COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION(Beatson J)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE THOMAS
| LOVERIDGE & LOVERIDGE
|- and -
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr A Granville Stafford (instructed by Morton Fisher) for the Respondent
Crown Copyright ©
Lord Phillips, MR:
"1. Particulars of agreements
(1) this Act applies to any agreement under which a person ("the occupier") is entitled-
(a) to station a mobile home on land forming part of a protected site; and
(b) to occupy the mobile home as his only or main residence."
Section 2 of that Act provides:
"2. Terms of agreements
(1) In any agreement to which this Act applies there shall be implied the terms set out in Part 1 of Schedule 1 to this Act; and this subsection shall have effect notwithstanding any express term of the agreement."
Among the terms in Part 1 of Schedule 1 that fell to be implied into the licence agreement was the following:
"4. The owner shall be entitled to terminate the agreement forthwith if, on the application of the owner, the court-
(a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and
(b) considers it reasonable for the agreement to be terminated."
AMENDED PARTICULARS OF CLAIM
2. The following are express or alternatively implied terms of the defendant's licence to occupy the caravan site-
(i) that the mobile home stationed on his pitch was a caravan within the definition of section 29(1) of the Caravan Sites and Control and Development Act 1960 …
3. In breach of the term pleaded at paragraph (i) above, the structure stationed by the defendant on the pitch for which he has the benefit of a licence does not satisfy the definition of a caravan within the 1960 Act in that it is incapable of being moved from one place to another whether by being towed or by being transported on a motor vehicle or trailer. The condition of the structure is such that its weight and condition render it immobile. If any attempt were made to move the structure it would collapse.
4. The claimant has given notice of the need to remedy the breach of the licence agreement in particular on 24th January 1997. The defendant has had a more than reasonable period of time in order to remedy the breach of the said licence.
5. By reason of the matters aforesaid, the claimant is entitled to terminate the agreement forthwith and they claim an order for possession of the defendant's pitch.
1. The Defendant takes no issue with paragraphs 1 and 2 of the Particulars of Claim … .
2. The Defendant denies the matters set out in paragraphs 3 and 4 of the Particulars of Claim as he had work carried out to the mobile home at the request of the Claimants. However, the Claimants over the years caused problems when the Defendant has undertaken building work by not allowing the builders' lorries and skips lorries etc to come onto the site near to the Defendant's mobile home thus causing increased expense and delay to the Defendant when wishing to carry out work and the Defendant believes that the mobile home can be moved if it need be. However, the Claimants are making this claim to remove the unit and the Defendant for reasons other than the state of repair of his mobile home or the fact that it is blocking the roadway. His mobile home has always been on the plot from before the Claimants purchased the property from Wychavon District Council and the Claimants really wish to develop the site and have tried over the past few years to find reasons to remove the Defendant and his home.
3. The Defendant will say that proceedings were issued in June 1992 on similar grounds and were stayed in 1994 and that he has carried out all the works requested by the Claimants and repeats that it is his view that the Claimants are attempting to remove him from the site for reasons other than the fact that they allege he is living in a sub-standard mobile home and take no account of the Defendant's disability.
4. The Defendant accepts the matter of the notice referred to in paragraph 5 of the Particulars of Claim save that the works requested have been carried out and the Claimants have been trying to disrupt the work carried out by the Defendant for reasons set out in paragraph 3.
4A. The said acts of disruption were caused by the Claimants or others acting on their behalf. By reason of the said acts of disruption the Claimants are estopped from relying upon any failure (which is denied) of the Defendant to carry out works the subject of the said notice.
The reference to 'Paragraph 5 of the Particulars of Claim' refers, in fact, to paragraph 4.
"Dear Mr Healey
As you are aware, the owners of Doverdale Park have carried out considerable improvements to the site and have recently had further plans approved by Wychavon District Council to improve the site, increasing the number of mobile homes. The Council have issued a new site licence and, to comply fully with the planning requirements, it will be necessary in the near future to move your mobile home.
A recent survey of the site which you occupy, showed a number of contraventions to the site licence and structurally the property appeared to be in a poor condition.
It is suggested that you contact the Wychavon District Council with a view to re-housing in a more suitable unit. Alternatively, my clients are prepared to provide you with a mobile home for another site, free of charge.
Perhaps when you have had the chance to consider this matter, you will let me know your decisions, however at this stage, I would impress on you not to worry as my clients are anxious to make every effort to ensure that you have satisfactory housing accommodation in the future."
The Claimants accept that this was not a notice calling upon the Defendant to remedy a breach of the licence agreement.
The decisions of the courts below
"The words "accepts the matter of the notice" seem to me not to constitute a plain or express admission that the defendant in terms concedes the legal validity of the notice. I think if the defendant tried to deny as a matter of fact that the letter had been served, he might have been in difficulty, but that is not the argument. My conclusion is that this is not a plain or express admission that the defendant concedes the legal validity of the notice."
"17. The next point I hold is that I have a statutory requirement to be satisfied under paragraph 4 that after service of a notice to remedy the breach, whereas I am now in a position where I simply cannot make an order when I have actual knowledge in fact that the notice necessarily does not exist. It is open to the defendant to take the legal point now, as it is plainly a good and right one.
24. … It seems to me I am being asked specifically to assume jurisdiction on the basis of the consent of the parties when I have no jurisdiction and when I know that no good and valid notice in law was served. The failure, of course, to serve a notice specifying the breach and requiring the remedy is not some mere legal technicality, it is fundamental to the protection which Parliament has given to the occupiers of mobile homes. There has to be a notice specifying a beach of the agreement requiring the remedy. That gives an opportunity to the occupier to know what was wrong and have a chance to put if right. Failing to do that seems to me to be not some peripheral or technical matter but a fundamental matter which Parliament has understandably directed the court's attention to."
"22. I agree with the learned recorder that the language of the pleading is unhappy, but I have concluded that he did not fall into error in concluding that paragraph 4 did not constitute a plain and express admission that the defendant concedes the legal validity of the notice. This is because "the matter of the notice" can, and in the context should, be understood as referring to its receipt rather than its validity."
"23. Mr Blohm then relied on CPR 16.5(5) for the proposition that where a pleading does not address a matter and does not deal with it, it is implied by accepted. But this assumes that CPR 16.5(5) indirectly requires a person to deal with a matter of law in his pleading. As Mr Blohm's skeleton argument states, there is no rule of law that one cannot plead to an averment of law, but equally to require a person to deal with all matters of law in the pleading and to require this from the general words of CPR 16.5(5) is a large step.
24. The learned recorder rejected the proposition that this was really a factual averment that a person had been asked to remedy a specific breach which was not a matter of law but a matter of fact.
25. I agree that the conclusion that is sought to be drawn in respect of validity is not a matter of fact. …"
"35. The question is whether the court should look behind what the appellants submit is an apparent consent in the pleadings. I have found that there was no such admission in the pleadings. Had there been, however, the authority of the Housing and Rent Act cases is that the court should look behind it. In the present case, what the court has to be satisfied of is (a) there has been a breach, (b) there has been service of a notice to remedy, (c) there has been non-compliance, and (d) that it is reasonable for the agreements to be terminated. It would require the court, as the learned recorder recognised, to do mental gymnastics to ignore the fact, because of a pleading, that no valid notice has in fact been given."
The construction of the Amended Defence
Is the Court bound by the admission in the Amended Defence?
"It appears to me that the Legislature in reference to claims for possession has secured its object by placing the fetter, not upon the landlord's action, but upon the action of the Court. The language used is so clear and precise that there is in my opinion no room for cutting down or restricting the operation of the section. The Legislature has definitely declared that the Court shall exercise its jurisdiction only in the instances specified in the section, and in no others."
"Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular they are still critical to identify the issues and the extent of the dispute between the parties."
It is on the basis of the pleadings that the parties decide what evidence they will need to place before the court and what preparations are necessary before the trial. Where one party advances a case that is inconsistent with his pleadings, it often happens that the other party takes no point on this. Where the departure from the pleadings causes no prejudice, or where for some other reason it is obvious that the court, if asked, will give permission to amend the pleading, the other party may be sensible to take no pleading point. Where, however, departure from a pleading will cause prejudice, it is in the interests of justice that the other party should be entitled to insist that this is not permitted unless the pleading is appropriately amended. That then introduces, in its proper context, the issue of whether or not the party in question should be permitted to advance a case which has not hitherto been pleaded.
Lord Justice Buxton:
Lord Justice Thomas: