, arisen, but it is clear from the evidence that that is the real matter Mr Felix wished to dispute. As to that, however, he had, so far as the rent officer knew and, in fact, as I have held, notice of the meeting at which that issue was to be determined. Had he wished to raise an argument on the quantum of rent, as he asserts, he could and should have invited the rent officer to allow the matter to be reopened, but he never did so. As what I shall say in relation to the second reason will show, it is to be inferred, that this is because in truth he had nothing to say on the issue of the amount of rent. I have in mind, in this connection, the words of Glidewell LJ in R v Chief Constable of Merseyside Police, ex parte Calveley [1986] 1 All ER 257, where he said at p 267: . . . where an application is made for judicial review but an alternative remedy is available, an applicant should normally be left to pursue that remedy. Judicial review in such a case should only be granted in exceptional circumstances. To the same effect is the case of Ex parte Swati at p 717 in the same volume. Mr Felix, as the evidence shows, is not an amateur landlord — quite the contrary. I cannot entertain any real doubt that, had he really wished to be heard on the issue of the quantum of rent, the first thing that would have occurred to him would have been to invite the rent officer to reopen the matter. Furthermore, there is provision in Schedule 11 as amended for a reference, in effect an appeal, by a dissatisfied party to the rent assessment committee. It is true that their determination operates only from the date it is made and, therefore, such a reference may be thought not to afford so satisfactory an alternative remedy as an invitation to the rent officer to reopen the matter. Perhaps it is in connection with my second reason that the applicant’s failure to invoke this right can be said to be more significant. 2  In any event, I consider that this is a case where, even if a prima facie right to relief were established, I should refuse it as a matter of discretion. As Mr Pulman pointed out, nowhere in the applicant’s affidavits is it suggested that he would have wished to say anything, or had anything to say, on the issue of the amount of rent: there is merely the bare assertion that he was deprived of the opportunity to make representations on that topic. There is no indication of what he would have said, or anything going to the merits of the issue. Moreover, the fact that in the case of those properties in respect of which he did receive notice he did not appear lends support to the respondents’ contentions in this regard. Mr Arden, supported by Mr Pulman, invited me also to view the issue of discretion in a rather wider context. If relief were granted in these proceedings, the tenants — who on the basis of the rent officer’s determination would prima facie seem to be tied to contractual rents far above the level of appropriate fair rents — would have to mount fresh applications, the benefit of which would accrue to them only when the rent officer determined them, but meanwhile they would have to pay all the arrears at the contractual rate. Counsel invite me to say that such an outcome is material to the question of how I should exercise my discretion. They submit, moreover, that the whole conduct of the applicant militates against the grant of relief, pointing to his failure in the other cases to take the issue of parties, or attend the consultations of which he admittedly received notice, or take proper and business-like steps to ensure receipt of mail posted to what admittedly was his correct address, or approach the rent officer to reopen the matter, or seek a reference to the rent assessment committee, or make representations in these proceedings on the issue of the level of rents. I consider that there is substance in these submissions and that they can properly be relied on as additional grounds in support of an exercise of discretion against the applicant. Accordingly, if contrary to my conclusions on the substantive issues, and that which I have reached on the issue of delay, these were otherwise cases in which it would have been open to me to grant the relief sought, I consider that I should as a matter of discretion refuse it, and I would do so. After a discussion the judge took the course, somewhat unusual in this type of proceedings, of awarding two sets of costs. The landlord was ordered to pay the costs both of the rent officer and the tenants.