ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE DIGHT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE PITCHFORD
| HILMI & ASSOCIATES LIMITED
|- and -
|20 PEMBRIDGE VILLAS FREEHOLD LIMITED
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Gerard van Tonder (instructed by John May Law) for the Respondent
Hearing date: 17 March 2010
Crown Copyright ©
Lord Justice Lloyd:
"(5) Any notice which is given under Chapter I or II by any tenants or tenant must—
(a) if it is a notice given under section 13 or 42, be signed by each of the tenants, or (as the case may be) by the tenant, by whom it is given; and
(b) in any other case, be signed by or on behalf of each of the tenants, or (as the case may be) by or on behalf of the tenant, by whom it is given."
"36A(1) Under the law of England and Wales the following provisions have effect with respect to the execution of documents by a company.
(2) A document is executed by a company by the affixing of its common seal.
(3) A company need not have a common seal, however, and the following subsections apply whether it does or not.
(4) A document signed by a director and the secretary of a company, or by two directors of a company, and expressed (in whatever form of words) to be executed by the company has the same effect as if executed under the common seal of the company.
(4A) Where a document is to be signed by a person as a director or the secretary of more than one company, it shall not be taken to be duly signed by that person for the purposes of subsection (4) unless the person signs it separately in each capacity.
(6) In favour of a purchaser a document shall be deemed to have been duly executed by a company if it purports to be signed by a director and the secretary of the company, or by two directors of the company ... A "purchaser" means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property.
(7) This section applies in the case of a document which is, or purports to be, executed by a company in the name or on behalf of another person whether or not that person is also a company.
(8) For the purposes of this section, a document is (or purports to be) signed, in relation to a director or the secretary of a company which is not an individual, if it is (or purports to be) signed by an individual authorised by the director or secretary to sign on its behalf.
36AA(1) A document is validly executed by a company as a deed for the purposes of section 1(2)(b) of the Law of Property (Miscellaneous Provisions) Act 1989, if and only if
(a) it is duly executed by the company, and
(b) it is delivered as a deed.
(2) A document shall be presumed to be delivered for the purposes of subsection (1)(b) upon its being executed, unless a contrary intention is proved."
"19. With the greatest respect to the learned judge in the City & County case I have come to the conclusion that Mr van Tonder's submissions on this issue are to be preferred for the following reasons. Section 99 of the 1993 Act requires a participating tenant to sign an initial notice personally. As Peter Gibson LJ held in Cascades and Quaysides Ltd v Cascades Freehold Ltd  L&TR 23, at paragraph 16, "… it is not in dispute that the purpose of section 99(5) in requiring the tenant himself to sign it and not allowing an agent to do so, must have been so that the tenant really knew what he was doing". In other words the focus of section 99(5) is not on the method by which an initial notice is signed but on the person by whom it is signed and, in my judgment, the word "personally" must be construed in that context. A company, being an artificial person, can only act through agents and whether it "signs" a document via a single officer or "executes" a document in accordance with section 36A of the 1985 Act it does so through agents. Thus compliance with section 99(5) has to be via an agent of the company in any event. However, whenever a company acts through the agency of an officer authorised to so act on its behalf the company has, in my judgment, personal knowledge of the transaction in which its officers are acting. In doing so the purpose of section 99(5), as explained by Peter Gibson LJ, will have been fulfilled."
". . . I consider that the better approach is to look at the particular statutory provisions pursuant to which the notice is given and to identify what its requirements are. Having done so, it should then be possible to arrive at a conclusion as to whether or not the notice served under it adequately complies with those requirements. If anything in the notice contains what appears to be an error on its face, then it may be that there will be scope for the application of the Mannai approach, although this may depend on the particular statutory provisions in question. The key question will always be: is the notice a valid one for the purpose of satisfying the relevant statutory provision."
Chadwick LJ approved that passage as follows:
"In my view, that passage encapsulates, succinctly and accurately, the correct approach."
Later, at paragraph 28, he set out what he considered to be the correct question as follows:
28. I return, therefore, to the question posed by the judge in the present case: "whether a reasonable tenant could be misled into thinking that the landlord's counter-notice did not admit the right to a new lease?" In my view that was not the correct question. The correct question is: "does the counter-notice served by the landlord state that the landlord admits that the tenant had on the relevant date the right to acquire a new lease of his flat?" And, if that question is answered in the affirmative, there is the further question: "does the counter-notice served by the landlord state which (if any) of the proposals contained in the tenant's notice are accepted by the landlord and which (if any) of those proposals are not so accepted?"
"3. Law. To go through the formalities necessary to the validity of (a legal act, e.g. a bequest, agreement, mortgage, etc.) Hence, to complete and give validity to (the instrument by which such act is affected) by performing what the law requires to be done, as by signing, sealing, etc."
2.2 The law of England and Wales makes an important distinction between instruments which are executed in "solemn form" as deeds, and other instruments which are generally referred to as being in "simple form" under hand. Where the instrument is a contract, this is recognised by the distinction made between a contract executed as a deed, which is a specialty, and an instrument under hand, which is a simple contract.
2.3 An individual may therefore generally execute an instrument such as a contract either in solemn form as a deed, or in simple form under hand. Where the maker is a corporation, the position is a little more complicated. A corporation has a legal status distinct from that of its members, but, not being a natural person, can only act either by resolution of its members in general meeting, or by its directors or other agents. One purpose of the common seal of a corporation has traditionally been to provide a means by which the will of the corporation can be expressed, although in practice authority to affix the seal has long been delegated to the directors. It was formerly the basic rule that all contracts made by a corporation had to be made under the common seal, but this has long ceased to be so."
Lord Justice Pitchford
Lord Justice Ward