Citation: [2015] EWCA Civ 23
The Court of Appeal had to consider whether the relevant date for determining intention under section 30(1)(f) of the Landlord and Tenant Act 1954 (“The Act”), the landlord’s ground for possession where it intends to demolish or reconstruct a property, was the date of trial or the date of the landlord’s notice to terminate (“the section 25 notice”). The landlord in the case (“Greathall”) had sought possession of a business premises upon termination of the tenant (“Mr Hough”)’s existing tenancy on the basis of ground 30(1)(f), but Greathall did not have the requisite intention at the date of service of its section 25 notice. The judge, finding in favour of Greathall, held that the relevant date for determining intention was the date of the hearing and not, as Mr Hough had argued, the earlier date of service of the section 25 Notice. Considering the necessary intention to have been established at trial, the judge dismissed Mr Hough’s application for a new tenancy. Mr Hough appealed to the Court of Appeal, arguing that the accepted position of considering intention at the date of trial, as set out in the leading case of Betty’s Cafés Ltd v Phillips Furniture Stores Ltd [1959] AC 20, did not apply where court procedures were triggered by a landlord’s notice to terminate under section 25, as opposed to a tenant’s request for a new tenancy under section 26. He argued that this was a result of the change of wording in the new sections 25(6) and (7) of the Act, now requiring a landlord to state whether he “is opposed” to the grant of a new tenancy, as opposed to whether he “would oppose” an application for the grant of a new tenancy – a shift from the conditional tense to the present tense, which only applied to the section 25 provision. Mr Hough’s appeal was dismissed unanimously by the Court of Appeal, with the Judges finding: (i) the “sole purpose” of the amendment had been to rationalise the wording of the statute, following abolition of the counter-notice procedure. There was no longer any need for use of the conditional tense as that was only appropriate where a landlord was waiting to see whether a tenant would serve a counter-notice stating its unwillingness to give up possession. There was nohing further to indicate that Parliament intended to revise the settled law as to the timing of for the demonstration of the landlord’s intention, whether in section 25 or 26; (ii) there was nothing in any of the documents referred to the preamble to the 2003 Order, the amending legislation, to suggest that the previous position was to change; and (iii) the purpose of the notice of opposition was to perform the function of a pleading to inform the tenant of the case to be met at trial and to prevent him from being taken by surprise as to the grounds of opposition (Betty’s Cafés Ltd v Phillips Furniture Stores Ltd [1959] AC 20 applied). It would be an odd investigation at trial to enquire as to what a landlord’s intention was at the date of service of the notice, many months previously, when it was clear that it also needed to establish intention at the date of the hearing.
Counsel: Adrian Williamson QC appeared on behalf of the Defendant, Greathall.
