Fowler v Minchin

Rent Act 1977, Case 16 in Schedule 15 — Landlord sought possession of a cottage occupied by the tenant which had formerly been occupied by the landlord’s cowman and which the landlord now required for a person to be employed by him in agriculture — The conditions required by paras (a) and (c) of Case 16 were satisfied, but there was an issue as to para (b), under which it was necessary for the tenant to be given ‘notice in writing that possession might be recovered under this Case’ — The questions were whether a document which the landlord claimed to be such a notice had been given to the tenant and, if so, whether it complied with para (b) — The course of events was ‘remarkable’ — Until the actual hearing in the county court the case had proceeded on the basis that no notice complying with para (b) had been given — This had appeared from the pleadings and in a letter from the landlord’s solicitors — Unexpectedly, during the hearing evidence was given by the landlord that a written agreement, unfortunately since destroyed, had been entered into under which the tenant undertook to vacate the cottage on 28 days’ notice if the landlord required it for a farm worker — The county court judge accepted this as evidence that a notice complying with para (b) had been given and he held that the landlord was109 entitled to possession — The Court of Appeal expressed disquiet about the proceedings in the county court so far as this last-minute disclosure was concerned — However, they held that, even if a written agreement in the terms mentioned had come into existence, it did not satisfy para (b), because it was not a notice ‘that possession might be recovered under this Case’ — Such a notice must state quite specifically that possession might be recovered under the provisions of the Act, ie must make it clear that a situation would obtain which would be a compulsory situation so far as the tenant was concerned — The alleged term of the so-called agreement that the tenant would vacate on 28 days’ notice, if the landlord required it for a farm worker, was no more than a voluntary undertaking that he would do so — Tenant’s appeal allowed No cases are referred to in this report. This was an appeal by the tenant, David Richard Minchin, from a decision of Judge Hutton, at Gloucester County Court, in favour of the landlord, John Phillips Fowler, whereby the landlord was granted possession of a dwelling-house, 2 Riddlers End Cottages, Tirley, Gloucestershire. This was formerly a tied cottage occupied by a cowman employed by the landlord. The cowman left and the cottage was subsequently let to the tenant, Mr Minchin, who had never at any time been employed in agriculture by the landlord. D R Lewis (instructed by Langley-Smith & Sons, of Gloucester) appeared on behalf of the appellant; Simon Buckhaven (instructed by Leslie J Slade & Co, of Newent) represented the respondent. Giving judgment, STEPHEN BROWN LJ said: This is an appeal by the defendant, David Richard Minchin, from the judgment of His Honour Judge Hutton given at Gloucester County Court on June 27 1986. The learned judge gave judgment in favour of the plaintiff and ordered that the plaintiff should be entitled to recover possession of a dwelling-house, 2 Riddlers End Cottages, Tirley, Gloucestershire, within 28 days. The facts giving rise to the claim for possession can be shortly stated. The plaintiff, Mr Fowler, is a farmer who owns cottages in connection with his farm. No 2 Riddlers End, Tirley, was formerly a tied cottage occupied by a cowman employed by Mr Fowler. The cowman left in 1978 and the cottage became vacant. The plaintiff then let the cottage to the defendant, Mr Minchin. The circumstances in which he let it have been the subject of dispute. The claim for possession was brought under Case 16 of Schedule 15 to the Rent Act 1977. Case 16 provides: Where the dwelling-house was at any time occupied by a person under the terms of his employment as a person employed in agriculture, and (a)  the tenant neither is nor at any time was so employed by the landlord, and is not the widow of a person who was so employed, and (b)  not later than the relevant date, the tenant was given notice in writing that possession might be recovered under this Case, and (c)  the court is satisfied that the dwelling-house is required for occupation by a person employed, or to be employed, by the landlord in agriculture. When the case was pleaded the particulars of claim made no reference to any notice in writing having been given to the tenant not later than the relevant date in accordance with subpara (b) of Case 16. The particulars of claim were then amended to allege that prior to the defendant’s taking possession the premises had always been used for the purpose of housing agricultural workers, but again there was no reference in the amended particulars of claim to a notice in writing in accordance with the provisions of subpara (b) of Case 16. Para 3 of the amended particulars of claim merely alleged: At the commencement of the said tenancy it was expressly agreed between the parties that the Defendant would vacate the said premises if it should at any time become necessary to provide accommodation for farm labourers required for the proper management and control of the Plaintiff’s adjoining farm. The particulars of claim did, however, specify that possession was claimed under Case 16 of the 15th Schedule in the prayer for relief. The defence denied that any relevant notice had been given in writing and the defendant sought further and better particulars of any relevant document, if the agreement was alleged to be a written agreement. At p 28 of the bundle of documents before this court the request and the answer to the relevant request for further and better particulars is set out at para 5. The request was: (5)  If the agreement was written, the date and the identity of the document. Answer — Insofar as the agreement was evidenced in writing the document was a written undertaking that the rent should be paid weekly and would be equal to that of council houses in Tirley and would also be increased yearly on a par with inflation. The Defendant will have a copy of this undertaking in his possession. The written agreement was made on or about August 26 1978. There is no reference, it will be noted, to any notice in writing indicating that possession might be recovered under this Case. That was the answer in the further and better particulars. On the day before the hearing a reply was delivered. It is dated June 26 1986. Para 2 is in these terms: The Defendant is estopped from alleging that no notice in writing was given to him that possession might be recovered under Case 16 of Schedule 15 to the Rent Act 1977 by reason of the following matters: (1)  At the date of the letting agreement on or about August 26 1978 the Defendant represented to the Plaintiff that if the Plaintiff should require the property for a farm worker he would surrender up vacant possession on the giving of one month’s notice. (2)  In reliance upon the Defendant’s said representation, the Plaintiff let the premises to the Defendant without giving him notice in writing pursuant to Case 16 aforesaid. (3)  In the premises it is inequitable that the Defendant should now seek to rely on the absence of written notice. That was the reply, and it will be seen that it quite specifically states that there was no notice in writing pursuant to Case 16 and seeks to raise what appears to be an issue of estoppel. The case came on for hearing on June 27 1986. The ensuing course of events was, in the view of this court, remarkable. The case was opened by counsel on behalf of the plaintiff. The same counsel does not appear in this court today for reasons which will no doubt become apparent. The issue was raised, quite plainly at the very beginning, by the defendant that he was contending that there was no notice in writing sufficient to satisfy subpara (b) of Case 16 in this case. The plaintiff gave evidence — we have the judge’s note of the evidence — that he decided that he had to give up the farm work side because of ill health and would therefore need another person to work the farm. He gave evidence about his ownership of the cottage and its previous occupation by an agricultural worker employed by him, and he gave evidence about the letting. The note at the top of p 11 about seven lines down reads: We verbally agreed to the defendant’s initials putting interior right and keeping in good repair and if I gave a month’s notice he would vacate if I needed it for farm labour. It was a weekly term and rent in line with council houses in Tirley. He was to start paying rent one month after he had the key. Rent book first date August 26 1978. The meeting was about five weeks previously. He was happy to agree. At the meeting I agreed to get the term written out in duplicate so that when the defendant’s initials collected the key we would sign it. I wrote them out myself in duplicate. It said those three items. He signed the agreement when he had the key at Tirley Hill. It was two or three days after we had the verbal discussion. We both signed both copies and I handed one copy to him and retained one. It went with other documents to our solicitors when we had difficulty in collecting rent. It got lost then. The defendant had produced a document, D1, which purported to set out the terms of the agreement. It is at p 17 of the bundle and reads: An agreement between J P Fowler, the owner of Riddlers End Cottage (No 2) and Mr P Minchin the tenant of the above cottage. Riddlers End cottage will be let to Mr Minchin from August 26 1978 at a rent of £14.00 per week exclusive of rates. The rent to be reviewed annually in relation to the percentage rate of inflation. The plaintiff said during his evidence in chief that that note, and another note produced as D2 headed: ‘Riddlers End Cottage (No 2). August 26 1978 — Amanda Fowler. One week’s rent received until September 2’, was written by his daughter when she got the first rent, but he said that that was not the document he had originally written out. He then went on to deal with his reason for requiring the cottage, to enable him to obtain good labour. He said, according to the judge’s note: My wife and I knew about it when the original got lost. The solicitors were 110 and he names them and names a particular partner. Documents sent it is not clear just what the note should read at that point, but it may be ‘at times when we were trying to get arrears paid’. I think 1982 or 3. Discovered immediately I got documents back. I brought some back but not this. In the course of cross-examination he said: She said that is a reference to the partner in the firm of solicitors it was worthless and she threw it in the waste paper basket. I saw her do it. The position at the trial was this. Until the actual hearing commenced or was about to commence the defendant’s counsel had had no notice that reliance was to be placed upon a specific written document which it would be alleged complied with the requirement of subpara (b) of Case 16. During the course of the case, therefore, additional voluntary further and better particulars of the amended particulars of claim were given by the plaintiff. They are handwritten and we have a photostat copy of them: 1. Date of written notice During the week prior to July 29 1978 ie in the week before four weeks prior to the date shown in the Rent Book. 2. When and where it was given to the Defendant At Tirley Hill Farm at the time the Defendant was given the key during the week prior to July 29 1978, a day or two after the oral agreement. 3. Exactly what it said That the Defendant was to keep the premises in a good state of repair. That the Defendant would vacate on 28 days’ notice if the Plaintiff required it for a farm worker and lastly That the rent was to be paid weekly and was to be kept on a level with Tirley council house rents. In the course of the hearing the plaintiff’s counsel found himself in an embarrassing position. Until the plaintiff had answered in cross-examination that his solicitor had thrown the alleged written document into the waste paper basket saying it was worthless, he had no knowledge of any such allegation. All he had, apparently, was an indication on the same morning shortly before the hearing commenced from his lay client that a document had been lost by his solicitors. Clearly the pleadings to which I have referred, including the reply, which is dated June 26, implied that there was no written notice at all, so that counsel was in a difficult position. We are told by the defendant’s counsel (the appellant’s counsel today) who was present at the court of trial that the plaintiff’s counsel asked the judge for an adjournment and asked to be relieved of his position as the plaintiff’s counsel because of an apparent conflict between his solicitor on an important factual matter and his lay client. We are told by Mr Lewis, who appears for the appellant, that he did not oppose that application, but the judge did not grant an adjournment and the case proceeded. The defendant gave evidence that there never was a written notice in accordance with subpara (b) of Case 16. In due course the learned judge gave judgment. The judgment is a short judgment. We have a note of it approved by the judge. He set out the fact that it was not disputed that this was formerly a tied cottage and that the requirement (a) in Case 16 was not disputed. The issues are as to requirements (b) and (c). Having heard the evidence of Mr Fowler I have no difficulty about requirement (c). I find as a fact that he is genuine about his need for labour and that he is more likely to obtain a man of suitable quality if he can offer him a cottage. As a matter of law it is only necessary to satisfy me that the plaintiff wishes to have possession for this purpose — not that it is necessary. That leaves requirement (b). This is hotly in dispute. It is a pure question of fact. On the face of it the defendant has a strong case. Up until today the case was conducted on the basis that no notice was given — see the further and better particulars of the amended particulars of claim and exhibit D3. When counsel for the plaintiff saw his client it became apparent that his case was not as pleaded and that the notice had been lost. He therefore sought leave to file further and better particulars of his claim. In cross-examination of Mr Fowler the position became even clearer, ie, the solicitors had not just lost the notice but had deliberately thrown it away (this was Miss Bennett). Mr Fowler said that he accepted that he had been mistaken in not raising the matter before but did not wish to upset his solicitors. I then heard evidence from Mrs Fowler and Amanda Fowler. Both gave evidence in support that there was a written agreement. In the course of the hearing documents — P2 and P3 — were produced to show that in November 1983 there was an issue between the Fowlers and the solicitors as to the document. Having heard the evidence of all three Fowlers I have decided to accept their evidence despite the obvious difficulties in their way. I accept that Mr Fowler is telling me the truth about the notice and the signing of it. I heard Mr Minchin’s evidence which was largely credible, although I am surprised to hear him say that he did not raise with Mr Fowler the question of the cottage being required in the future for an agricultural labourer. Reluctantly I conclude that the defendant is not telling the truth and I find that due notice was given. All the elements of Case 16 are made out and the plaintiff is entitled to possession. In this court today Mr Lewis submits first of all that the learned judge’s finding of fact that a written document purporting to be or answering the requirement of subpara (b) of Case 16 was given was not a finding which any reasonable tribunal could have reached on the evidence adduced at the hearing taken in conjunction with the pleaded case and all the circumstances which I have indicated. Second, he submits that in any event if there was a written document, there was not a notice which satisfied the requirements of subpara (b) of Case 16. The plaintiff relies on a document alleged to be in the terms of the additional further and better particulars of the amended particulars of claim, but that would not satisfy the requirements of subpara (b). At best it is merely an undertaking that the defendant would vacate on 28 days’ notice if the plaintiff required it for a farm worker. That would be unenforceable. Quite plainly this case took a very unusual course. Here was a plaintiff with a pleaded case which specifically proceeded upon the basis that no written notice had been given. It does not only rest with the pleadings, for at p 18 of the bundle there is a letter from the plaintiff’s solicitors dated March 26 1986 addressed to the defendant’s solicitors. Para 2 is in these terms: In respect of supplying you with a copy of the original agreement between Mr and Mrs Fowler and Mr Minchin in 1978 we again must say that we are unable to supply you with a copy as the agreement was handed over to Mr Minchin immediately after it was signed and no copy was retained by Mr and Mrs Fowler. Having said that the agreement in writing only relates to such matters as rent and repairs and we accept that it makes no reference to the grounds on which possession may be recovered, as to be capable of comprising written notice as required by the relevant section of the Rent Act 1977. Accordingly it is quite appropriate for Mr Lewis to categorise the course of proceedings as being ‘remarkable’. I must say, speaking for myself, that I am troubled by the way this case proceeded because clearly there was a dramatic and fundamental last-minute change in the plaintiff’s entire case alleging that there was a written notice which would comply with subpara (b) of Case 16. Moreover it involved a clear conflict between the plaintiff himself and his solicitor, who was a partner in a very responsible firm of solicitors. The solicitors had also assured the defendant on the plaintiff’s behalf that no notice in writing had existed. These facts alone, it seems to me, would provide a reason for this court to be so disquieted by the course of events as to consider very seriously ordering a rehearing. It is quite plain that counsel for the plaintiff was placed in a personal position of great embarrassment and that the defendant was taken by surprise although his counsel did not himself seek an adjournment. There are in my judgment real grounds for questioning the finding of fact of the learned judge. Of course this court does not see and hear the witnesses: the learned judge is an experienced judge, and this court does not lightly interfere with findings of fact. However, there is in this case a ground of appeal which in my judgment is well founded, and it is the ground which forms the second matter which Mr Lewis argued in the course of his address. That is that, accepting for the purposes of this argument that a written agreement in the terms of the additional further and better particulars was brought into existence even though no copy was produced to the court, it would still not comply with the requirements of subpara (b) of Case 16, which I will read again: (b)  not later than the relevant date, the tenant was given notice in writing that possession might be recovered under this Case. The argument is very simple. It is that even if there was a term or undertaking in the tenancy agreement in the terms set out at p 37 of the bundle, it could not satisfy subpara (b) because there it is not a notice that possession might be recovered under this particular provision. It is quite true that the notice does not have to follow any particular form, but in my judgment it must state quite specifically that possession might be recovered under the provisions of the Act: that is to say, to make it clear that a situation would obtain which would be a compulsory situation so far as the tenant was concerned. In my111 judgment the alleged term of the so-called agreement that the defendant would vacate on 28 days’ notice if the plaintiff required it for a farm worker is no more than a voluntary undertaking that he would do so. It does not indicate or suggest that the plaintiff would be entitled to go to court to require him to give up possession and indeed would do so if he required the dwelling for a farm worker. However informal the phraseology might be, it would have to satisfy that requirement. Accordingly, in my judgment, even if a written agreement was brought into existence in the terms of the additional further and better particulars, it did not comply with subpara (b). Mr Lewis argued in addition that subpara (c) was not satisfied because the plaintiff had in effect merely said that it would be more attractive to a prospective employee to be able to make him the offer of a cottage. However, it seems to me that so far as that ground of appeal is concerned it fails: the learned judge dealt with that satisfactorily and indeed the note of the evidence shows that the plaintiff was saying in terms that he now required to have a labourer because of his own ill health. He said in terms that he would have to offer the cottage in order to be able to get the type of labour that he needed. I do not think there is anything in that ground of appeal. However, for the reasons that I have given in relation to the requirement for a notice in writing under subpara (b) this appeal should be allowed. Agreeing, RUSSELL LJ said: For the reasons rehearsed by my lord I, too, am very unhappy about the course which these proceedings took prior to and during the course of the hearing. As to subpara (b) of Case 16, I agree that, even on the basis that a notice in the terms set out in the further and better particulars of the amended particulars of claim was served, about which I have grave reservations, it would not comply with subpara (b). I agree with my lord, therefore, that this appeal must be allowed. The appeal was allowed with costs in the Court of Appeal and below; legal aid taxation of appellant’s costs.