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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Aylwen v Takla [2000] EWCA Civ 108 (6 April 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/108.html
Cite as: [2000] EWCA Civ 108
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Case No: CCRTF 99/0850/B3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 6th April 2000
LORD JUSTICE BELDAM
LORD JUSTICE OTTON
and
LORD JUSTICE JUDGE
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BENNIE CHAVEZ AYLWEN |
Appellant | |
- and - |
||
LEILA ANTOINE TAKLA |
Respondent |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr Kim Lewison QC and Mr William Hansen (instructed by Lee & Pembertons London SW1X 0BX for the Appellant)
Mr Jonathan Gaunt QC and Mr Stephen Boyd (instructed by Louis Glatt & Co. London W1X 5AE for the Respondent)
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE BELDAM:
No. 1 Upper Brook Street, Mayfair, is a building divided into six flats. It was built in the late 1950s, on six floors, with one flat on each floor and a basement. The basement contains the caretaker's flat and six box rooms. At the front of the basement is the Porter's lodge which includes one of the original box rooms. Three smaller box rooms are situated down the right hand wall. Two which are larger are in the middle. The box rooms were not numbered or otherwise identified.
The freehold of the block was owned by one of the companies of the Grosvenor Estate. The six flats were let on long leases. The appellant, Mrs Aylwen, is the present head lessor. The respondent, Mrs Takla (the defendant), is the assignee of the lease of Flat 3 on the third floor. The lease of Flat 3, made on 31st December 1958, demised the flat on the third floor, together with "Box Room No. 2 identified on the plan annexed to the lease" for a term expiring on 15th December 2019. The plan referred to showed Box Room 2 as the third of the box rooms backing onto the wall.
The lease of Flat 3 was the only lease which included a box room in the premises demised. The leases of the other five flats made no mention of a box room but apparently it was the original intention that those of the lessees who wished to do so should be allowed to use one of the box rooms in the basement for storage in return for a storage charge.
The subject matter of these proceedings is the Box Room now numbered 5, one of the larger box rooms in the middle of the basement. In 1991 when the defendant took the assignment of the lease of Flat 3, she apparently believed that Box Room 5 was Box Room 2 described in her lease and shown on the plan annexed to it. Had she compared the position of the box room shown on the plan as No. 2, she would have realised that it was not Box Room 5 but when she went to view Flat 3 she was shown Box Room 5 as the box room which was said to "go with" the flat and in discussion with her solicitors at the time of the purchase the matter was not clarified. The agent who showed her the flat was acting on behalf of a Dutch company Vanol BP ("Vanol"). The sale particulars made no mention of a box room. On another occasion when she returned to view the flat and the box room she was shown the box room by the caretaker, a Portuguese lady Mrs Martens. The lease of Flat 3 had been assigned to Vanol in November 1983.
Employees of Vanol had used Box Room 5 to store suitcases and boxes but no-one from Vanol nor any of its employees or representatives gave evidence about the circumstances in which they came to use Box Room 5.
In these proceedings the appellant sought possession of Box Room 5 from the defendant who claimed to be entitled to occupy it in lieu of Box Room 2. The defendant's claim was based either on the ground that she had acquired a possessory title to the Box Room 5 through occupation of it by herself and her predecessor in title for a period of at least 12 years before the proceedings were issued or, alternatively, she claimed that the appellant was estopped from denying her right to possession.
On 25th May 1999 His Hon. Judge Cook decided as a preliminary issue that the appellant's claim failed and he gave judgment for the defendant holding that Box Room 5 had become part of the premises demised to her.
The case lasted four days and, as the judge said, one might ask why a case concerning a box room could justify such resources and expense but the case was important to both parties. To the plaintiff because she wished to convert the basement into an additional flat and the position of Box Room 5, if it formed part of the defendant's demise, would effectively prevent her from doing so. The plaintiff said the box room was important to her because she purchased the remainder of the term from Vanol in 1991 believing that Box Room 5 was part of the premises she was acquiring. The storage space in Box Room 5 was, in fact, larger than the space in Box Room 2 or indeed of any of the other box rooms and the size of the box room was a significant factor in her decision to buy the flat.
The judge's task was not made easier by the fact that there was no evidence about the original disposition of the box rooms, apart from the fact that No. 2 was in fact demised with Flat 3, that by 1980 the occupation of the box rooms had become hopelessly muddled and that the appellant's husband who might have been able to assist was not available to give evidence. He and the appellant had separated in 1984. The appellant herself gave evidence. The judge found that, although she was an honest witness, she was a witness who in at least one instance and arguably two was shown to be mistaken in her recollections. The judge said that this was scarcely surprising and not in the least blameworthy but as the two errors related to significant dates he was unable to accept that the appellant's description of the occupation of the box rooms over the years when she was familiar with the premises was accurate. In the result the judge based his findings largely on the contents of some letters from one of the occupiers, Mrs Leighton, to agents, Hinton & Co., on internal memoranda of Messrs. Hinton & Co. and from inferences which he saw fit to draw from these documents which were admitted under the Civil Evidence Act 1995.
The main ground of appeal is that the judge drew inferences from these documents and from the evidence generally which were not justified, so I must state the relevant facts in somewhat greater detail.
Mrs Leighton became the occupier of Flat 4 in about 1959. The appellant and her husband lived in Flat 1 on the first floor from 1979 to 1981. The appellant's evidence was that she and her family, including Lady Aylwen, made considerable use of the basement for storage of the family effects. This use included use of Box Room 5. Lady Aylwen's effects were still being stored in the basement when she died in the spring of 1989.
Mrs Leighton assigned the lease of Flat 4 to Professor Myers in 1986. Professor Myers said that from the time he occupied the flat he had the use of Box Room 2.
The defendant's case, as previously stated, is that at the time she took the assignment of the lease of Flat 3 from Vanol the agent and the caretaker, Mrs Martens, showed her Box Room 5 as the box room then used by the occupiers of Flat 3. She invited the court to infer that Box Room 5 had been occupied no later than 1986 by Vanol who had used it continuously and adversely and that she as their successor had also done so. By reason of adverse possession, and it was said of the doctrine of encroachment, she was entitled to keep it for the remainder of her lease. Her case was put on the alternative ground that the appellant, as successor to Mr Aylwen, was estopped from denying that Box Room 5 was the box room contained in the demise of Flat 3. The judge recorded the submissions of her counsel in these terms.
"That what was as she alleges done to alter the position on the ground which she came to know, not least by information from the landlord's caretaker, Mrs Martens, constituted a representation on the basis of which she took the assignment, therefore acting to her detriment."
I return to the facts.
The judge said it was probably most convenient to start with Mrs Leighton who did not give oral evidence and who was probably no longer alive. However Civil Evidence Act Notices had been given to make admissible certain statements contained in letters written by her between 1979 and 1984. The judge regarded them as having considerable weight, being written as they were by somebody with "no axe to grind in the present proceedings". The correspondence begins in December 1977 when Mrs Leighton and another resident, Mrs Laykin, had complained to the agents Hintons that the basement was full of furniture. Hintons replied promising to clear the furniture as soon as possible. On 29th November 1979 Mrs Leighton wrote that she had met Mr Aylwen that day and that he said he knew nothing of belongings of hers which had been removed.
In an internal memorandum from Mr Hinton at South Audley Street to Mr Slater at Connaught Street Mr Hinton said on 3rd December 1979:
"4/1 Upper Brook Street.
I am enclosing in original, a letter from Mrs Leighton together with a copy of my reply which will be self-explanatory.
There appears to be an unholy mix-up with the cupboards in the basement but Mr Aylwen is, as I pointed out in my letter, making a determined effort to get each cupboard identified and numbered and this I hope will be an end of the matter."
The letter to which Mr Hinton referred was addressed by Mr Hinton to Mrs Leighton the same day. After apologising for the mystery as to what had happened to her goods which "may have been removed from one cupboard to another", he denied all knowledge of it. He said that Mr Aylwen was endeavouring to identify each cupboard and would then have them numbered so that there would be no confusion in the future. He added:
"There is, in the basement, a store cupboard for each flat and one of them will formally be numbered and allocated to flat 4."
After seeking details of property removed, he pointed out that management of the property was now being dealt with by the Connaught Street office. On 18th December Mrs Leighton wrote again. She said that on visiting her storeroom in the basement all her belongings had gone. There were two boxes in the store room which the housekeeper thought belonged to the gentleman on the ground floor. He came down and removed his boxes but did not say where her things were. She said:
"From whom did he get a key to my store room that I have rented for almost twenty years? Who gave him permission to put his boxes in?"
She re-iterated that she had approached Mr Hinton and then Mr Aylwen who had no knowledge of this having happened. She then gave a description of the contents which she said had been taken.
On 19th January 1980 she made a further complaint to Hintons and this time she said the key had been given to the gentleman on the second floor. She asked them to return her spare keys and claimed compensation for goods which she had lost. On 31st January she wrote again. She had not had a reply. She said that Hintons as managing agents were responsible "as my key was given to the gentleman who owns the ground floor flat". She said she was not going to pay until they attended to the matter:
"We never see a representative from you here to check up on our building if that is what we pay you for what do you do?"
She said:
"It was and is my store."
She had apparently instructed solicitors to deal with the matter on her behalf.
On 6th May she complained to Hintons about her bathroom ceiling and water pouring down every night from overflows "as there is no-one in residence". She repeated her complaint that her goods had been removed from her storeroom that "my husband and I had for twenty years".
The next letter, which is undated, is marked as having been received on 13th July 1982. Mrs Leighton had apparently asked for details of the £500+ "I pay for services charges". She added:
"Mr Aylwyn who came to see me about my baggage room in the basement said he would let me know. He wished to take over my baggage room and give me another. I do not need one as when my goods were stolen from there I decided to store nothing there. Mr Aylwyn gave me a little compensation for them. He has always been very helpful. He told me to get in touch with Mr Boot if I need any help so perhaps when Mr Boot comes to inspect No. 1 flat the house keeper will bring him up to flat 4."
The next letter, undated but received on 10th July 1984, complained of property missing from her flat. In the last paragraph she said:
"I have not used my basement room since you asked me to let those moving into flat 3 so why do I now pay for an empty room?"
Finally on March 31st 1985 she wrote:
"I have no box room or storage room in the basement and I am billed for that. When flat 3 was sold or let years ago I was asked for flat 4 storage room as I never used it I said yes then someone moved in here when my friend RIP died suddenly in flat 3 and are using it. Since I am not storing anything there why do I have to pay. Will you please attend to this as I find expenses very high but I like living here.
Thank you for attending to the front door lock. We have had many robberies here.
When you send my next bill please deduct for the storage room. The house keeper will I hope know if anyone is using it."
To these letters the judge said should conveniently be added the following:
"Mrs Leighton sells to the Professor in 1986. The Professor's evidence is that he has box room 2 from then on. Except on the plan on Mrs Takla's predecessor's lease nobody ever numbered the box rooms. The "new people in flat 3" referred to by Mrs Leighton are either Maguire who holds for a few months in 1983 or his assignees, Vanol, who acquire at the end of 1983 and hold until they sell to Mrs Takla in 1991."
The judge said that this evidence would appear to establish the following:
(1) In 1979 there was confusion as to who had which box room. Mr Aylwen was supposed to sort that confusion out. Whatever else he did that operation had not included any numbering or other systematic solution.
(2) Some time before 1984, 1983 is the only obvious time, somebody, either Mr Aylwen, or the agent, his agents, asked Mrs Leighton to let the people moving in to flat 3, either Maguire or Vanol, use box room 5.
(3) Mrs Leighton is offered another box room, unidentified, but does not use it.
(4) In 1985 Mrs Leighton records the new people in 3 who must by then be Vanol as using her box room 5.
(5) In 1986 the Professor is given 2 ... He is the successor of Mrs Leighton to her flat and the probability is that 2 is what Mrs Leighton was being offered.
(6) In 1977, and again probably less certainly in 1982, things are being stored in the basement outside the box rooms as well as in them.
(7) The loss of Mrs Leighton's effects could be firmly dated to 1979.
In addition he said:
(1) Vanol appear to have used [Box Room] 5 since they took possession in 1983; (2) at an irreducible minimum and not necessarily accepting Mrs Martens for this purpose (a) Vanol are in occupation of 5 by the time they come to sell so they must have taken occupation at an earlier date; (b) an obvious earlier date is when they arrived, confirmed to a point, at least, by Mrs Leighton; (3) the landlords are not using 4, 5 and 2 after 1986 at the latest, everybody accepts they are using 6. Nothing is known on the defendant's side about 1 and 3."
On the basis of these conclusions the judge then considered the evidence of the appellant and defendant.
He said of defendant's evidence:
"She established to my satisfaction the following: (a) that in 1991 she saw the box room three times, on the last occasion accompanied by a person who occupied, or had occupied the flat, and on the second by a representative of Vanol; (b) the box room was on the first occasion pointed out to her by Mrs Martens, the agent had the key to the box room and it fitted the lock, as indicated by Mrs Martens ... (c) when she saw the box room it was locked and when it was unlocked it was full of mixed contents; (d) the lady on the third occasion discussed with her that the wardrobes and the box room would remain."
As previously stated, Professor Myer's evidence was that he had used Box Room 2. He had subsequently made an application for a new lease which included Box Room 2. Obviously he did not believe that he occupied the box room as part of his demise.
The judge correctly directed himself that the burden of proving acquisition of title by adverse possession was squarely upon the defendant. He inferred that Vanol had occupation of Box Room 5 at the inception of their occupation of their flat in 1983. He concluded therefore that the defendant and her predecessor had had exclusive occupation of Box Room 5. He did not make any finding as to the basis of that occupation.
But in the course of considering the facts he said:
"I have little doubt that in the early days, the late 1970s, there was a good deal of anarchy. It certainly suggests that a number of the flats just did not use any box room at all and the Aylwen family used whatever there was to use."
However he came to a point where he said the anarchy started to recede and by the time Vanol had moved in he held that the evidence showed exclusive occupation.
It is, however, on the next aspect of his judgment that the issue in this case principally turns. He asked himself the question: was the occupation permissive? He directed himself that possession with permission is not adverse, and posed the rhetorical question:
"Why should it be inferred that whatever was done with Vanol amounted to permission i.e. I allow you to use this box room as against an indication factually, this is your box room?"
He pointed out that the particulars of sale when Vanol assigned to the defendant did not mention a box room at all and he said:
"So far as one can draw inferences I think I am entitled to draw the inference in the absence of evidence to the contrary that (1) Vanol bought the lease, and certainly that is the probability I find, took the box room on the footing they had a tenancy of it. (2) No other arrangement was communicated to Vanol. Certainly there is no evidence of it. (3) They are likely to have been shown box room 5 by somebody who would in all probability be either Mr Aylwen or the managing agent, plainly because it was Mr Alywen who re-arranged the box rooms. (4) There is no justification on the evidence for finding that Vanol were told anything specific beyond "this is yours", which would be information and not permission."
The validity of these inferences is challenged by the appellant.
Although it was not necessary in the light of his holding that the defendant had established adverse possession, the judge considered the alternative defence that the appellant was estopped by the conduct of Mr Aylwen, her predecessor, from denying that Box Room 5 went with Flat 3. By the time he did so, the judge had stiffened the inferences he was prepared to draw. First he said:
"(1) It is far more probable than not that Mr Aylwen, then the landlord, put Vanol in the position of being told that 5 was the box room that went with that lease. (2) Mr Aylwen, as he is the lessor, must have been taken to know the contents of his own lease and therefore Vanol were the people who had the demise of the box room.
(3) The position on the ground where Vanol occupied the box room apparently as theirs is therefore the creation of Mr Aylwen. (4) Anybody making enquiries as a purchaser from Vanol is likely to discover that Vanol were apparently the tenants of a box room and are occupying 5. (5) If they do make that discovery they will believe that Box Room 5 is the relevant box room. (6) Mrs Martens, in answer to enquiry from the defendant and the agents as to which was 3's box room, showed them 5. (7) On subsequent occasions Mrs Takla was shown 5 by Vanol's people as the box room occupied by Vanol."
Next the judge said:
"(1) Mr Aylwen created a pattern of occupation on the ground which unexplained (and it was not explained) clearly represented that box room 5 went with flat 3.
(2) He should have known and is to be taken to have known that flat 3 had a box room in its demise so far as this was relevant.
(3) He ought reasonably to have known that the tenants of flat 3 and any person taking them, for example, buying or taking a sublet who discovered the position on the ground ... would believe that 5 went with 3.
(4) Mrs Takla discovered the position ... and received the representation."
Accordingly the judge held:
(a) there was a representation of fact made by conduct; (b) it was a representation made in circumstances in which the representor so conducted himself the reasonable recipient would suppose it to be true and intended to be acted on; (c) it reached the mind of the representee. (d) the representor's successor in title is bound by it."
Finally the judge held that the defendant had acted to her detriment by taking an assignment of the flat in the belief that she was entitled to Box Room 5 when in fact the lease referred to Box Room 2.
It is pertinent to make two comments. The first is that there was no evidence that Mr Aylwen made any representation or created any pattern. The judge had earlier found that, whatever he did, it did not include any numbering or systematic solution. The second is that the position of Box Room 5 in no way corresponded with the position of Box Room 2 as shown on the plan attached to the lease. Why Mr Aylwen should be presumed to have represented to Vanol and the defendant that Box Room 5 "went with" Flat 3 with the intention that they should rely on him, when their own lease clearly showed it did not, I do not understand. There were no numbers upon the doors of the box rooms and in fact, for reasons which it is unnecessary to elaborate, the tenants who presently occupy Box Room 2 had agreed that if the defendant failed to establish adverse title or proprietary estoppel giving her the right to Box Room 5, she was entitled to Box Room 2.
The Grounds of Appeal.
Adverse Possession.
Whether or not a person has taken possession of land and whether that possession is adverse is a question of fact which depends on all the particular circumstances of the case. On the question of possession, Lord O'Hagan in Lord Advocate v Lord Lovat [1880] 5 AC 273 at 288 said:
"As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests - all these things, greatly varying as they must, under various conditions, are to be taken into account in determining sufficiency of a possession."
The box rooms in question were situated in the basement of the building which was overall in the occupation of the landlord and was used partly for living accommodation of the caretaker and for the common services such as the boiler room. None of the box rooms was numbered. Only one, No. 2, had been allocated as part of the premises demised with Flat 3. The other box rooms were apparently used with the permission of the landlord, express or implied, for storage purposes. It seems from the correspondence quoted by the judge that Mrs Leighton, at least, paid a charge, or regarded herself as paying a charge, for the use of Box Room 5. In the absence of special circumstances, use by the occupiers of the box rooms for storage purposes could not give rise to an inference that the tenants of the flats were in adverse occupation of the box rooms. There could not be any question of an ouster of the true owner by a wrongful possessor.
Paragraph 8(4) of Schedule 1 to the Limitation Act 1980 provides:
"For the purpose of determining whether a person occupying any land is in adverse possession of the land it shall not be assumed by implication of law that his occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latter's present or future enjoyment of the land.
This provision shall not be taken as prejudicing a finding to the effect that a person's occupation of any land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case."
I cite this provision, the origin of which is well known, merely to reinforce the point that in the absence of any evidence most people would assume that the occupation of a box room in the basement of a block of flats where the occupiers were tenants of the flats but not of the box rooms would be assumed to be with the permission or licence of the landlord. The mere fact that the tenant could lock the door of the storage room to exclude others with a key provided by the landlord would not affect the normal assumptions. If, as Mrs Leighton in the present case suggested, a charge was being paid for the use, there could be no question of possession being adverse. So I would approach the question whether adverse possession of Box Room 5 has been shown by the defendant not only on the basis that the defendant had to prove that she and her predecessors' occupation was adverse but that there would need to be convincing evidence to justify such a finding.
On this basis I consider the judge's findings based upon the statements in Mrs Leighton's correspondence and Messrs Hinton's memoranda. As the judge rightly held, by 1979 there was undoubtedly confusion as to who used which box room. The judge found that Mr Aylwen did not, in fact, number any of the box rooms or come up with any other "systematic" solution. It seems reasonably clear that by 1980 no-one was aware that Box Room 2 was, in fact, part of the demise of Flat 3.
The judge's next finding was that sometime before 1984, 1983 being the obvious time, either Mr Aylwen or his agent asked Mrs Leighton to let the people moving into Flat 3, either McGuire or Vanol, use Box Room 5. This does not seem to accord with what Mrs Leighton had said in her letter of 13th July 1982. By that date Mr Aylwen had, according to her, already asked her to take over "my baggage room and give me another". The letter implied she had already agreed and that she did not need a box room. There is no evidence that Mrs Leighton was offered another storage room. She complained she was still being charged for the use of a storage room but in 1985 she recorded that the new people in No. 3 were using her box room and that she was still being charged for the use of a box room. Nor does the fact that Professor Meyers used Box Room 2 in 1986 provide any indication that Mrs Leighton had been offered Box Room 2.
Mr Lewison QC for the appellant was particularly critical of the judge's finding that when the defendant's predecessor in title Vanol went into possession of the box room in about 1983, whether as a result of the re-allocation of box rooms by Mr Aylwen or not, Vanol took the box room on the footing that they had a tenancy of it. Even if they were likely to have been shown the box room by Mr Aylwen or his agent as opposed to an agent instructed by the assignor there was no justification for the judge's finding that Vanol were not told anything beyond "This is yours". Mr Lewison said that this was a flimsy foundation erected on the judge's "interpretation" of Mrs Leighton's letters which could not support his conclusion that Vanol intended to occupy the box room as part of their title.
In truth there was no evidence to support these findings. Had Vanol believed that they were occupying a box room in accordance with the terms of their lease, it would have been obvious to them that Box Room 5 was not that box room. Why Mr Aylwen should have said "This is yours" with the intention of suggesting that it was part of the premises comprised in their lease as opposed to "You may use this one", I do not understand. The fact is that no-one from Vanol gave evidence and it is speculation to imagine what Mr Aylwen or anyone else might have said. I can find in Mrs Leighton's letters and in Hinton's memoranda no justification for the view that if Mr Aylwen gave permission to occupy Box Room 5 to a representative of Vanol he did so in any way other than allocating the box room for use by the occupiers. In short, if Mr Aylwen did give permission, it was to occupy the box room on the same basis as any of the other lessees were allocated a box room.
In my view, therefore, the defendant did not discharge the burden of showing that Vanol, her predecessor, had adverse possession of Box Room 5. Nor was there any basis on which the judge could hold that Vanol occupied it believing it to be Box Room 2. In short, any occupation of Box Room 5 by Vanol was permissive.
I come now to consider whether the judge was justified in holding that the appellant was estopped by the conduct of her predecessor, Mr Aylwen, from denying her paper title to Box Room 5.
Mr Lewison argued that a representation will not give rise to an estoppel unless it is clear and unambiguous. The judge considered that Mr Aylwen's conduct gave rise to a representation so the reasonable recipient would suppose that a representation made by him was true and intended to be acted on. But these findings also depend upon the statements he assumed Mr Aylwen must have made when Vanol's representatives first began to use Box Room 5. Insofar as the judge went further to hold that, by allowing Vanol's representatives to use Box Room 5, he had created conditions on the ground which enabled them by implication to represent that Box Room 5 was in fact Box Room 2 and so part of the demise with Flat 3, again I do not consider his findings justified. I think it impossible to spell out of the evidence a representation of fact made by Mr Aylwen and intended by him to be relied upon and in fact relied upon by Vanol that Box Room 5 was in fact Box Room 2. The truth of the matter is that at the time Vanol acquired Flat 3 there is no evidence that anyone appreciated that any one of the box rooms was part of the premises demised. Whatever Mr Aylwen did, he did not, as the judge said, number any of the box rooms. At the highest the judge inferred that either he or the agent said "this is yours". In my view it is going too far to hold that Mr Aylwen must be taken to have made a representation to every subsequent assignee of the premises who did not trouble to check the terms of his lease. I would allow this appeal. In my view the defendant failed to establish either of the grounds which she alleged barred the appellant's claim.
LORD JUSTICE OTTON: I agree that this appeal should be allowed for the reasons given by my Lord.
LORD JUSTICE JUDGE: I also agree.
(Order does not form part of the approved judgment)