Grimes v The Trustees of the Essex Farmers and Union Hunt [2017] EWCA Civ 361
Introduction
If one has to serve a notice to quit on a tenant, serving it at the tenant’s correct address is obviously very important. But just what is that address? This will depend upon the terms of the lease and in this particular case the lease contained a very common form of words:
“Either party may serve any notice (including any notice in proceedings) on the other at the address given in the Particulars or such other address as has previously been notified in writing.”
The issue in the case was very simple. On the wording of this provision was it still open to the Landlord, in July 2011, to serve a notice to quit at the tenant’s address shown in the Particulars, even though he had moved from that address nearly six years before, and he had given notice of his change of address to the Landlord by a written note dated December 2006 enclosing a cheque for the quarter’s rent?
The Facts
Mr Grimes has been an agricultural tenant of the Trustees for many years but notice to quit was served on the tenant in 2011 in a dispute over a proposed increase in rent. Mr Grimes commenced proceedings claiming that damages for his dispossession on the grounds that the notice had not been validly served and so the tenancy had not been correctly terminated. The County Court Judge had held that on the literal construction of the service clause, the landlord could serve it on either the new address or the address stated in the particulars. The Tenant appealed to the Court of Appeal.
The Decision
Henderson LJ (with whom Lord Justice Beatson and Lady Justice Macur agreed) started his judgement by quoting familiar words from Lord Neuberger of Abbotsbury PSC in Arnold v Britton [2015] UKSC 36, [2015] AC 1619, at [15]:
“When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to “what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean”, to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101, para 14.
The Court was unanimous in holding that the notice had not been validly served and that Mr Grimes was entitled to damages. As Henderson LJ said: “What is the point of enabling the tenant to notify the landlord of his new address, … if the landlord remains free to serve notices on the tenant at the address given in the Particulars? Surely, as a matter of commercial common sense, the parties must have intended that the new address, once duly notified, should supersede the original one shown in the Particulars… The parties cannot sensibly have intended that the serving party should continue to have the option of serving at the old address once he has been notified of the new one. That is to say, the parties must have intended that the new address should be a substitute for its predecessor, and not that it should offer a choice which did not exist before notification of the new address.”
Conclusion
This common sense decision is to be welcomed – and although this case relates to an agricultural tenancy, it will apply to all types of tenancy. But the thought comes to mind that it would have been preferable if this problem had been spotted at the drafting stage and the clause had made it clear that the notified address was to replace the original address. Do check service clauses carefully whether acting for landlord or tenant.
