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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Wellcome Trust Ltd v Bellhurst Ltd [2002] EWCA Civ 790 (16 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/790.html Cite as: [2002] EWCA Civ 790 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WEST LONDON COUNTY COURT
(HIS HONOUR JUDGE COWELL)
Strand London WC2 Thursday 16 May 2002 |
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B e f o r e :
LORD JUSTICE CLARKE
____________________
THE WELLCOME TRUST LIMITED | ||
Claimant/Appellant | ||
- v - | ||
BELLHURST LIMITED | ||
Defendant/Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0207 421 4040
Fax: 0207 831 8838
Official Shorthand Writers to the Court)
appeared on behalf of the Appellant
MR HOWARD SMITH (Instructed by Messrs Amhurst Brown Colombotti, London, SW1Y 6BJ)
appeared on behalf of the Respondent
____________________
Crown Copyright ©
"Where in accordance with subsection (1) the immediate landlord under the lease of a qualifying tenant of a flat is not the landlord in relation to that lease for the purposes of this Chapter, the person who for those purposes is the landlord in relation to it shall conduct on behalf of all the other landlords all proceedings arising out of any notice given by the tenant with respect to the flat under section 42 (whether the proceedings are for resisting or giving effect to the claim in question)."
"(1) A claim by a qualifying tenant of a flat to exercise the right to acquire a new lease of the flat is made by the giving of notice of the claim under this section.
(2) A notice given by a tenant under this section ('the tenant's notice') must be given-
(a) to the landlord, and
(b) to any third party to the tenant's lease."
"...any person who is a party to the lease apart from the tenant under the lease and his immediate landlord."
" Where any person-
(a) is a third party to the existing lease, or
(b) (not being the landlord or tenant) is a party to any agreement collateral thereto,
then (subject to any agreement between him and the landlord and the tenant) he shall be made a party to the new lease or (as the case may be) to an agreement collateral thereto, and shall accordingly join in its execution; but nothing in this section has effect so as to require the new lease or (as the case may be) any such collateral agreement to provide for him to discharge any function at any time after the term date of the existing lease."
"Tenant's notice may be given to any of the other landlords
1. The tenant's notice under section 42 shall be regarded as given to the competent landlord for the purposes of subsection (2)(a) of that section if it is given to any of the other landlords instead; and references in this Chapter to the relevant date shall be construed accordingly
Tenant to give copies of notice
2 - (1)Where the tenant's notice is given to the competent landlord, the tenant shall give a copy of the notice to every person known or believed by him to be one of the other landlords.
(2) Where the tenant's notice is, in accordance with paragraph 1, given to one of the other landlords, the tenant shall give a copy of the notice to every person (apart from the recipient of the notice) known or believed by the tenant to be either the competent landlord or one of the other landlords.
(3) The tenant's notice shall state whether copies are being given in accordance with this paragraph to anyone other than the recipient and, if so, to whom.
Recipient of notice or copy to give further copies
3 - (1) Subject to sub-paragraph (2), a recipient of the tenant's notice or of a copy of it (including a person receiving a copy under this sub-paragraph-
(a) shall forthwith give a copy to any person who-(i) is known or believed by him to be the competent landlord or one of the other landlords, and(ii) is not stated in the recipient's copy of the notice, or known by him to have received a copy; and(b) if he knows who is, or he believes himself to be, the competent landlord, shall-(i) give a notice to the tenant stating who is the person thought by him to be the competent landlord, and(ii) give a copy of it to that person (if not himself) and to every person known or believed by him to be one of the other landlords.
(2) Sub-paragraph (1) does not apply where the recipient is neither the competent landlord nor one of the other landlords.
(3) Where a person gives any copies of the tenant's notice in accordance with sub-paragraph (1)(a), he shall-
(a) supplement the statement under paragraph 2(3) by adding any further persons to whom he is giving copies or who are known by him to have received one; and(b) notify the tenant of the persons added by him to that statement.
Consequences of failure to comply with paragraph 2 or 3
4 - (1) Where-
(a)the competent landlord r any of the other landlords does not receive a copy of the tenant's notice before the end of the period specified in it in pursuance of section 42(3)(f), but(b)he was given a notice under section 41 by the tenant and, in response to the notice under that section, notified the tenant of his interest in the tenant's flat,
the tenant's notice shall cease to have effect at the end of that period.
(2)Where-
(a) sub-paragraph (1) does not apply, but(b) any person fails without reasonable cause to comply with paragraph 2 or 3 above, or is guilty of any unreasonable delay in complying with either of those paragraphs,
he shall be liable for any loss thereby occasioned to the tenant or to the competent landlord or any of the other landlords."
"Alternatively the Section 42 Notice incorrectly states that the intermediate landlord is Henry Alfred Pitt-Roche whereas the Landlord understands the headlease was assigned to Charlgrove Securities Limited on 6th December 1993. The Section 42 Notice also fails to state whether it was served on the present intermediate landlord or its successor or at all."
"It is perfectly clear that if Mr Edgson comes within the definition of 'any third party to the tenant's lease', the notice is defective."
"....it would be entirely futile for any document or notice to be served upon him because there is nothing that he could do about it; no obligation would be imposed on him on the service of notice, and no right would arise in his favour on the service of a notice. Service of a notice upon him would be a complete waste of time and, in short, he would simply have no interest in being served with a notice."
"It is not right that a third party does not have an interest in the tenant's notice. In this case the third party has covenanted with the landlord and with the tenant to repair and insure the premises. It will, subject to making an agreement to the contrary with both the landlord and tenant, be a party to and have obligations under the new lease if one were to be granted."
"....that contrast is sufficiently great to make it clear that if the case comes within subparagraph (1) of paragraph 4 the notice ceases to have effect, but if it comes within subparagraph (2) it does not affect the validity of the notice, yet enables loss to be recovered."
"...to apply to the notice the approach to construction laid down by the House of Lords in Mannai in the contextual setting of the statutory objective in requiring the giving of a notice in the prescribed form."