England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND A STAY OF EXECUTION

		Royal Courts of Justice Strand London WC2 Tuesday, 21st May 2002

1. LORD JUSTICE TUCKEY: This is a renewed application for permission to appeal from a decision of His Honour Judge Mayor QC given in Leicester County Court granting Part 24 judgment in favour of the claimants. In doing so, he allowed an appeal from a deputy district judge.
2. The applicant was the tenant of a shop with living accommodation over at Briar Meads, Oadby, Leicestershire under a 20 year lease from the claimants which started on 24th June 1993. Later that year the applicant assigned its interest under the lease but remained liable under its covenants which, unfortunately, were not complied with by their or their successor's assignees. The position of a former tenant in such a situation is now governed by the Landlord and Tenant (Covenants) Act 1995. The only provision of that Act which is relevant for present purposes is Section 17 (2) which says:

"The former tenant shall not be liable ..... to pay any amount in respect of any fixed charge payable under the covenant unless, within a period of six months beginning with the date when the charge becomes due, the landlord serves on the former tenant a notice informing him -

(a) that the charge is now due; and

(b) that in respect of the charge the landlord intends to recover from the former tenant such amount as is specified in the notice ..... "

3. A Section 17 (2) notice was served by the claimants on the applicant on 25th July 2001. Proceedings were then issued on 20th August 2001 which claimed the charges referred to in that notice plus a number of other charges which were not. The later charges were the subject of a further notice served on 4th October 2001. I have now seen both these notices from which it is clear that each was served within the six month time limit required by Section 17 (2) in respect of the charges to which they relate. So the notices were valid. But as Section 17 (2) makes the service of a notice a pre-condition of liability, the applicant was not liable for the charges the subject of a second notice at the time the proceedings were started. Moreover the judge decided that a notice was not a pre-condition of liability. He was clearly wrong about this.
4. But where does this get the applicant? The claimants could have issued further proceedings after 4th October 2001 which could have been heard at the same time as the present proceedings. On the face of it, therefore, this point would have got them nowhere. No useful purpose would have been served by having a second set of proceedings other than that the applicant would have become liable for the costs of two claims rather than one.
5. Mr West, who appears for the applicant this morning, says there could well have been costs advantages to the applicant if the claim before the judge had been restricted to the claims, the subject of the first notice, and that is a compelling reason why this court should give permission. I cannot agree. It does seem to me that if the judge had correctly interpreted Section 17 (2) he could, there and then, have allowed the claimant to have issued a further set of proceedings and that would have left the applicant in a worse position than they ended up in the event. This is, after all, a second appeal and even if Mr West is right that there is some cost advantage to be gained by running this point further, I am not persuaded that it is a very substantial one. It certainly is not a reason for granting permission for a second appeal to this court.
6. The other point raised by the applicant relates to the judge's decision to decide the case summarily. As I understand their argument, they say that the district judge was not asked to give summary judgment and so, as this was an appeal from her order, it was not open to the judge to deal with the matter under Part 24. The application was undoubtedly made by the claimants to the district judge under Part 24. But as I understand Mr West's argument the case was argued before the district judge on the basis that the applicant simply had an arguable defence to the claim, and she was not invited to go further than to rule on that issue which she did, finding that they did have an arguable defence. So, says Mr West, the district judge never got to the point of making a Part 24 decision and so it was not open to the judge on appeal (whose function is limited to a review) to make such a decision.
7. I cannot accept Mr West's submissions. The district judge's order recites that the claimants' application for summary judgment be refused. The grounds of appeal state:

"The judge below thought the defendant had raised an arguable point of construction and an arguable point of law."

8. So far, Mr West would agree. It goes on:

"Those points were both suitable for summary determination, and it was wrong in principle for the judge to refuse to deal with them on that basis."

9. Here Mr West says the claimants were wrong because the district judge had not refused to deal with them on that basis.
10. I think this argument is splitting hairs. The application was undoubtedly under Part 24. The district judge's order recites that she refused to give summary judgment. I think it was open to the judge, on appeal, to give summary judgment in those circumstances if he felt it appropriate to do so, as he obviously did. His powers to do that are contained in CPR 52.11.3 (a) and CPR 52.10.1. For those reasons I do not think that this is a point upon which I should give permission to appeal to this court.
11. It follows from what I have said that on both points raised by Mr West I remain of the view which I expressed on paper that this is not a case in which permission to appeal should be granted and accordingly the renewed application is refused.
Order: Application refused