ON APPEAL FROM THE UPPER TRIBUNAL (LANDS CHAMBER)
George Bartlett QC, President
 UKUT 20 (LC)
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE MACFARLANE
THE RIGHT HONOURABLE SIR STANLEY BURNTON
| PHRJ NEWBOLD
|- and -
|THE COAL AUTHORITY
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Michael Barnes QC and Eian Caws (instructed by David Cooper & Co) for the Respondent
Hearing dates: 7th and 8th May 2013
Crown Copyright ©
Sir Stanley Burnton:
The relevant legislative provisions
"3. Notice of subsidence damage
(1) The [Authority] shall not be required under section 2(1) or (4) above to take any remedial action or make any payment in respect of the cost of emergency works, unless the owner of the property or some other person who is liable to make good the damage in whole or in part—
(a) has given to the [Authority] the required notice with respect to the damage within the period allowed by this section; and
(b) has afforded the [Authority] reasonable facilities to inspect the property, so far as he was in a position to do so.
(2) The required notice with respect to any subsidence damage is a notice stating that the damage has occurred and containing such particulars as may be prescribed; and references in this Act, in relation to any subsidence damage, to a damage notice are references to such a notice with respect to the damage given within the period allowed by this section.
(3) The period allowed by this section for giving a damage notice with respect to any subsidence damage is the period of six years beginning with the first date on which any person entitled to give the notice had the knowledge required for founding a claim in respect of the damage.
(6) In this Act—
"the claimant", in relation to any subsidence damage, means the person who gave or, as the case may be, was the first person to give a damage notice to the [Authority] in respect of the damage, and includes any successor in title of his;
"any other person interested", in relation to any such damage and any time, means any person other than the claimant who, not less than 7 days before that time, gave such a notice to the [Authority] in respect of the damage, and includes any successor in title of any such person.
4. Initial response to damage notice
(1) As soon as reasonably practicable—
(a) after receiving a damage notice; or
(b) where they receive two or more such notices in respect of the same damage, after receiving the first of them,
the [Authority] shall give to the claimant, and to any other person interested, a notice indicating whether or not they agree that they have a remedial obligation in respect of the whole or any part of the damage specified in the damage notice.
"A notice under section 3(1)(a) of the Act (notice of subsidence damage) shall contain the particulars specified in Schedule 1 to these Regulations."
Schedule 1 is as follows:
"The particulars referred to in regulation 2 are–
1. The name and address of the claimant and of any person acting on his behalf.
2. The address of the damaged property.
3. The type of property, including–
(a) if a house, whether detached, semi-detached or terraced; or
(b) if a flat or other part of a building used as a private-dwelling, whether purpose-built or a conversion.
4. If the property is not used exclusively for residential purposes, a brief description of its use.
5. Particulars of the legal interest of the claimant in the property.
6. The names and addresses (if known) of any other persons having a legal interest in the property (including mortgagees or, in Scotland, creditors under the heritable security) and the nature of their interest.
7. The approximate date of construction of each damaged part of the property.
8. Brief particulars of the damage.
9. The date, or approximate date, when the claimant first noticed the damage.
10. Whether the claimant has obtained a report on the condition of the property with a view to the possible preparation and prosecution of a damage notice and, if so, brief particulars of that report.
11. The days and times of the day when the property may be inspected.
12. Whether the property is ecclesiastical property or is otherwise held for religious purposes.
13. Whether the property is of a kind mentioned in section 19(1) of the Act (ancient monuments and listed buildings)."
"1. The claimants, who are brothers, seek compensation "Likely to be in excess of £100m", as it is put in the notice of reference, under the Coal Mining Subsidence Act 1991 for the costs of remedial works to the mansion house and ancillary buildings at Wentworth Woodhouse, of which they are the freehold owners as tenants in common. Notice of reference was given following the service under section 3 of the Act of two damage notices, one dated 1 February 2007 and the other dated 3 August 2009, and their rejection by the Coal Authority. The Authority, the respondents, say that neither damage notice was valid; firstly because each was given by the first claimant, Paul Newbold, alone, rather than by the three brothers as owners of the property; and secondly because in four respects it failed to give particulars prescribed for such purposes by Regulations made under the Act. The claimants deny that the notices are invalid. They say that they were validly given by Paul Newbold as agent for himself and his brothers; or alternatively that they were given by the brothers; that any failure to give prescribed particulars has not rendered the notices invalid; and that in any event the Authority are estopped from contending that the notices are invalid or alternatively debarred from so contending under the doctrine of legitimate expectation. …
2. Wentworth Woodhouse is a mansion built on a vast scale in the mid-18th century with a number of substantial buildings and structures in its grounds. It is in a sadly dilapidated condition. It was owned and occupied for many years by the Earls Fitwilliam but during the Second World War and afterwards it was occupied mainly by the military and then by various public bodies. It was acquired in 1988 by a person called Wensley Haydon-Baillie. Mr Haydon-Baillie got into financial difficulties, and on 4 June 1999 the property was acquired from his mortgagee, Bank Julius Baer, by Macaw Properties Ltd (Macaw), a company ultimately owned and controlled by the three Newbold brothers. The freehold was transferred by Macaw to the Newbold brothers on 2 December 2005, subject to the grant of a lease for 20 years from 1 December 2005 in favour of a company, SW1 Nominees Ltd, which held the lease on trust for Macaw. Small parts of the property were held under sub-leases.
3. Extensive coal mining took place in this part of Yorkshire in the vicinity of the Wentworth Estate from the 19th century up to about 30 years ago. Deep mining was carried out by private coal owners and then by the National Coal Board beneath the property from 1922 to 1962 and in the vicinity of the Wentworth Estate from 1922 to 1979. In addition opencast mining was carried out very near to the mansion in the late 1940s. On occasions in the past the Coal Authority or their predecessors accepted claims in respect of damage to the property caused by mining subsidence.
4. The claimants contend that extensive subsidence damage has occurred over the past decade to Wentworth Woodhouse. The two damage notices that were given were rejected by the Coal Authority (on 24 December 2008 and 14 September 2009) on the ground that any damage to the property which had occurred within the relevant period prior to the giving of the notice was not caused by coal mining operations and so was not subsidence damage for which they had any liability under the Act. Notice of reference to the Tribunal was given on behalf of Macaw on 22 December 2009 by their solicitors, David Cooper and Co, and a further notice of reference was given on behalf of the Newbold brothers on 20 January 2010. A statement of case in relation to both references was filed on 27 January 2010, and the Authority's reply was filed on 9 April 2010. The reply asserted that the claims were invalid. On 11 June 2010 I ordered that the issue of the validity of the notices should be determined as a preliminary issue and that a statement of case and a reply should be filed in relation to the issue. On 18 March 2011 I consented to an application made on behalf of Macaw that Macaw's case be withdrawn.
10. The first damage notice was given on 1 February 2007 and the second on 3 August 2009. Each of the notices used the standard form of notice created for this purpose by the Department of Trade and Industry (the department responsible for coal mining at the time of the first notice). In section 1 "Claimant's Name" was given as Paul Newbold and the address as Wentworth Woodhouse. A side note on the form said "If you are representing the claimant and completing this form on his or her behalf, please give your name and address". Mr Robert Talby, who completed the 2007 form, and Mr James Harbord, who completed the 2009 form, complied with this instruction, each giving his own name and the address of his firm, Ove Arup and Partners Ltd, the engineering consultants. In answer to the question "Are you a professional agent authorised to represent the claimant?" each ticked the "Yes" box.
11. Question 10 in section 4 of the form was: "Particulars of the claimant's legal interest in the damaged property"; and it contained two questions, each with a "Yes" box and a "No" box opposite them. The first question was "Are you the owner of the freehold?" and in each form the "Yes" box was ticked. The second question was "Are you a tenant and liable for repairs?" again with a "Yes" box and a "No" box. Neither the "Yes" box nor the "No" box was ticked in answer to this second question. A further option was also included: "Other, please give details"; and in response these words were added: "See attached note on ownership of site." Question 11 "Give full particulars of any other persons having an interest in the property e.g. Landlord, Tenant, Building Society or other provider of a mortgage" was left blank. The attached note said this:
"Macaw Properties Ltd owned the freehold of the site until December 2005, at which time the freehold was bought by the Newbold brothers with Macaw Properties Ltd retaining a 20 year lease of the vast majority of the site. The remainder being a small apartment within the house held by the Newbold Brothers on a 20 year lease."
12. Question 16 was: "Prior to the property being damaged, did the claimant pay to have an independent surveyor carry out a pre-mining survey?" and brief details were requested, including the date of the report and who prepared it, if the answer was yes. Here the following statement was made:
"A survey of the Estate was prepared in 1999 by Martin Stancliffe Architects/Gifford Consulting Engineers on behalf of English Heritage. The report was presented to the current owners as part of the sale of the estate."
13. The 2007 and the 2009 damage notices differed materially only in relation to the damage specified. The 2007 notice stated in response to Question 8 (Date when damage was first recognised) and Question 9 (Brief description of damage):
"8. By the present owners 2005
9. Evidence of recent cracking and movement to the main house and stableblock building, settlement and disturbance of walls, settlement of grounds and roads, including recently re-levelled road surfaces."
The 2009 notice stated:
"8. 2009. (Damage notice dated 2007 detailed damage noticed from 2005)
9. Movement of the north tower has displaced roof timbers, further damage to ceiling plasterwork, further movement and damage to terrace wall and cracking to the underground drainage system."
The first notice was signed by Giles Newbold, and the second was signed by Mr Harbord.
Transactions in the property
(1) Macaw entered into an assured shorthold tenancy agreement with Clifford and Dorothy Newbold, the parents of the brothers, for the letting of a suite of rooms in the mansion for a term on one year less one day from 1 December 2005.
(2) Macaw granted a lease of the property to SW1 Nominees Ltd for 20 years at a peppercorn rent.
(3) SW1 Nominees Ltd entered into a trust deed to hold the head leasehold of the property on trust for Macaw.
(4) A further suite of rooms was sublet by SW1 Nominees Ltd to Macaw. This suite was and continues to be occupied by the brothers.
(5) The freehold title was transferred by Macaw to Paul, Marcus and Giles Newbold as legal joint tenants on trust for themselves as tenants in common.
"I am writing, as the owner, to make you aware of the situation at [the property]. ….
Since I purchased the property in 1999 I have been restoring the house. …
I have invested millions of pounds restoring this magnificent house …"
"MN explained that the Newbold family bought the property in 1999 …. The family have a further 17 years remaining on the current lease in order to complete the restoration works."
"On 1 February 2007, a subsidence damage claim was submitted to the Authority by the Owners of the Wentworth Woodhouse estate (the Newbold family). …"
"Further to your letter dated 24 December 2008 addressed to Mr Newbold, I have been instructed by Mr Newbold, the owner of the above premises regarding various claim (sic) that have been made under the terms of the Coal Mining Subsidence Act 1991 for the various areas of damage on [the property]."
The Mr Newbold referred to was, of course, Paul Newbold.
"… I note that you are instructed to act for Mr Newbold regarding various subsidence damage claims …"
"We understand from the guidance on reporting subsidence damage … that when further damage is observed, the Claimant shall inform the mine owner, and a new claim form will be issued for the Claimant to complete. Please can you forward to Arup the relevant forms for completion by the property owner."
Having received a form, Mr Harbord completed it and sent it to Giles Newbold for review. The second damage notice was subsequently signed by Mr Harbord, dated 3 August 2009 and submitted to the Authority.
"The identity of "the Claimant" is unclear and locus standi is denied."
Paragraph 47 was as follows:
"47. The Respondent notes that there are two references to the Tribunal in relation to the property, firstly by Macaw and secondly by the Newbold brothers. However:
47.1 the Notice of Reference dated 22 December 2009 names the Claimant as Macaw said to be the property owner.
47.2 the Notice of Reference dated 20 January 2010 names the Claimant as [the Newbold brothers] said to be the property owners.
47.3 the only purported damage notices served by or on behalf of any of the above have been served in the name of Paul Newbold."
"When the original reference was made in the name of Macaw Properties Ltd, it was not clear to us who the Claimant should be. That is why we put in further references in respect of the Newbold family and asked the Tribunal to join the two together.
It is now apparent that the Macaw Properties Ltd claim is no longer appropriate and it is consequently withdrawn. We will inform the Tribunal accordingly."
The Statement of Case was subsequently re-amended to delete Macaw as a Claimant.
"… The main issue in this reference is compliance with the first requirement (the notices had to be given by the owner of the property), an issue which depends on the law of agency. … It is our contention that, for reasons which we will fully explain, (a) the notices given by Paul Newbold as agent for himself and Marcus and Giles Newbold and so were given by the owner as that expression is defined in the 1991 Act and (b) the notices contained all of the prescribed particulars."
"17. It follows from this analysis that in the present case where the Claimant as regards both the 2007 and the 2009 notice was described as Paul Newbold it was he who gave the notice and the notice was only given by the owner of the property if Paul Newbold when described as the Claimant and when giving the notice acted for himself and Marcus and Giles Newbold. In paragraph 3 on page 2 of the schedule of Suggested preliminary issues prepared by the Claimants for the purposes of the pre-trial review before the Tribunal it was said that the case for the Claimants was that the notices were valid notices (a) because the description of the Claimant as Paul Newbold was sufficient to render them valid or, alternatively, (b) because in giving the notices Paul Newbold acted as agent for himself and his two brothers, Marcus and Giles Newbold. For the reasons just explained the Claimants do not assert the first of these propositions. The case the Claimants is that the notices were valid because Paul Newbold in giving the notices as the claimant acted as agent for himself and his two brothers. It is for this reason that the law of agency and the facts relating to agency are critical for the purposes of this preliminary issue.
20. … The question is whether in giving the notice Paul Newbold acted for himself or acted for himself and his two brothers.
48. We submit that the essential point in the preliminary issue is whether Paul Newbold, in giving the 2007 and 2009 notices, and as "the Claimant" referred to in the two notices, acted as the agent of himself and his two brothers."
"22. … If at the date of the notices the legal estates or interests existing in the property were as set out at paragraphs 7A and 7B [of the Statement of Case], it is clear that the memorandum was not accurate (whether "generally" or at all). In that regard:
22.1 Whereas the memorandum stated that from December 2005 Macaw retained a 20 year lease of the vast majority of the site, such is simply not the case. It did not retain any such lease from December 2005. Rather, it granted a lease of the whole of the property to SW1 Nominees Ltd. And as at the date of the memorandum, such lease was still held by SW1 Nominees Limited.
22.2 Whereas the memorandum stated that the remainder was held by the Newbold brothers on a 20 year lease, such is simply not the case. There was no such lease. Rather, there was granted (a) to Clifford and Dorothy Newbold an assured shorthold subtenancy of a suite of rooms (being initially for 12 months and then continuing as a monthly periodic tenancy), and (b) to Macaw, a sublease of a further suite of rooms for a term of 20 years less three days.
22.3 The memorandum gave no indication of the other legal interests in the property set out …. including the legal charge held by St Ledger Investments Ltd."
It also pleaded that the information in the notices as to reports obtained by the Claimant was inaccurate, and that neither notice satisfied the statutory requirements.
The property interests at the dates of the damage notices
"15. … at the date of the first damage notice (1 February 2007) the freehold was vested in the three brothers and SW1 Nominees Ltd held a 20-year leasehold interest on trust for Macaw Properties Ltd subject to an underlease to Macaw of the brothers' suite of rooms. At the date of the second damage notice (3 August 2009) the freehold remained vested in the brothers but the headlease had been transferred to Macaw (and, it would appear, the underlease of the brothers' suite would have merged with it). In terms of the Act, therefore, at the date of the first notice the brothers were owners of the property and SW1 Nominees Ltd was a person who was liable to make good such damage as the property might have suffered through mining subsidence. At the date of the second notice the owners were the brothers and Macaw was a person who was liable to make good such damage. These were the persons who respectively at those dates were entitled to serve damage notices.
16. The note on ownership of the site attached to each damage notice was correct only to the extent that it implied that the freehold was vested in the brothers. It was inaccurate in stating that Macaw had from December 2005 "retained" a 20 year lease "of the vast majority of the site". From 2 December 2005 to 1 February 2007 the 20-year headlease, which was of the whole property, was vested in SW1 Nominees Ltd, and from the latter date it was vested in Macaw. The note was inaccurate also in stating that "a small apartment within the house [is] held by the Newbold Brothers on a 20 year lease." The 8-bedroom apartment was not leased to the brothers but to Macaw."
The Claimants' case before the President
The fifth submission
"23. The Authority said that each notice was invalid because it had been given by Paul Newbold alone, and he was not the owner of the property under section 3(1), and because it failed to give particulars that were required under the Regulations (specifically, particulars 1, identifying the claimant; 5 and 6 (details of legal interests in the property) and 10, which requires the claimant to state whether he has obtained a report on the condition of the property with a view to the possible preparation and prosecution of a damage notice and, if so, brief particulars of that report).
24. The claimants agreed that a damage notice on behalf of the owner of property had to be given by or on behalf of all co-owners and could not be given by one alone. Their case was that both damage notices were given by Paul Newbold as agent for himself and his brothers. The agency was an implied agency arising from the way in which the three brothers had conducted their property and other affairs over a number of years, and Paul, it was said, was the undisclosed principal. The Authority said that there was on the facts no such agency: that Paul did not act as agent; and that no implied agency existed. They said also that there was no room under the statutory provision for applying the law of undisclosed principals. As far as the alleged irregularities were concerned, the claimants said that none of them invalidated the notices, either because there had been substantial compliance with particulars, or because the non-compliance had been waived and no significant prejudice had been caused to the Authority by the irregularity, or because the irregularity was not one that invalidated the notices.
25. If their arguments on agency and non-compliance with the Regulations failed, the claimants sought to rely on estoppel. They said that from the date of the service of each notice the parties had shared the assumption that the notices were valid notices, and that this was demonstrated by the many actions carried out by them over a period in excess of three years, including the expenditure by both of substantial sums of money. The assumption that the notices were valid in law gave rise to an estoppel by convention. Alternatively, if estoppel was, as the Authority asserted, inapplicable because the Authority was a statutory body exercising statutory functions, the claimants relied on the same facts as giving rise to a legitimate expectation. The Authority said that no estoppel or legitimate expectation arose on the facts.
26. During his opening I asked Mr Barnes whether a contention that the damage notices on their face showed that they were being given on behalf of the three Newbold brothers formed any part of his case. Such a contention seemed to me possible in view of the references in each notice and the note attached to each notice to the "owners" and to the Newbold brothers. Mr Barnes said that he did not put his case in that way. In closing, however, Mr Barnes, advanced the argument that any reasonable person in the position of the Authority would have known that the insertion of Paul's name as the claimant was an error and would have known clearly what was intended, and that on those facts the notices were saved from invalidity. He called this his Fifth Submission. …"
"27. Mr Barnes's submission was founded on a short passage in the judgment of Nicholls LJ in Morrow v Nadeem  1 WLR 1381, a case about a notice under section 25 of the Landlord and Tenant Act 1954 that the Court of Appeal held to be invalid. The passage relied on (at 1387) is this:
"There might perhaps be an exceptional case in which, notwithstanding the inadvertent mis-statement or omission of the name of the landlord, any reasonable tenant would have known that that was a mistake and known clearly what was intended. But that is not this case."
That observation was quoted with approval by Nourse LJ in another case in which a section 25 notice was held to be invalid, Pearson v Alyo  1 EGLR 114 (at 115M-116A).
28. Mr Barnes suggested that the Authority, in the person of Mr Cammack, had indeed understood that the notices had been given on behalf of the three brothers. Writing a memorandum following his inspection of the property on 27 February 2007 Mr Cammack said that "the property has been owned by the Newbold brothers for the last 8/10 years"; and in writing to Mr Talby on 12 July 2007 he said: "I understand that the Newbold family have submitted a claim for damages to the entire Estate…" In cross-examination he said that the reference to the owners was to "Paul, Giles and Marcus as well"; that "the owners" were the Newbold family; and that by "the owners I meant Paul, Marcus and Giles (or perhaps Clifford)." Mr Barnes said that the notices ought accordingly to be construed as having been given by the brothers as owners of the property.
29. The question, in my judgment, is indeed simply one of construction. What Nicholls LJ was saying in the short passage relied on was that a reasonable tenant would, in the exceptional case he had in mind, have understood from the notice what was intended, so that the notice was to be construed in that way. How, then, are the notices in the present case to be construed?
30. Under section 3(1) of the Act a damage notice may be given either by the owner of the property or by some other person who is liable to make good the damage in whole or in part. Indeed a notice can only be given by such a person, and the Authority's duty under section 2(1) to take remedial action does not arise unless it is so given. Whether a notice, purportedly given under this provision, has been given by the owner or by some other person who is liable to make good the damage or by neither of these must indeed be a question of construction of the notice. The question is: on a proper construction of the notice, was it given by the owner? or by some other person who is liable to make good the damage? or by neither of these? Of course, if the notice was purportedly given by a person who said that he was acting on behalf of the owner or some other person who is liable to make good the damage, it will not have been given by the owner or that other person unless the person said to be acting on his behalf had authority to do so. That, however, is a separate question. In addition "the required notice" must state such particulars as are prescribed, and prescribed Particular 1 is the name and address of the owner; but again it is a separate question whether that particular has been given and, if it has not, whether the failure renders the notice invalid.
31. There is no doubt, in my judgment, looking at each notice, that it was a notice that purported to have been given by the owner rather than by some other person who was liable to make good the damage or by neither of these. This is clear because the answer given to the question "Are you the owner of the freehold?" was "Yes" and the question "Are you a tenant and liable for repairs?" was left unanswered. Moreover it is also apparent that, despite a single name being entered in the "Claimant's Name" box, the owner on behalf of whom the notice was given was in fact plural. That appears from the note on ownership attached to the notice which stated that the freehold became vested in "the Newbold brothers" in December 2005; by the answer to question 16, which said that the Martin Stancliffe report of 1999 was presented to "the current owners" as part of the sale of the estate; and, in the 2007 notice, by the answer to question 8, which said that the damage had first been recognised "by the current owners" in 2005.
32. As a matter of construction of the notices in relation to section 3(1), therefore, they purported to be given by the owners and not just by one of them. That is what a reasonable recipient would have understood; and indeed the evidence shows that Mr Cammack for one did understand this, and there is nothing to suggest that anyone else in the Coal Authority understood it otherwise. Whether the notices were in fact given by the owners accordingly depends on whether Arup (Mr Talby in relation to the 2007 notice and Mr Harbord in relation to the 2009 notice) had the authority of the owners to give the notice."
Paul Newbold as agent for himself and his brothers
"108. … I accept that all the matters that Mr Barnes relies on are or may be relevant to the question whether there is an estoppel that binds the Authority. What I cannot accept is the subject-matter of the estoppel for which Mr Barnes contends. His contention is that the Authority are estopped from denying that notices given, as he contends that they were given, by Paul Newbold as claimant are valid notices. The effect of this would be to make Paul the claimant for the purposes of the Act. But he could not be a claimant under the Act since he is neither the owner nor a person liable to repair the property. Estoppel could not operate so as to confer on him, a person lacking the interest required by the Act, a statutory right that he did not have or to require this Tribunal to give effect to the Act as though he did have that right: see Secretary of State for Employment v Globe Elastic Thread Co Ltd.  AC 506. In any event the claimants in these proceedings are the three brothers as owners of the property and not Paul Newbold alone."
The defects in the notices
"78. I conclude that the Authority's contention that the notices were invalid must fail. Each damage notice was an owner's notice, given on the owners' behalf by their agents, Arup; and the particulars required by the Regulations were either sufficiently provided to or waived by the Authority or, to the extent that they were not provided or waived, such non-compliance does not invalidate the notices."
The issues on this appeal
(1) it was not properly open to the President to uphold the fifth submission of the Respondents, since that case had not been pleaded or addressed in evidence.
(2) in any event, the finding of the President that the damage notices were given by the three Newbold brothers as owners of the property was wrong as a matter of law; and
(3) his conclusions that none of the defects in the notices invalidated them and in so far as they otherwise would have done the defects the Authority waived the defects were wrong as a matter of law.
(1) that Court of Appeal may interfere with the President's finding on their fifth submission only if his finding, which was one of fact, was not reasonably open to him on the evidence; and
(2) that the President erred in rejecting their case based on estoppel.
(1) The preliminary issues
Who gave the notices?
(1) It was given by Paul Newbold alone, since it was believed that that was sufficient for all the purposes of the Act. The fact that Arup were identified as authorised to represent, not the owners, but the claimant, is consistent with this.
(2) It was given by Paul in respect of his interest in the property.
(3) It was given on behalf of the Newbold brothers, who were identified as the owners. That does not explain why Paul alone was named as the claimant.
(4) It was given for Macaw, stated to have a 20-year lease of the vast majority of the site. The President held that SW1 Nominees Ltd was liable to make good the damage to the property, and it follows that if Macaw had been the legal lessee, as stated in the notices, it would have been under that liability. However, it is not clear that the Authority when it received the notice knew who were the shareholders and directors of Macaw. If they did not, they would not have thought that the notice was given by Paul Newbold on its behalf.
(5) It was given for everyone in respect of all their interests in the property: the Newbold brothers in respect of the freehold, Macaw in relation to its lease and the Newbold brothers in respect of the small apartment.
Other defects in the notices
Lord Justice McFarlane:
Lord Justice Longmore:
"unless the owners of the property or some other person who is liable to make good damage in whole or in part … has given to the [Coal Authority] the required notice with respect to the damage …"
Sub-section 2 then says that "the required notice" is "a notice stating that the damage has occurred and containing such particulars as may be prescribed".
"1. The name and address of the claimant and of any person acting on his behalf;
5. Particulars of the legal interest of the claimant in the property.
6. The name and addresses (if known) of any other persons having a legal interest in the property … and the nature of their interest."
"the person who gave or, as the case may be, was the first person to give a damage notice to the [Coal Authority] in respect of the damage."
Section 3 does not itself require anything of "a claimant" as such but section 4 requires the Coal Authority, once they have received a damage notice, to give "the claimant, and to any other person interested, a notice indicating whether or not they agree that they have" any remedial obligation and, if so, what kind of remedial action the Authority propose to take. It is, therefore, "the claimant" with whom the Authority deal once a damage notice has been served.
"COAL MINING SUBSIDENCE ACT 1991
which is made available to anyone who wishes to use it. The user is invited to fill in 17 separate entries which include the prescribed particulars but extend further than those particulars. Particulars 1, 5 and 6 are able to be entered in Boxes 1, 10 and 11 respectively. Box 1 of the form of the first damage notice as filled in gave the claimant's name as Paul Newbold together with his address and telephone numbers. At the head of the second page which included Boxes 10 and 11, there was a rubric:-
"Please reply to all the following questions and sign at the bottom of the page."
Box 10 was headed:-
"Particulars of the claimant's legal interest in the damaged property."
There was then a first question:-
"Are you the owner of the freehold?"
With a box to tick yes or no. The yes box was ticked.
The Second question was:-
"Are you a tenant and liable for repairs."
Neither box was ticked.
There was then a line saying
"Other, please give details."
Under this was:-
"See attached note on ownership of site."
Box 11 asking for full particulars of any other person having an interest in the property. That was left blank.
"To supplement question's 10 and 11
Macaw Properties owned the freehold of the site until December 2005, at which time the freehold was brought [sic] by the Newbold brothers with Macaw Properties retaining a 20 year lease of the vast majority of the site. The remainder being a small apartment within the house held by the Newbold brothers on a 20 year lease."
The damage notice form was then signed in Box 17 by "G. Newbold" under the declaration "I/WE declare that to the best of my/our knowledge and belief the above information is true". A second damage notice was given in materially identical terms on 3rd August 2009.
(1) they were not given by either the owner of the property or some other person who is liable to make good the damage; and/or
(2) the particulars contained in boxes 1, 10 and 11 were inaccurate.