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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 >> Slamon v Planchon [2004] EWCA Civ 799 (26 June 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/799.html Cite as: [2004] EWCA Civ 799, [2004] 4 All ER 407, [2005] 2 WLR 257, [2005] Ch 142

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL
JUSTICE CENTRE
HH Judge Wakefield
CHY03159

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th June 2004

Lord Justice Rix:

1. This appeal concerns the exception in favour of a "resident landlord" built into the collective enfranchisement provisions of the Leasehold Reform (Housing and Urban Development) Act 1993 as amended by the Commonhold and Leasehold Reform Act 2002 (the "Act").
2. The claimants are long leaseholders of two flats in a house known as 50 Woodsome Road, London NW5 (the "house"). They seek to acquire the freehold of the house pursuant to section 22 of the Act. The defendant is the freeholder of the house. Her mother is the occupier of a third flat in it. The defendant seeks to resist collective enfranchisement of the house in reliance on the resident landlord exception set out in sections 4(4) and 10 of the Act. She relies on her mother's occupation over the year prior to the claimants' notice under the Act, together with her own interest in the freehold of the house over a long period stretching back to before the time of its conversion into flats.
3. It is common ground that, subject only to the adequacy of the defendant's interest in the freehold over the period back to the house's conversion, the conditions for the application of the resident landlord exception are met. This appeal concerns the remaining dispute about the adequacy of that interest: Does it meet the particular requirements of the statutory test? The issue turns on a pure point of statutory interpretation.
4. At trial HH Judge Wakefield decided that issue in favour of the defendant. The claimants appeal.

The Act

5. Section 1 sets out the basic right of collective enfranchisement (the "right") conferred on qualifying tenants to acquire the freehold of the premises in which their flats are situated at a price to be determined in accordance with the provisions of the Act. Section 3 describes the premises to which that right applies, eg self-contained buildings in which the qualifying tenants hold at least two flats and at least two-thirds of the total number of flats (as here the claimants hold two out of the three flats in the house). Section 3, however, is made subject to section 4, which lists premises excluded from the right. Section 4(4) contains the exception relevant to this case, the resident landlord exception:

"(4) This Chapter does not apply to premises falling within section 3(1) if the premises are premises with a resident landlord and do not contain more than four units."

6. Section 10 is headed "Premises with a resident landlord" and sets out the relevant conditions for the applicability of this exception. As amended in 2002 it provides as follows:

"(1) For the purposes of this Chapter any premises falling within section 3(1) are premises with a resident landlord at any time if –

(a) the premises are not, and do not form part of, a purpose-built block of flats;

(b) the same person has owned the freehold of the premises since before the conversion of the premises into two or more flats or other units; and

(c) he, or an adult member of his family, has occupied a flat or other unit contained in the premises as his only or principal home throughout the period of twelve months ending with that time.

(4) Where the freehold of any premises is held on trust, subsection (1) applies as if –

(a) the requirement in paragraph (b) were that the same person has had an interest under the trust (whether or not also a trustee) since before the conversion of the premises, and

(b) paragraph (c) referred to him or an adult member of his family."

7. The Act provides for the service of a notice in which the qualifying tenants make their claim upon the reversioner (section 13) and for the reversioner's counter-notice (section 21). Section 1(8) defines "the relevant date" in relation to any claim to exercise the right to collective enfranchisement as "the date on which notice of the claim is given under section 13". Section 10(1) might well have referred to "the relevant date" but does not. Nevertheless it is common ground that the section 10(1) requirements of continuous ownership and twelve months' occupancy have to be met as of a period ending with the giving of the section 13 notice.

The notices

8. The claimants, who are long leaseholders of the ground and second/third floor flats, served their notice addressed to the defendant on 6 November 2002. The proposed purchase price was £1,500 on the basis that the defendant would require a leaseback of the third flat, which was on the first floor of the house. If a leaseback was not required the proposed purchase price was £175,000.
9. The defendant's counter-notice dated 9 January 2003 did not admit the claimants' right to enfranchise, and relied on the resident landlord exception. The counter-notice specified her mother's occupation of the first floor flat for the twelve months' prior to the claimants' notice. There is no dispute about that. Indeed, the judge found that the mother has lived at the house since about 1982 and has lived there ever since, although in different parts of it. It was to emerge, however, that there was a dispute about whether the defendant could bring herself within section 10(1)(b) and/or 10(4) relating to the necessary continuity of the reversioner's interest since before the time of conversion.

The facts relating to the defendant's interest in the house

10. The defendant, Nicole Planchon, has since 9 September 1999 subject to the two long leases been the legal and beneficial owner of the house. She had previously held the whole beneficial interest under a declaration of trust made by her mother on 7 April 1998. On 9 September 1999 her mother transferred to her the legal title as well, and she became the registered proprietor. She remained so at the date of the claimants' notice under the Act.
11. The history of the defendant's (and her family's) interest in the house is as follows.
12. The defendant has two siblings, a brother Neil and a sister Dana. Her mother's name is Linda. The mother and her three children appear to have been the relevant family unit. On 18 July 1980 the house was bought and, it seems, taken in the name of the defendant's mother, brother and sister, although it appears from the judgment below that only the brother and sister may have been registered as proprietors on 4 August 1980. At that time the defendant was a minor. It appears to have been the intention at the time of purchase that the three siblings, including the defendant, should share in the ownership of the house. At any rate on 4 December 1980 a declaration of trust was signed by the mother, brother and sister (the "trustees") recording that the house was transferred to them on 18 July 1980 as beneficial joint tenants but that they had agreed to sever the joint tenancy and to hold the house as tenants in common in equal shares. The deed said that as from 18 July 1980 the trustees would hold the house on trust to sell and to hold the net proceeds of sale in trust for the trustees as tenants-in-common in equal shares. Moreover the mother declared that she held her share in the house on trust for the defendant.
13. So at least from 18 December 1980 the defendant held a one-third beneficial interest in the house under a trust. But she was not at that time a legal proprietor of the house.
14. In 1982 the defendant came of age and thereafter on 6 July 1984 the freehold title was transferred into the names of the defendant and her sister. I am not sure what her beneficial interest would have been at that time, but I suppose it would have been a half. Whatever it was, the defendant was then both a legal and beneficial co-owner of the house.
15. The judge found that the conversion work started after 1980 but before 1984, but was not completed until 1987 at the earliest or 1991 at the latest. The judge took the completion of the conversion works as the relevant time for the purpose of the statutory test of "since before the conversion", and it has not on this appeal been submitted that he was wrong to do so. Thus at the time of conversion the defendant was a legal and beneficial co-owner of the house. Moreover, at this time, because there were co-owners, the freehold of the house was necessarily "held on trust" (to refer to the words in section 10(4)).
16. Following the transfer in July 1984 there was no change to the defendant's interest in the house until 30 March 1998, when the two sisters transferred the house into their mother's sole name "in consideration of natural love and affection". Both sisters appear at that time to have been living in the USA, for the defendant's signature is witnessed in California, and her sister's signature in Indiana. In the meantime the 125-year lease on the ground floor flat had been created for a term commencing on 29 September 1996 by an instrument dated 16 October 1996.
17. On 7 April 1998, that is to say eight days after the transfer of the house by the daughters to the mother on 30 March 1998, the mother executed a further declaration of trust. The deed was executed by both the defendant and her mother: in it the defendant was described as the "donor" and the mother as "trustee". It referred to the "conveyance of even date with this deed" (presumably a reference to the transfer in fact dated 30 March). Under the deed the mother declared that she held the house on trust for the defendant. So, as stated above, as of this date the defendant was beneficially entitled under trust to full ownership of the house, but its registered legal title was in the mother. Also as stated above, on 9 September 1999 the house was transferred into the defendant's sole name, so that she now became the sole legal and beneficial owner of it. In the meantime, the other long lease had been granted, in respect of the second/third floor flat, on 12 October 1998, also for a term of 125 years from 29 September 1996. The mother's evidence explains that the reason for the transfer of the house into her name was for the purpose of selling that long lease.
18. Looking therefore at the whole of the relevant period from before the conversion down to the date of the claimants' notice, it would seem that the defendant both began and ended that period as a legal and beneficial owner of the freehold of the house (although only a part-owner at the beginning of that period), but also that in the middle of that period, namely from 30 March 1998 until 9 September 1999, she had at most only a beneficial interest on trust. There is also a question-mark whether for the eight days from 30 March to 7 April 1998 she had any beneficial interest at all.

The submissions

19. On behalf of the claimants, here the appellants, Mr Michael Pryor submits that the changes in the defendant's interest over the relevant period are fatal to her attempt to bring herself within the resident landlord exception. He says that it is necessary to look back from the date of the notice to the date of conversion and find continuity of interest. If at the date of the notice, the freehold of the relevant premises "is held on trust", then it is section 10(4) which applies and the defendant must show that the same person, that is to say herself, has "had an interest under the trust" since before the conversion. If, on the other hand, the freehold is not held on trust at the date of the notice, then it is section 10(1)(b) that applies and the defendant must show that the same person, that is to say herself, "has owned the freehold" since before the conversion. On the facts, Mr Pryor submits that the defendant can meet neither test. First, as at the date of the notice, the freehold was not held on trust and therefore section 10(4) simply does not apply. Secondly, although the relevant test is therefore to be found in section 10(1)(b), the defendant cannot fulfil it because there is no continuity in her ownership of the freehold due to the break in her registered ownership between 30 March 1998 and 9 September 1999. Thirdly, even if for these purposes it were permissible, which he says it is not, to have regard to her purely beneficial interest over that eighteen month period, and even on the assumption that her beneficial interest bridged the eight day gap between 30 March and 7 April 1998, her interest under the trust during those eighteen months was not an interest under the same trust as for the earlier period between conversion and 30 March 1998. Fourthly, there was nothing at all which could bridge the gap of those eight days when the defendant had no interest at all in the house.
20. On behalf of the defendant, on the other hand, Mr Daniel Bromilow submits that this argument, which failed before the judge, is an altogether overly schematic approach to the statutory test of continuity of ownership. The obvious purpose of the requirement of continuity was to prevent new owners buying into a freehold for purely investment purposes in order to defeat the right to collective enfranchisement merely by showing a twelve-month occupancy of the premises. This purpose was all the clearer when regard is had to the fact that under the original 1993 form of the statute the requirement of continuity of ownership did not exist. To support that purpose, however, there was no need to adopt a test of continuity as rigid as that involved in Mr Pryor's submissions. On the other hand, the purpose of the resident landlord exception would itself be undermined if those submissions were accepted. Homes within a family unit were often held in trust: every case of joint tenancy or of a tenancy in common involved the freehold being held on trust. If Mr Pryor's submissions were correct, then whenever a survivor inherited the whole property, or a property was put by a parent into trust for his or her children, or whenever there was a variation in the trust on which a family home was held, there was likely to be a breakdown in the required continuity: whereas the essence of all such arrangements was that the relevant freehold was always held within the family. The judge was therefore right to see section 10(4) as being not an alternative test to section 10(1)(b), but as being supplementary to it. The proper interpretation of section 10, and that which best promoted or least undermined the purposes of the statute, was that adopted by the judge, viz –

"the same person has owned the freehold of the premises or has had an interest under the trust (whether or not also a trustee) since before the conversion of the premises into two or more flats."

21. In response to this reliance on the statute's purpose as a guide to its interpretation, Mr Pryor has acknowledged that his submissions answer no policy and creates anomalies, but argues that, in a situation where the statute promotes both collective enfranchisement and a limited exception in favour of resident landlords, there is no reason to prioritise the exception over the underlying purpose. All that can be said is that a test has been adopted which is no doubt a compromise and which attempts to be fair to both interests, but which has to be applied according to its terms.

The judgment below

22. The judge was impressed by the argument that Mr Pryor's approach created unacceptable anomalies. "Why" he asked "should a person who has been a beneficiary under a trust since the date of conversion, and has then become the absolute owner and acquired the freehold by the relevant date, be denied the benefit of section 10?" Even so, he said that he had at first been of the view that the wording of section 10(1) and (4) were "too clear to admit any construction other than the one contended for by the claimants". But in the end he preferred the defendant's submission: since the legislation was in a sense expropriatory, it should be read if possible in a way which favours the landlord. And it was possible: the words "Where the freehold is held on trust" meant "is at any time held on trust", leading, he concluded, to the interpretation which I have cited two paragraphs above.
23. As for Mr Pryor's alternative answer that, even so, section 10(4) allowed of only one trust ("under the trust"), the judge regarded this as "too technical". As for the eight day point, the judge had already said that he regarded the defendant as being a beneficial owner of at any rate a share in the house down to 7 April 1998, from which time she became the beneficial owner of it all.

The earlier versions of the Act

24. The earlier versions of section 10 were consulted to see if they threw any light on the issue. In its original form in 1993 there was no condition requiring continuous ownership from the time of conversion. Even the twelve months occupancy requirement could be met by a new freeholder, if he or an adult member of his family occupied the flat within 28 days of his acquisition, by taking into account the occupancy of the previous freeholder (section 10(2), repealed in 2002). For these purposes the original section 10(1) (which laid down the twelve months occupancy test) and the original section 10(2) (which extended the test in favour of the new freeholder) simply spoke of the "freeholder": and the original section 10(4) (substituted in 2002 by the current version) provided as follows in relation to the concept of beneficial ownership under trust:

"(4) Where the freehold interest in any premises is held on trust, subsections (1) and (2) shall apply as if in paragraph (b) of each of those subsections, any reference to the freeholder were instead a reference to a person having an interest under the trust (whether or not also a trustee)."

25. In this context it would seem that the only purpose of section 10(4) was to make clear that a "freeholder" included a beneficial owner of any interest under a trust. It was not intended to limit the application of the twelve months occupancy test. Section 10(6) also at that time contained a definition of "freeholder" as "the person who owns the freehold of the premises".
26. Section 10 was amended in 1996 by the Housing Act 1996. For present purposes the only change of relevance was that in place of "freeholder" with its definition there was substituted the concept of "a relevant person" with its own definition contained in a new section 10(4A). Thus subsections (4) and (4A) then provided:

"(4) Where the interest of a relevant person in any premises is held on trust, subsections (1) and (2) shall apply as if, in paragraph (b) of each of those subsections, any reference to a relevant person were instead a reference to a person having an interest under the trust (whether or not also a trustee).

"(4A) For the purposes of this section a person is a relevant person, in relation to any premises, if he owns the freehold of the whole or any part of the premises."

Again, the trust provisions are not intended to limit, but to clarify and if anything extend, the concept of a freeholder/relevant person.

27. In 2002 subsections (2), (3) and (4A) were repealed and subsections (1) and (4) were remodelled and substituted in their present form. The additional requirement of continuous ownership back to a time before conversion was introduced.

Discussion and conclusion

28. Like the judge, I am troubled by the anomalies which Mr Pryor's submissions on behalf of the claimants engender. Mr Pryor had no explanation for them, he accepted that they were anomalies. At first, however, he did not accept that they were as frequent as might appear, but, since all cases of joint tenancy and tenancy in common would involve trusts, he did in the end recognise that they would arise more often than he had initially suggested. It seems to me that such forms of tenancy, and indeed declarations of trust in general, whereby the legal and beneficial interests of premises are separated, are frequently found within families. It must follow that where there is a lengthy period between conversion and the date of a notice under the Act, as of course there may well be, there is considerable scope for situations to arise whereby, although the legal and beneficial ownership of a home has always remained within a family, there have been changes which would make it hard to show an unbroken interest of one or other of the kinds revealed in Mr Pryor's scheme.
29. The question arose of how a simple example of a husband and wife joint tenancy followed by the widow's sole legal and beneficial interest on her survivorship would fare under the scheme. Mr Pryor submitted that it would survive the test of continuity under section 10(1)(b) because, although at an earlier period the freehold was held on trust, that period was irrelevant since section 10(4) only applied where the freehold was held on trust at the time of the notice. Provided, therefore, the entire legal and beneficial interest had come into the widow's hands by the time of the notice, she could say that she was the freeholder throughout the relevant period, even though that period extended back through a time when her beneficial interest was held under trust and shared with her husband. Mr Pryor had to accept, however, that in the case of a counter-example, for instance where the freehold is owned from before the conversion by, say, a man who later marries and transfers it into his and his wife's joint names, so that at the time of the notice it is held on trust, there would be no resident landlord within the exception.
30. Each counsel submitted, it seemed to me correctly, that the statute could easily have provided in a plain and obvious way for the construction that the other counsel was contending for. Therefore, there was no guidance from that direction.
31. Mr Pryor submitted that the judge was wrong to say that because the statute was in a sense expropriatory, therefore it should be read, if reasonably possible, in a way which favours the landlord. He pointed out that to do so would run against the grain of the statute, which was admittedly expropriatory. Alternatively, as I have indicated above, he submitted that the purpose of the statute and of the exception cancelled each other out: the text should therefore be read neutrally, without any presumption. It seems to me that justice should be done, if possible, to the logic of the statute as a whole. Seeing that the right of collective enfranchisement is made subject to the exception in favour of a resident landlord, I remain impressed by the anomalies which Mr Pryor's construction creates. If I could find my way to construe the section in the way in which the judge has done, I would take it: for I do not see why a freehold which has remained within a family for the relevant period should not have been intended to be within the exception. That point is underlined by the provisions which enable the requirement of occupancy to be fulfilled by either the freeholder or a close adult member of his family (see section 10(5)). I would go so far as to say that I do not think that the present case, where, if the eight day gap is left out of account, the defendant has had a beneficial interest in the freehold, albeit not the same beneficial interest, over the whole relevant period, was intended to be one where the exception did not apply. The pedigree of section 10(4) suggests that that provision is not meant to limit the concept of continuous ownership.
32. Ultimately, however, and with reluctance, I have not found it possible to adopt the judge's approach. It is not what the statute says or can fairly be made without distortion to say. The language of subsection (1), against which subsection (4) has to operate, emphasises that the point of view for assessing the "same person" question of continuity is that time ("at any time") which is contemporaneous with the notice of the right to enfranchise: because subsection (1)(c) speaks of "the period of twelve months ending with that time". That remains the case even though the language of the statute might well have referred directly, but does not, to "the relevant date", which section 1(8) defines as the date of the section 13 notice. It is from that time, the time of the notice, backwards to a time before conversion, that the same person must own the freehold. In the absence of subsection (4), it might have been left to the courts to hold that the test of ownership of the freehold was met by a person who held a beneficial interest in the premises throughout the relevant period, whether or not under trust and whether or not the legal title was owned as well. However subsection (4) states that where the freehold is held on trust, the subsection (1) requirement applies "as if" the subsection (1)(b) requirement were (the special and different test) that the same person should have held an interest under the trust over the relevant period. That is not consistent with the trust test merely supplementing the basic test during any period within the relevant period when the freehold is held on trust. The trust test supplants, rather than supplements, "the requirement in paragraph (b)".
33. If, however, the section had been written in terms which would permit the trust provision to play a merely supplementary role, I would not have been impressed by Mr Pryor's point about different trusts, which is founded on the word "the" in the phrase "under the trust". I would have regarded that as merely a convenient way of referring to a trust interest in the case of a freehold held on trust. If there had been more than one trust, with the same person holding an interest under each, I would have regarded that as within the words "under the trust". In other words, I do not see why the singular cannot import the plural. Nor do I think I would have been impressed by the eight day point: for, even if there had been uncertainty as of 30 March 1998 until the declaration of trust on 7 April 1998, nevertheless, when one goes backwards in time from the relevant date of the notice to the time of conversion, one can see that, under the declaration of trust of 7 April 1998, the defendant had been intended to hold a beneficial interest in the house during those intervening eight days. If, therefore, I had been able to adopt the judge's solution or that pressed on the court by Mr Bromilow on behalf of the defendant, I do not think that Mr Pryor's subsidiary and alternative arguments would have made a critical difference. As it is, those questions do not arise.
34. In conclusion, I would allow this appeal, set aside the judge's order, and invite the parties to agree the consequential orders sought by the claimants, failing which I would hear the parties on those orders.

Lord Justice Longmore:

35. Rix LJ has set out the statutory provisions. The critical provision is sub-section 10(1) which requires the "same person" to have owned the freehold of the premises since before the conversion. Sub-section 10(4) then provides that where the freehold is held on trust, sub-section 10(1) is to apply as if the requirement were that the same person has had an interest under the trust since before the conversion. There must therefore be continuity on the part of the freeholder or, if the freehold is held on trust, on the part of the person having an interest under the trust.
36. In the present case there is continuity of neither kind. Before the conversion was completed in (at latest) 1991, the freeholders were Dana and the Defendant. The Defendant ceased to be the freeholder on 30th March 1998. It is true that she became the freeholder again on 9th September 1999 and remained the freeholder on 6th November 2002 but continuity was lost.
37. Before the conversion was completed, the Defendant had a beneficial interest under a declaration of trust of 4th December 1980. Once the Defendant's mother became the freeholder on 30th March 1998 (or, at any rate, 8 days later on 7th April 1998), the Defendant had the sole beneficial interest under a further declaration of trust of the latter date, but that ceased when she became the freeholder on 9th September 1999. Continuity of interest under the trust then ceased and thus continuity of such interest was lost. Since, moreover, there were in fact two separate declarations of trust, the Defendant's interest in "the trust" for the purpose of sub-section 10(4) could be said to have only begun on 7th April 1998 which is too late.
38. The judge was able to avoid this conclusion by saying first that, because the legislation was expropriatory, it should be read, if reasonably possible, in a way which favours the landlord and then saying that subsections (1) and (4) should be read together as if they read:-

"the same person has owned the freehold of the premises or has had an interest under the trust . . . since before the conversion of the premises into two or more flats."

39. I agree that the legislation is expropriatory but, since it is clearly intended to be, Parliament's intention is liable to be flouted if the legislation is to be construed favourably to the landlord save in a case of genuine ambiguity. Save in such cases of ambiguity it is inappropriate for the court to favour the landlord rather than the tenant or, indeed, the tenant rather than the landlord.
40. The way the judge has read the legislation seems to me to be contrary to the sense of section 10 as enacted. On a proper reading, whatever interest is relied on has to be continuous; there is no indication that the interests can be mixed with each other to result in a continuous whole.
41. The consequence of this construction has become more stark since 2002 when, for the first time, the resident landlord (or a member of his family) had to have been resident since before the conversion. It is possible that Parliament did not appreciate this in 2002 but, whether it did or not, that cannot affect the true construction of the provisions of the Act as now amended. I agree with Rix LJ that the appeal must be allowed.

Lord Justice Peter Gibson:

42. I share the Judge's unease at a construction which gives rise to the two "anomalies" which he has identified as arising, being circumstances in which a landlord is not a resident landlord for the purposes of the 1993 Act, viz. (1) freehold held by a bare trustee for a beneficiary for part of the period between the date of conversion and the relevant date and by the beneficiary for the remainder of the period, and (2) freehold held by the trustee for A for life, remainder to A's son, for part of that period and on A's death by the son. Those examples seem to me not so much anomalies as surprising consequences of the construction which, as the Judge acknowledged, was what the clear words of s. 10 (1) and (4) suggested. One is entitled to wonder what was the intention of Parliament in so providing.
43. However the duty of the court is to give effect to the intention of the legislature as ascertained from the language used and I do not think it permissible to arrive at a construction other than what the clear statutory words dictate either by leaning in favour of the landlord or by mixing interests when it is plain that the interest relied on had to be continuous since before the conversion. It was not open to the Judge to write into s. 10 (4) the words "at any time" (particularly when the words are found in s. 10 (1)), nor to rewrite s. 10 (1)(b) in the way he suggests is its meaning when read with s. 10 (1)(a).
44. To revert to the intention of Parliament, it can only be assumed from the statutory language that Parliament intended a simple test: at the relevant date either own the freehold from before the conversion or be a beneficiary under the same trust since before the conversion. It would surely have been obvious to Parliament that so unsophisticated a test would give rise to consequences such as those identified by the Judge. Nevertheless, that is the test which was enacted and the courts must give effect to it.
45. On the facts of this case there was no such continuity of interest. The Defendant faces the further difficulty that there were two separate declarations of trust.
46. I too would allow the appeal, and agree with Lord Justice Rix's proposals regarding consequential orders.
Order: Appeal allowed and the judge's order set aside; the declaration of entitlement to the right of collective enfranchisement; the counternotice is of no effect; the respondent may serve a further counternotice by 4.00pm on 23^rd July; the respondent to pay the appellant's costs; payment on account in the sum of £20,000, to be paid within 21 days. (Order does not form part of the approved judgment)