UT Neutral citation number: [2014] UKUT 420 (LC)

UTLC Case Number: LRX/53/2014

                         TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

Right to manage – time – computation of time – contents of claim notice – specify date of intention to acquire right to manage to be “at least three months after that specified” under subsection s80(6) of the Commonhold and leasehold Reform Act 2002, section 80(7)

IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE

LEASEHOLD VALUATION TRIBUNAL

BETWEEN:

WINDERMERE COURT KENLEY

                                                        RTM COMPANY LIMITED                                   Appellant

and

SINCLAIR GARDENS INVESTMENTS

(KENSINGTON) LIMITED

Respondent

Re: Windermere Court, 44 Park Road, Kenley, Surrey CR8 5AR

                                            Before:  His Honour Judge Nigel Gerald

                                  Sitting at:  45 Bedford Square, London,WC1B 3AS

Determination on written representations

The following case is referred to in this decision:

Dodds v Walker [1981] 2 All ER 609 (HL)

DECISION

Introduction

1.             The appellant appeals against the 5^th March 2014 decision of the First-Tier Tribunal Property Chamber (Residential Property) (“FFT”) refusing its application for the appointment of a manager under the Commonhold and Leasehold Reform Act 2002 in respect of which the Deputy President of this Tribunal granted permission to appeal by way of review on 19^th June 2014 following refusal of permission to appeal the FFT on 14^th April 2014. There have been no written representations from the respondent.

2.             The facts can be shortly stated and are not in dispute. On 29^th August 2013 the appellant RTM company gave a claim notice to the respondent under section 79(6) of the 2002 Act, specifying that the respondent must respond to it by giving a counter-notice by 30^th September 2013, that it intended to acquire the right to manage the subject premises on 31^st December 2013.

3.             Section 80 of the 2002 Act prescribes the contents of the claim notice. There are two material provisions for these purposes:

4.             For these purposes, “the relevant date” is the 29^th August 2013, when the claim notice was given, and the 30^th September 2013 is the date specified under section 80(6). The dispute is whether or not the 31^st December 2013 specified date satisfied the requirements of section 80(7) or whether the earliest date it could have been was 1^st January 2014.

5.             The FFT held that the claim notice was invalid and so dismissed the application because the 1^st January 2014 was the earliest date which could have been specified under section 80(7). Having cited and sought to apply the leading authority of Dodds v Walker [1981] 2 All ER 609 (HL), which I shall refer to in a moment, the kernel of the decision is to be found in paragraph 10:

“10.        Accordingly the date of 30^th September 2013 at s80(6) should have led to a date of not earlier than 1^st January 2014 in s80(7), this being ‘a date, at least three months after that specified under subsection (6)’. The inclusion of the word ‘after’ means that the date must be after 31^st December 2013, being three calendar months from the date contained at s80(6), ignoring that day in calculating the period.”

6.             It is the appellant’s case that this was wrong, and a misapplication of the corresponding date rule as expounded in Dodds v Walker where Lord Diplock said at 610f (only the first paragraph of which was cited and purportedly applied by the FFT):-

       “My Lords, reference to a ‘month’ in a statute is to be understood as a calendar month. The Interpretation Act 1978 says so. It is also clear under a rule that has been consistently applied by courts since Lester v Garland (1808) 15 Ves 248 [1803-13] All ER Rep 436 that, in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning. It is equally well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or a specified number of months after the giving of a notice the general rule is that the period ends on the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given.

“The corresponding date rule is simple. It is easy of application. Except in a small minority of cases, of which the instant case is not an example, all that the calculator has to do is to mark in his diary the corresponding date in the appropriate subsequent month. Because the number of days in five months of the year is less than in the seven others the inevitable consequence of t4h corresponding date rule is that one month’s notice given in a 30-day month is one day shorter than one month’s notice given in a 31-deday month and is three days shorter if it is given in February. Corresponding variations in the length of notice reckoned in days occurs where the acquired noticed is a plurality of months.

“This simple general rule, which Cockburn CH in Freeman v Read (1863) 4 B&S 174 at 184, 122 ER 425 at 429 described as being ‘in accordance with common usage… and with the sense of mankind’, works perfectly well without need for any modification so long as there is in the month in which the notice expires a day which bears the same number as the day of the month on which the notice was given. Such was the instant case and such will be every other case except for notices given on the 31^st of a 31-day month and expiring in a 30 day month or in February, and notices expiring in February and given on 30^th or 29^th (except in leap years) of any other month of the year. In these exceptional cases, the modification of the corresponding date rule that is called for is also well established: the period given by the notice ends on the last day of the month in which the notice expires.”

7.             Lord Russell of Killowen said at 611f/g et seq:

  “My Lords, it is common ground that in this case the period of four months did not begin to run until the end of the date of the relevant service on 30^th September, i.e. at midnight 30^th September-1^st October. It is also common ground that ordinarily the calculation of a period of a calendar month or calendar months ends on what has been conveniently referred to as the corresponding date. For example, month period, when service of the relevant notice was on 28^th September, time would begin to run at midnight 28^th-29^th September and would end at midnight 28^th-29^th January, a period embracing four calendar months. It is to be observed that the number of days in the court month period in that example is in one sense inevitably limited by the fat that September and November each contains but 30 days. But the application of the corresponding date principle inevitably produces variation I the number of days involved, depending on the date on which a four-month notice is served and the irregular allotment of days to different months. Sometimes it is not possible to apply directly the principle, for instance if a four-month notice is served on 30^th October (the time beginning to run at midnight 30^th-31^st October), there being in February but 28 (or 29) days it is not possible to find a corresponding date in February and plainly a corresponding date cannot be sought in march; the application of the corresponding date principle in such case can only lead to the termination of the four-month period at midnight 28thFebruary-1^st March (or midnight 29^th February-1^st March in a leap year). That is an inevitable outcome.

  “Bridge LJ in his dissenting judgment in this case adopted a simple stance. Time he said (correctly) began to run at midnight 30^th September-1^st October. Stretching ahead were the four calendar months of October, November, December and January; the tenant was allowed the whole of those four calendar months including the whole of 31ast January; therefore the3 application made on 31^st January was made in time. I am with respect unable to accept this departure from the corresponding date principle simply because the period starts to run at the outset of the first of a month; a departure from the sound and well-established rule is not required in that one instance, as it is required in the example given of there being no corresponding date in February. For the tenant it was submitted that Templeman LJ had fallen into the error of including the whole of 30^th September in the period. I am clearly of opinion that the language used by him was not to that effect.

  “Accordingly I am of opinion that the corresponding date principle is applicable in this case, that the four-month period expired at midnight 30^th-31^st January, and that the application made on 31^st January was out of time and could not be entertained. Consequently I also would dismiss this appeal.”

8.             It is, in my judgment, plain from these opinions that the application of the corresponding date rule in this case requires that the date must be ‘after’ midnight on 30^th-31^st December 2013 from which it follows that specifying the date as being the 31^st December 2013 (being ‘after’ midnight on 30^th-31^st) satisfied the requirements of section 80(7) so that the claim notice complied with the provisions of section 80 of the 2002 Act.

9.             Where the FFT fell into error was in not treating the start-time as midnight on 30^th-31^st December, and not applying the long-established rule of common usage and great simplicity that the corresponding date in the following month or months is to be used as the date of calculation particularly where, as here, there is one. In this case, the first day three months “after” the 30^th September was the 31^st December. That was the effect of the decision in Dodds (supra) itself, albeit that it concerned determining that “four months after the giving of landlord’s notice” on 30^th September was 31^st January under section 29(3) of the Landlord and Tenant Act 1985.

10.         Whilst the Dodds v Walker (supra) concerned the provisions of the Landlord and Tenant Act 1985, there is no suggestion that the corresponding date rule should not be applied to interpretation of the 2002 Act. In this regard, the words of Lord Diplock at 611c (emphasis supplied) are apposite and equally applicable to the provisions of the 2002 Act:

“My Lords, I do not personally derive assistance from pursuing metaphysical arguments about attributing to the one day or the other the punctum temporis between 2400 hrs on 30^th September and 0000 hrs on 1^st October at which time began to run against the tenant. These seem to me quite inappropriate to the determination of the meaning of a statute which regulates the mutual rights of landlords and tenants of all business premises and is intended to be understood and acted on by them. It refers to periods to be reckoned in months and was passed at a time when the corresponding date rule had been recognised for more than a century as applicable in reckoning periods of a month after the occurrence of a specified event.”

11.         For those reasons, I allow the appeal and hold that the claim notice was valid and an effectual to exercise of the right to manage.  

                                                                                                Dated: 17 September 2014

                                                                                                His Honour Judge Nigel Gerald