COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE MACKAY)
(LOWER COURT No: 6QZ24801)
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE JACOB
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EDSTAFF LTD |
Respondent/Claimant |
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ANGLO OVERSEAS GROUP (PROPERTIES) LTD |
Appellant/ Defendant |
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WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The Respondent appeared by its directors Miss M Long and Miss M Langshaw.
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Crown Copyright ©
Lord Justice Wilson:
"It seems to me that it could be said that decisions of the two lower courts are so plainly wrong to make necessary, in the interest of justice, that the Court of Appeal should intervene. On that basis there would be a compelling reason for this court to hear the appeal."
"I have just spoken to my solicitor, and from a security point of view for ourselves, he has recommended that for the interests of both parties we have an exchange of letters to clarify the benefits of advance payment of rent.
Therefore, could you therefore confirm that following points in writing --
- The further advance payment is paid in consideration of the licence lasting for a further 12 months (till June 2006)
- That within the period stated, 1st January 2005-30th June 2006, the rent will remain static, and that we have therefore paid in full until June 2006.
- That the provisions in the Licence concerning termination are suspended within the stated period 1st January 2005 - 30th June 2006.
Many thanks, I await your response."
"The provisions of the licence concerning termination are suspended within the stated period until 31 May 2006."
"What she was concerned about was that if they paid another year's licence fee, what if Mr Billington exercises his company's rights under the licence agreement to give them a month's notice, and yet they had paid a significant sum of money (even more significant for a fledgling company) in advance. So she was seeking to remedy that and to give them the security they sought in that email of 9th February.
There was then a meeting between the parties following that e-mail when they discussed everything, and as a result of that meeting there was a letter written on 9 February and that deals with matters such as the brass plate. There is an endorsement at the bottom, a manuscript endorsement which is in Mr Billington's handwriting, and that endorsement, the Claimant says, incorporates what they agreed with him and which was the essential aspect they wanted concerning before they would pay another year in advance. That was that his company would waive the right to terminate on a month's notice. There is no endorsement which says that they would waive the right to give a month's notice.
I accept their evidence. I found it persuasive. They were paying now 18 months' licence fee in advance. They were getting some discount for it. They were retaining, in my judgment, their right to give a month's notice. There was no express agreement to waive it. On their evidence it was never discussed. There is nothing in the endorsement which suggests that the waiver extended to them."
"The learned District Judge preferred the tenant's view. It was open to him to do so. I think that the learned District Judge was right in the view that he took. I do not think that it was necessary to give commercial effect to the agreement, that it had to cut both ways and that if the tenant left the tenant, as it were, lost the money that it had paid in advance. Therefore, this appeal is dismissed."
Lord Justice Jacob:
Order: Application granted; appeal allowed.