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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Brennan v Kettell & Ors [2002] EWCA Civ 1700 (12 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1700.html Cite as: [2002] EWCA Civ 1700

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LIVERPOOL DISTRICT REGISTRY
(HIS HONOUR JUDGE MADDOCKS)

		Royal Courts of Justice The Strand London Tuesday 12 November 2002

Tuesday 12 November 2002

THE VICE-CHANCELLOR:

1. The application before us is made by the respondent to the appeal, the Royal Bank of Scotland, for an adjournment of the hearing, pending the determination of proceedings that they instituted two weeks ago in the Liverpool District Registry.
2. The circumstances in which the application is made are briefly as follows. Mrs Brennan, the claimant in the original action, was the tenant under a lease for 999 years of Unit 14 on Wheatlands Business Park, Wallasey, Merseyside. Her lease was granted by the registered proprietor, New Way Developments Limited. New Way Developments Limited had granted a debenture to the Royal Bank of Scotland. The Royal Bank of Scotland permitted the lease to take effect to Mrs Brennan, and effectively surrendered its debenture to that extent.
3. There was a muddle in respect of the plans attached to the lease and the counterpart. They were not the same. That gave rise to problems later on when a second lease was granted, this time by the Royal Bank of Scotland as legal mortgagee to the Kettells, who were defendants to the main claim. Under the terms of that lease there appeared to be included in Unit 13, according to the plan attached to it, what has been called "the disputed area", which is part of the premises which on one view of one plan had been included in the first lease to Mrs Brennan.
4. This gave rise to all manner of proceedings. It is not necessary to describe them in any further detail. There came before Judge Maddocks, sitting as a Deputy High Court Judge in November 2001, a claim by Mrs Brennan against the Kettells for, amongst other relief, rectification of the lease to her, so as to include within the property demised to her the disputed area which otherwise appeared to be comprised in the second lease to the Kettells. That claim was successful and Judge Maddocks directed that the first lease should be rectified, and the registered title to the second lease should be likewise rectified; but he did not make an order for rectification of the second lease itself because no such claim had been made in the proceedings.
5. In the main proceedings there was a Part 20 claim brought by the Kettells against their lessor, Royal Bank of Scotland. This was based on a covenant for quiet enjoyment contained in the second lease which was in somewhat unusual terms in that it provided in conventional terms that the lessee may peaceably hold and enjoy the premises during the term without any interruption by the lessor or any person rightfully claiming under or in trust for the lessor or by title paramount.
6. The Kettells sought damages from the Royal Bank of Scotland for breach of that provision on the footing that Mrs Brennan's claim to the disputed area was a claim which ousted them by title paramount; alternatively, that Mrs Brennan claimed under the Royal Bank of Scotland because the Royal Bank of Scotland had surrendered the property comprised in the first lease from its debenture.
7. The judge concluded that there was no claim under the covenant for quiet enjoyment. The appeal before us was seeking the determination of this court as to whether the judge had been right so to conclude.
8. Apparently (but the court was not so informed), some two weeks ago the Royal Bank of Scotland instituted a second set of proceedings in the Liverpool District Registry whereby it claimed against the Kettells for rectification of the second lease, the title to which had already been rectified pursuant to the order of Judge Maddocks, by excluding from the demised premises the disputed area which was by now comprised in the lease to Mrs Brennan.
9. The consequence of that claim if made good would be that the covenant for quiet enjoyment could not apply to the disputed area because it would not be, and never would have been, part of the premises demised by the second lease. It would therefore be a complete answer to the issues raised on the appeal pending before us.
10. As I have indicated, the court was not told of these proceedings until the appeal was opened by Mr Riddle on behalf of the Kettells. Miss Bristoll, on behalf of the Royal Bank of Scotland, explained to us that the claim had been issued on 30 October in the Liverpool District Registry, and she applied for an adjournment of the hearing of the appeal before us to enable those proceedings to be concluded. This was opposed by Mr Riddle on behalf of the Kettells on three grounds. He pointed out that the costs incurred to date in the proceedings between the parties was wholly disproportionate to anything which was any longer at stake. He indicated that no explanation had been vouchsafed as to why these new proceedings had been issued when they were, some ten months after the judgment of Judge Maddocks, and told us (which was not denied by the solicitors on the other side instructing Miss Bristoll) that when the proceedings were served about ten days ago, the solicitors enquired whether it was the intention of the Royal Bank of Scotland to apply for an adjournment of the hearing before us and was told that it was not.
11. In these circumstances the application for an adjournment could only be granted on the most stringent terms as to costs and otherwise. I have wondered whether it would be appropriate to grant the adjournment at all, given the way in which the application was made, the stage at which it was made, and the previous discussions that there had been the solicitors for the parties. I am persuaded though that it is so fundamental to the issues between the parties that it would be right to accede to the application for an adjournment. In order to avoid any delay, we sought the consent of both parties to us hearing the rectification claim on the basis of the findings of fact made by Judge Maddocks, but counsel for the Kettells was unable to obtain instructions on the point. He had not attended court today prepared to argue it, and would in any event be being asked to give up the possibility of striking out the second action on the basis that it was an abuse of the process of the court. Accordingly, that possible alternative is not available to us and the question is whether to grant the adjournment or not.
12. As I have indicated, for my part I would do so because the issue raised in the second action is absolutely crucial to the determination of the issues between the parties on the appeal before us. I would myself impose terms that the costs of and occasioned by the adjournment on an indemnity basis be paid by the Bank and that the Bank should be required to give an undertaking to prosecute the second action with all possible despatch, subject only to any delays caused by an application to strike out the proceedings brought by the Kettells as foreshadowed by them. On those terms I would grant the adjournment.
13. LORD JUSTICE MUMMERY: I agree.
14. LORD JUSTICE TUCKEY: I also agree.
ORDER: As contained in the agreed minute of order: upon the respondent by its counsel undertaking that it will prosecute with all reasonable despatch the claim begun in the High Court of Justice, Chancery Division, Liverpool District Registry, Claim No 1998 B No 369 (subject to any application that may be made by the appellants for the dismissal of the claim as an abuse of process), it is ordered that (1) this appeal be adjourned until after final determination of the claim; and (2) the respondent do pay the costs of and occasioned by the adjournment summarily assessed on the indemnity basis in the sum of £6,000.