Westbrook Dolphin Square Ltd v Friends Life Ltd

This is an appeal by Westbrook Dolphin Square Limited (‘Westbrook’) against a decision of Arnold J, striking out proceedings brought by Westbrook, pursuant to an application made by Friends Life Limited, formerly called Provident Life and Pensions Limited (‘Friends Provident’). By its proceedings, Westbrook sought a declaration that the tenants (‘the Tenants’) of flats at Dolphin Square Pimlico, London SW1 (‘Dolphin Square’) were entitled to acquire the freehold of Dolphin Square, pursuant to section 22 of Part I of the Leasehold Reform, Housing and Development Act (‘the 1993 Act’). Dolphin Square occupies a substantial area of land, and includes a number of large buildings, containing in total 1223 flats.

All references in this judgment to sections and schedules are, save where the contrary is stated, to sections of, and schedules to, the Act.

As section 1(1) states, the 1993 Act ‘confer[s] on qualifying tenants of flats to which this Part [of the Act] applies … the right, exercisable subject to and in accordance with this Chapter, to have the freehold of [the] premises [comprising those flats] acquired on their behalf’, provided that certain substantive and procedural requirements are satisfied. The process is initiated by the tenants serving on the landlord a notice of claim (an ‘initial notice’) under section 13. An initial notice has to contain certain information, including, under subsection (3)(b), the identity of the premises, under subsection (3)(d), the price which the tenants propose, and, under subsection (3)(f), the name of a nominee purchaser.

If it wishes to protect its rights, the landlord is then required by section 21 to serve a counter-notice, which must state whether the landlord admits the tenants’ claim or not. If it admits the right, the landlord must include information in its counter-notice which effectively mirrors that in the initial notice; if the landlord does not admit the claim, the counter-notice must contain the reasons for the non-admission. Where the landlord serves a counter-notice which does not admit the claim, the nominee purchaser should apply to the court under section 22.

On such an application, if the court is satisfied that the tenants are entitled to the freehold of the premises, section 22(1) states that it ‘shall by order make a declaration to that effect’. If the court makes such an order, then section 22(3) says that it ‘shall’ also ‘make an order’ ‘declaring the … counter-notice to be of no effect’ and ‘requiring’ the landlord ‘to give a further counter-notice’ admitting the claim. On the other hand if, on the application, the court finds that the tenants are not so entitled, the initial notice ‘cease[s] to have effect.’ – section 22(6). Where the landlord admits the claim in the counter-notice, then, if the parties fail to agree the price payable for the freehold of the premises, either the nominee purchaser or the landlord may apply under section 24 to the Leasehold Valuation Tribunal to determine the price.

Four further features of the 1993 Act should be mentioned for present purposes. First, the date of the initial notice is important because (i) under sections 21 and 22, the validity of the claim to acquire the freehold of the premises is to be judged as at that date, and (ii) by virtue of para 3 of schedule 6, the price payable for the freehold of the premises is to be fixed by reference to market values as at that date. Secondly, section 28(1) provides that an initial notice may be withdrawn by the tenants at any time before a contract is entered into for the sale of the premises; in that event, by virtue of subsections (4) and (5), the tenants must pay all the landlord’s costs incurred as a result of the initial notice. Thirdly, section 29(1) states that, if the nominee purchaser fails to apply to the court under section 22, or if it does apply but then withdraws the application, the initial notice is deemed to be withdrawn, and subsections (4) and (5) of section 28 apply.

Fourthly, subsection (8) of section 13 precludes the service of a second initial notice in respect of premises while an earlier initial notice is ‘in force’ in respect of those premises, and subsection (9) provides:

The facts of this case, in summary terms, are as follows. The then parent company of Westbrook was anxious to acquire the Freehold of Dolphin Square (‘the Freehold’) if they could. Presumably pursuant to legal advice, it created a number of companies and transactions, which were intended to bring into existence underleases whose tenants could invoke the 1993 Act. For present purposes, the details of the scheme are not important; it suffices to say that it involved the creation of the Tenants, the grant of underleases to them, and the formation of a trust.

The Tenants then served an initial notice under section 13 (the ‘first notice’) on the freeholder, Friends Provident, on 24 September 2007, claiming to acquire the Freehold, and nominating Westbrook as the purchaser. On 27 November 2007, Friends Provident served a counter-notice (the ‘first counter-notice’) identifying six grounds upon which the Tenants’ claim was not admitted. On 21 December 2007, Westbrook issued an application (‘the first application’) in the Central London County Court under section 22 for declarations (i) that the Tenants were entitled to the Freehold, and (ii) that the counter-notice of 27 November was of no effect. Friends Provident served a Reply raising the same six grounds as were in the first counter-notice.

Those proceedings (the ‘first proceedings’) were transferred by consent to the Chancery Division of the High Court, where they were listed for a trial starting on 23 February 2009. A pre-trial review took place on 13 February. However, on 16 February, explaining to Friends Provident that this decision was purely attributable to the fact that the central London residential property market had fallen since service of the first initial notice, Westbrook formally discontinued these proceedings. They agreed to pay Friends Provident’s costs incurred in relation to the first notice, and in the first proceedings. Accordingly, the first notice was deemed to be withdrawn, and Westbrook became liable for Friends Provident’s costs, which were agreed at £470,000, and paid.

On 4 May 2010, the Tenants served a fresh initial notice under section 13 (the ‘second notice’) on Friends Provident, again claiming to acquire the Freehold and nominating Westbrook as the purchaser. On 6 July 2010, Friends Provident served a counter-notice (the ‘second counter-notice’) not admitting the claim and justifying the non-admission on five of the six grounds mentioned in the first counter-notice. In very summary terms, those grounds were the genuineness of certain underleases, the genuineness of the underlessees thereunder, whether there was power to extinguish a trust, the terms of the trust, and the applicability of the 1993 Act to the unusual facts of the claim – see [2011] EWHC 2302 (Ch), paras 34 and 41.

On 19 August 2010, Westbrook issued an application (‘the second application’) under section 22 for declarations (i) that the Tenants were entitled to the Freehold and (ii) that the counter-notice of 6 July 2010 was of no effect. These proceedings (the ‘second proceedings’) were transferred to the High Court by consent.

Friends Provident applied to strike out the second proceedings on the ground that Westbrook required the permission of the court to bring the second application under CPR 38.7, and it had not obtained, and should not obtain, such permission.

CPR 38.7 provides that:

Friends Provident’s striking out application came before Arnold J, who decided that Westbrook required permission under CPR 38.7 to make the second application because it arose ‘out of substantially the same facts’ as the first application, which had been discontinued. He reached this conclusion essentially on the ground that the facts involved in the two applications were ‘substantially the same’, as the issues were substantially the same namely whether the Tenants were entitled to acquire the Freehold, or whether any of the five grounds of opposition identified by Friends Provident were good – see [2011] EWHC 2302 (Ch), paras 47-51.

Arnold J also considered that permission under CPR 38.7 should not be given, as the second application ‘amounted to an abuse of process’, because Westbrook ‘both could and should have pursued [the first application] to trial to establish the entitlement [of the Tenants] to [acquire the Freehold] if it wished to maintain its entitlement’, and that ‘[i]ts legitimate desire to establish a new … date for valuation purposes does not justify forcing both Friends Provident and the court to expend further time and resources re-litigating the question a second time’ – see [2011] EWHC 2302 (Ch), para 59. In reaching this conclusion, Arnold J said that, while the 1993 Act ‘allows for the making of successive claims’, he did ’not accept’ that it ‘contemplates the making of successive claims to be entitled to exercise the right to collective enfranchisement … in the absence of some material change in the facts relied upon in support of the claim’ - [2011] EWHC 2302 (Ch), para 56.

Having given a full and clearly reasoned judgment in Friends Provident’s favour, the Judge sensibly granted Westbrook permission to appeal.

Westbrook’s first contention, as it was below, is that, for the purpose of CPR 38.7, the essential ‘facts’ out of which the second application arises for the purpose of CPR 38.7 are the service of the initial notice of 4 May 2010 and the service of the landlord’s counter-notice of 6 July 2010, or, to put the point another way, the relevant facts as they stood on 4 May 2010. Accordingly, it is said, those facts are different from the essential ‘facts’ out of which the first application arose, which were the service of the initial notice of 24 September 2007 and the service of the counter-notice of 27 November 2007, or the relevant facts as at 24 September 2010.

At first sight, this contention does not accord with the natural meaning of CPR 38.7(b). This is because the ‘facts’ raised by the two applications appear to be largely the same, namely, whether the Tenants are entitled to the Freehold, or whether they are not because of one or more of the five grounds raised by Friends Provident. To put the point more precisely, apart from a sixth ground, which Friends Provident maintained in relation to the first application, the ‘facts’ which Westbrook would have to establish to make out its case, and to defeat the grounds raised by Friends Provident, are, as a matter of ordinary language, ‘the same or substantially the same’ in the two applications.

However, I can see considerable force in the point made by Mr Dowding QC, who appears for Westbrook with Mr Radevsky, that, where a right is dependent on (i) the service of a notice and (ii) the satisfaction of certain requirements as at the date of the notice, and two successive notices are served, the fact that the issues between the server and recipient of the notices may be substantially the same in relation to each notice does not mean that the facts are ‘substantially the same’, because they are, crucially, to be assessed at different dates.

In dealing with this first contention of Westbrook, Mr Jourdan QC, who appears for Friends Provident, made much of the point that, if the first application had gone to trial, the determination of the court on many of the matters in dispute between the parties would have given rise to an issue estoppel, if the first notice had then been withdrawn and a second notice had then been served and a second application made. I accept the premise, but it does not necessarily resolve the debate as to what is meant by CPR 38.7. Whether as a matter of logic or as a matter of language, there does not need to be a precise congruence between the issues which would be treated as having been conclusively determinedif an application goes to a judgment, and the ‘facts’ which would be treated as ‘the same or substantially the same’ if, as happened here, an application is discontinued. After all, many cases of issue estoppel (in its widest sense) turn on policy and the facts of a particular case – see Johnson v Gore Wood & Co [2000] UKHL 65 [2002] 2 AC 1, 31. Further, if issue estoppel is seen as the guide, then, as Lewison LJ pointed out in argument, the reasoning of this court in Burman v Woods [1948] 1 KB 111, 113, may provide some (albeit very limited) support for Mr Dowding’s argument.

Unless it is necessary to do so, I would be reluctant to rule on Westbrook’s first contention, not least because, as Longmore LJ observed during argument, the words ‘the same or substantially the same facts’ are found in other contexts, and it may be that any decision in this case could have unanticipated or unintended consequences in other cases, whether arising under CPR 38.7, or in other contexts (e.g. under the Limitation Act 1980 and CPR 17.4(2)). In my view, it is not necessary to resolve the point, because an alternative contention, to which I now turn, was developed on behalf of Westbrook, and it seems to me to be a more satisfactory basis for allowing this appeal.

The second contention developed on behalf of Westbrook was this: if CPR 38.7 would otherwise apply to the instant case because the two applications are based on substantially the same facts, it should not do so because it would be contrary to the policy of the 1993 Act as spelt out in its provisions, and such a statutory policy must prevail over a rule of court. Accordingly, runs this argument, CPR 38.7 simply has no application to the second proceedings. That contention, therefore, involves assuming that Friends Provident has established, contrary to Westbrook’s first contention, that the second application ‘arises out of the same facts or substantially the same facts’ as the first application, and, for the remainder of this judgment, I proceed on that assumption, without deciding that it is correct

The policy of the 1993 Act, so far as successive initial notices are concerned, is clear from section 13, and in particular subsections (8) and (9). After serving such a notice, it is clear that (i) the tenants can withdraw it at any time, (ii) they are thereafter not entitled to serve another initial notice for one year from the date of withdrawal, but (iii) thereafter they are free to serve another notice. It is true that point (iii) is not spelt out in terms, but it is realistically conceded on behalf of Friends Provident, and it appears to me to be clearly implicit from reading section 13(9) on its own, and to be explicit if one reads the 1993 Act as a whole, and in particular sections 13, 22, 28, and 29, given that there is no other limitation on the tenants’ right to serve more than one initial notice in that crucial section – or elsewhere in the Act.

The problem with the Judge’s analysis is highlighted by Friends Provident’s argument that his conclusion does not prevent the Tenants in this case from having served the second notice, as it only prevents him from enforcing any rights under that notice through court proceedings. However, that seems to me to be an argument which looks to form rather than substance, and ignores the policy of the 1993 Act. The 1993 Act was not enacted in order to give qualifying tenants of flats the bare right to serve an initial notice under section 13: its purpose was to give such tenants the right, if they satisfy certain substantive and procedural requirements, of acquiring the freehold of their premises. Subject to certain other constraints, irrelevant for present purposes, that right, according to the 1993 Act, can be exercised at any time, subject to the procedural bar in subsections (8) and (9) of section 13, and, in my opinion, the issue on the present appeal has to be resolved bearing that point in the forefront of one’s mind.

If the court can strike out, or refuse to entertain, an application brought to establish the validity of a second notice simply because the decision to withdraw the first notice was made after an application to establish the validity of the first notice was made but not pursued to the end, that would severely cut down any benefit from the right to serve a second notice, in circumstances where service of such a second notice is clearly permitted by the 1993 Act. Indeed, it is hard to see why, if CPR 38.7 applies as the Judge concluded, it would not, in many cases, prevent tenants of flats ever being able to serve another initial notice. Given the unqualified statutory right to serve a second notice after the expiry of a year, it would, to say the least, be surprising if a rule of court could be invoked by a landlord in such a way as to deprive the tenants of the statutorily conferred benefit of serving such a notice, especially as the discontinuance of an application brought on an initial notice is specifically contemplated in section 29. In short, the notion of ‘one strike and you’re out’, whether or not as a result of discontinuing proceedings, appears to me to be wholly antithetical to the thrust of section 13(9) and the 1993 Act as a whole.

While the Judge was plainly right to say that the 1993 Act ‘allows for the making of successive claims’, I agree with Lewison LJ’s suggestion in argument that he went wrong in refusing to accept that it ‘contemplates the making of successive claims to be entitled to exercise the right to collective enfranchisement … in the absence of some material change in the facts relied upon in support of the claim’ - [2011] EWHC 2302 (Ch), para 56. As I have tried to explain, it appears to me that the right to serve successive notices (subject to the restrictions of subsections (8) and (9) of section 13) necessarily carries with it the right to make successive applications to the court.

If the landlord could invoke CPR 38.7 in the way that Arnold J held in this case, it would also lead to surprising results. It is clear that, if a first notice is withdrawn before an application is issued, or, at the other extreme, if a first notice is withdrawn after an application to the court under section 22 is pursued to a successful determination, then, after the expiry of the year, a second notice may freely be served, as CPR 38.7 would not apply. It seems unlikely that the legislature can have intended a different result if a first notice is withdrawn after the proceedings brought on the first notice are discontinued.

This highlights another oddity if the Judge’s decision is right. Tenants who wish to withdraw a first notice after an application has been made would be forced into pursuing the proceedings against the landlord to a conclusion if they wished to maintain the benefit of their statutory right to serve a second notice. This is because, if the first proceedings are successfully pursued to a conclusion, and it is only afterwards that the first notice withdrawn, CPR 38.7 could not apply to an application made to the court in relation to a second notice. The court should surely lean against an interpretation of the 1993 Act and CPR 38.7 which requires a party to pursue pointless litigation simply in order to protect a contingent future right. It is true that the proceedings may not be pointless because some of the resolution of some of the points at issue may be useful in relation to future proceedings brought on a subsequent initial notice, but there can be no certainty that such a subsequent notice will be served, and, if it is, whether the issues will be the same.

This prompts a further thought. If, after issuing an application, the tenants withdraw a first notice, but the nominated purchaser does not discontinue the proceedings, nobody could make it do so. Presumably, the Court or the landlord would in due course take steps which would lead to the proceedings being struck out, but the essential point is that CPR 38.7 would not apply as there will have been no discontinuance of those proceedings. It seems unlikely that it can have intended that the tenants should not be free to serve a second notice (after a year) if, after withdrawing the first notice, they take the course of discontinuing the proceedings, but they would be free to do so if they take the less responsible attitude of withdrawing the notice but doing nothing about the proceedings and waiting for them to be struck out. In answer to this, Mr Jourdan contends that an application under section 22 could survive the withdrawal of an initial notice, but it is difficult to see how it could do so without being significantly amended. Perhaps more importantly, it does not appear to be what was contemplated by the 1993 Act. It is hard to see how, if the application proceeded after the notice had been withdrawn, the court could, as it would be required to do by section 22(3), order the landlord to serve a fresh counter-notice. It should perhaps also be added that there must be a question whether it would be right for the court to continue to hear proceedings which the claimant does not wish to pursue, and which raise questions which are, and may remain, purely hypothetical (as the tenants may not serve a second notice, and, even if they do, different issues may arise) – see Rolls-Royce plc v Unite the Union [2010] 1 WLR 318, paras 45-60 and 118-127.

It is true that a landlord could be bothered by successive applications from tenants if CPR 38.7 does not apply in the present circumstances, but the legislature has decided on the degree of protection which should be afforded to landlords so far as the risk of facing successive claims is concerned. A claim can only be made by an initial notice, and, once such a notice has been served, subsections (8) and (9) of section 13 limit the occasions on which any further such notice can be served, and subsections (4) and (5) of section 28 ensure that the landlord can recover its costs whenever such a notice is withdrawn. Further, so far as the landlord’s costs of any discontinued proceedings are concerned, I would have thought that, in many cases where the discontinuance is for a reason such as applied in the first proceedings, there may be a strong argument for saying that they should be recovered on an indemnity basis.

Mr Jourdan raises the spectre of tenants harassing their landlord with successive notices and consequent proceedings which are then discontinued. I accept that, particularly in the residential context, the landlord and tenant relationship can occasionally lead to appalling and attritional relationships and vindictive and irrational behaviour. However, even bearing that in mind, a tactic such as that mentioned by Mr Jourdan seems to me to be most unlikely, bearing in mind the financial consequences to the tenants of such behaviour, coupled with the protection of subsections (8) and (9) of section 13. Further, as Mr Dowding said, the court would have power to set aside an initial notice, or even to enjoin the service of such a notice, if a landlord could show that it was, or would be, served without any genuine intention of the tenants to acquire the freehold of their premises.

It is also not irrelevant to add that, in terms of prejudice to Friends Provident in this case, I suspect that Mr Dowding QC is right when he says that much of the work which Friends Provident did in relation to the first proceedings, and which has been compensated for by the payment of the £470,000, will not have to be carried out again in relation to the second proceedings. Nonetheless, I accept that there is some force in what the Judge said about the unattractiveness of Friends Provident and the court having to go over again much of the same ground as in the earlier proceedings.

Given that it would be contrary to the terms of the 1993 Act for the court to refuse permission for a second application to be brought under the 1993 Act, where a first application has been brought and discontinued, where does that leave CPR 38.7 in relation to the second proceedings? Mr Dowding initially argued that the conclusion that CPR 38.7 could not be invoked against the second application should be based on the point that the rule was, at least to that extent, ultra vires the rule-making powers conferred by section 4 of the Civil Procedure Act 1997 (‘the 1997 Act’).

I do not consider that that is the correct analysis, and prefer and adopt Mr Dowding’s alternative formulation (which is not that different), namely that, where a rule of court appears to be otherwise inconsistent with a statutorily conferred right, then, unless it would be contrary to its express terms, the rule should be construed as not applying to proceedings brought in accordance with that right. Not only does that appear to me to comply with principle, but it appears to be supported by a decision of this court cited by Mr Dowding.

In Safeway Stores plc v Tate [2001] QB 1120, it was held that it was not open to a judge to dismiss a libel action under the summary procedure in CPR 24.2, despite the apparently unlimited ambit of that rule, because section 69 of the Supreme Court Act 1981 stated that, unless it was inappropriate for certain defined reasons, ‘a claim in respect of libel …. shall be tried with a jury’. Having described the right to trial by jury as ‘not a matter of mere procedure, but an important and substantive legal right’, Otton LJ said that ‘[a]s such it is beyond the powers of the Civil Procedure Rule Committee to abolish or limit by its general powers to reform the rules of practice or procedure’, and ‘the right … cannot be [cut down] by subordinate legislation founded on an Act conferring a broad general power’ – [2001] QB 1120, 1131. Accordingly, he held that, as ‘neither the 1997 Act nor CPR 24.2 makes express reference to defamation actions, … the general provision in the Civil Procedure Rules does not override the specific provision of section 69(1) of the 1981 Act’. As he said, to construe CPR 24.2 as applying to defamation actions would involve ‘remov[ing] the right [to trial by jury] by a casual change or a mere sidewind’.

Those observations are precisely applicable in this case, as, at the time that the 1993 Act came into force, there was no provision equivalent to CPR 38.7 in the County Court to which all applications under the 1993 Act are and were directed by section 90. Order 18 of the County Court Rules, which were then still in force, permitted, under rule 1 a plaintiff (as it then was) to discontinue proceedings ‘at any time before judgment or further order’, and expressly provided in rule 2(3) , that discontinuance did not operate as a bar to the plaintiff bringing fresh proceedings. The notion that, by replacing the County Court Rules by the Civil Procedure Rules, and by replacing CCR 18 with CPR 37, Parliament and the rule-makers intended to cut down the rights statutorily accorded to tenants under the 1993 Act seems to me to be untenable, particularly as section 29 of the 1993 Act specifically contemplates the possibility of proceedings brought pursuant to an application being discontinued.

Of course, some of the changes to the rules of court may render statutorily permitted or required proceedings to be pursued in a different manner from before, or even render them liable to be struck out or stayed more easily than before. But that is a long way away from saying that a change in the rules of court aimed at making it more difficult to bring proceedings on the same facts as had been raised in earlier, discontinued, proceedings, should cut down, or even remove, a statutorily conferred right to bring just such proceedings.

Accordingly, I consider that CPR 38.7 simply has no application to the second proceedings. It is fair to say that I would have reached the same conclusion if CPR 38.7 had been in force when the 1993 Act came into force, essentially for the same reasons: it cannot have been envisaged by Parliament when enacting the 1993 Act that CPR 38.7 could be invoked to cut down the statutorily conferred right on tenants to serve (and, it must follow, to pursue and enforce) an initial notice, provided it was not precluded by subsections (8) or (9) of section 13.

The remaining argument, which the Judge understandably did not decide in the light of his conclusion that Friends Provident succeeded under CPR 38.7, is whether the present claim should be struck out on the ground that it constitutes an abuse of process, even if CPR 38.7 does not apply. In the light of the above analysis, it appears to me to be clear that Westbrook must succeed on that point too. Given that the 1993 Act gives tenants the right to serve a second notice at any time after a year has expired following the withdrawal of a first notice, it cannot be an abuse of the court’s process to make an application to the court as contemplated by the 1993 Act in relation to such a second notice, merely because a similar application was made to the court in relation to the first notice and the proceedings were then discontinued, especially as discontinuance of such proceedings is specifically contemplated by section 29 of the 1993 Act.

In this connection, there is some similarity with a point made by Lloyd LJ, when giving the judgment of the court in a case in a very different area of law, namely that of trade marks, Special Effects Ltd v L’Oreal SA [2007] EWCA Civ 1, [2007] ETMR 51, para 77:

Accordingly, for these reasons, I would allow Westbrook’s appeal and reinstate its application made on 19 August 2010.

As the Master of the Rolls has explained section 22 of the 1993 Act enables the nominee purchaser to apply to the county court for a declaration that the participating tenants were, on the relevant date, entitled to “exercise the right to collective enfranchisement”. Section 29 (1) provides:

“(1)

Where, …—

(a)

…

(b)

such an application is so made but is subsequently withdrawn, the initial notice shall be deemed to have been withdrawn—

(i)

… or

(ii)

(if paragraph (b) above applies) on the date of the withdrawal of the application.”

Thus Parliament has dealt expressly with the case where an application is made but discontinued. The initial notice is deemed to have been withdrawn. Parliament has also decided what sanctions should apply in such a case. Section 13 (9) provides that where an initial notice is deemed to have been withdrawn:

“no subsequent notice which specifies the whole or part of those premises may be given under this section within the period of twelve months beginning with the date of the withdrawal or deemed withdrawal of the earlier notice.”

Although expressed in the negative, this provision plainly envisages that the tenants will be entitled to serve a subsequent notice once the period of twelve months has elapsed. A second or subsequent notice is a notice which is a claim “to exercise the right to collective enfranchisement”: see section 13 (1). The right is not merely a right to serve a notice. It is a right to collective enfranchisement. If the right is contested, the only way of exercising the right (i.e. by acquiring the freehold) following the service of an initial notice is by means of court proceedings. Thus in my judgment, and in respectful disagreement with the judge, Parliament did envisage second (or subsequent) applications to the court. Such applications are inherent in the statutory scheme.

From that starting point, it is a short step to conclude either that CPR Part 38.7 does not apply at all for the reasons given by the Master of the Rolls; or, if it does, that permission should routinely be given. Although I had doubts about which analysis was to be preferred, I have been persuaded that the Master of the Rolls’ analysis is the correct one.

I too would allow the appeal.

I agree with both judgments.