PHRJ Newbold & Ors v The Coal Authority

This is an appeal by the Coal Authority against the order made by George Bartlett QC, the President of the Upper Tribunal (Lands Chamber) declaring that notices dated 1 February 2007 and 3 August 2009 were valid damage notices for the purposes of section 3 of the Coal Mining Subsidence Act 1991.

In order to understand the issue raised by this appeal, it is necessary to set out the relevant legislative provisions. The Coal Mining Subsidence Act 1991 confers a statutory remedy for damage to property caused by coal mining, and conversely it imposes statutory liabilities on the Coal Authority (“the Authority”). Section 2 imposes a duty on the Authority to take one or more kinds of specified remedial action in respect of subsidence damage. The specified remedial action is the execution of remedial works, the making of payments in respect of the cost of such works, and the making of payments in resepct of the depreciation of the value of the damaged property. Importantly for present purposes, that duty is subject to the provisions of the Act, and the most important of those provisions is section 3, requiring service of a damage notice.

Sections 3 and 4 of the Act, so far as relevant, are as follows:

“3.

Notice of subsidence damage

(1)

The [Authority] shall not be required under section 2(1) or (4) above to take any remedial action or make any payment in respect of the cost of emergency works, unless the owner of the property or some other person who is liable to make good the damage in whole or in part—

(a)

has given to the [Authority] the required notice with respect to the damage within the period allowed by this section; and

(b)

has afforded the [Authority] reasonable facilities to inspect the property, so far as he was in a position to do so.

(2)

The required notice with respect to any subsidence damage is a notice stating that the damage has occurred and containing such particulars as may be prescribed; and references in this Act, in relation to any subsidence damage, to a damage notice are references to such a notice with respect to the damage given within the period allowed by this section.

(3)

The period allowed by this section for giving a damage notice with respect to any subsidence damage is the period of six years beginning with the first date on which any person entitled to give the notice had the knowledge required for founding a claim in respect of the damage.

…

(6)

In this Act—

“the claimant”, in relation to any subsidence damage, means the person who gave or, as the case may be, was the first person to give a damage notice to the [Authority] in respect of the damage, and includes any successor in title of his;

“any other person interested”, in relation to any such damage and any time, means any person other than the claimant who, not less than 7 days before that time, gave such a notice to the [Authority] in respect of the damage, and includes any successor in title of any such person.

4.

Initial response to damage notice

(1)

As soon as reasonably practicable—

(a)

after receiving a damage notice; or

(b)

where they receive two or more such notices in respect of the same damage, after receiving the first of them,

the [Authority] shall give to the claimant, and to any other person interested, a notice indicating whether or not they agree that they have a remedial obligation in respect of the whole or any part of the damage specified in the damage notice.

…”.

It can be seen that the only person who may serve a notice is the owner of the damaged property or some other person who is liable to make good the damage (typically a lessee under his repairing covenant). The service of an effective damage notice is important in two respects. First, it gives rise to the obligation of the Authority to take remedial action. Its obligation does not arise “unless the owner of the property or some other person who is liable to make good the damage … has given to the Authority the required notice”. Secondly, and equally importantly, section 3(3) creates a limitation period, so that delay in serving or failure to serve an effective damage notice may lead to the loss of the statutory remedy and conversely may absolve the Authority from what would otherwise be its liability under section 2.

The Coal Mining Subsidence (Notices and Claims) Regulations 1991 (“the Regulations”) prescribe the particulars to be contained in a damage notice as authorised by section 3(2) of the Act. Regulation 2 provides:

“A notice under section 3(1)(a) of the Act (notice of subsidence damage) shall contain the particulars specified in Schedule 1 to these Regulations.”

Schedule 1 is as follows:

“The particulars referred to in regulation 2 are–

1.

The name and address of the claimant and of any person acting on his behalf.

2.

The address of the damaged property.

3.

The type of property, including–

(a)

if a house, whether detached, semi-detached or terraced; or

(b)

if a flat or other part of a building used as a private-dwelling, whether purpose-built or a conversion.

4.

If the property is not used exclusively for residential purposes, a brief description of its use.

5.

Particulars of the legal interest of the claimant in the property.

6.

The names and addresses (if known) of any other persons having a legal interest in the property (including mortgagees or, in Scotland, creditors under the heritable security) and the nature of their interest.

7.

The approximate date of construction of each damaged part of the property.

8.

Brief particulars of the damage.

9.

The date, or approximate date, when the claimant first noticed the damage.

10.

Whether the claimant has obtained a report on the condition of the property with a view to the possible preparation and prosecution of a damage notice and, if so, brief particulars of that report.

11.

The days and times of the day when the property may be inspected.

12.

Whether the property is ecclesiastical property or is otherwise held for religious purposes.

13.

Whether the property is of a kind mentioned in section 19(1) of the Act (ancient monuments and listed buildings).”

I can take many of the facts from the President’s clear judgment:

“1.

The claimants, who are brothers, seek compensation “Likely to be in excess of £100m”, as it is put in the notice of reference, under the Coal Mining Subsidence Act 1991 for the costs of remedial works to the mansion house and ancillary buildings at Wentworth Woodhouse, of which they are the freehold owners as tenants in common. Notice of reference was given following the service under section 3 of the Act of two damage notices, one dated 1 February 2007 and the other dated 3 August 2009, and their rejection by the Coal Authority. The Authority, the respondents, say that neither damage notice was valid; firstly because each was given by the first claimant, Paul Newbold, alone, rather than by the three brothers as owners of the property; and secondly because in four respects it failed to give particulars prescribed for such purposes by Regulations made under the Act. The claimants deny that the notices are invalid. They say that they were validly given by Paul Newbold as agent for himself and his brothers; or alternatively that they were given by the brothers; that any failure to give prescribed particulars has not rendered the notices invalid; and that in any event the Authority are estopped from contending that the notices are invalid or alternatively debarred from so contending under the doctrine of legitimate expectation. …

2.

Wentworth Woodhouse is a mansion built on a vast scale in the mid-18^th century with a number of substantial buildings and structures in its grounds. It is in a sadly dilapidated condition. It was owned and occupied for many years by the Earls Fitwilliam but during the Second World War and afterwards it was occupied mainly by the military and then by various public bodies. It was acquired in 1988 by a person called Wensley Haydon-Baillie. Mr Haydon-Baillie got into financial difficulties, and on 4 June 1999 the property was acquired from his mortgagee, Bank Julius Baer, by Macaw Properties Ltd (Macaw), a company ultimately owned and controlled by the three Newbold brothers. The freehold was transferred by Macaw to the Newbold brothers on 2 December 2005, subject to the grant of a lease for 20 years from 1 December 2005 in favour of a company, SW1 Nominees Ltd, which held the lease on trust for Macaw. Small parts of the property were held under sub-leases.

3.

Extensive coal mining took place in this part of Yorkshire in the vicinity of the Wentworth Estate from the 19^th century up to about 30 years ago. Deep mining was carried out by private coal owners and then by the National Coal Board beneath the property from 1922 to 1962 and in the vicinity of the Wentworth Estate from 1922 to 1979. In addition opencast mining was carried out very near to the mansion in the late 1940s. On occasions in the past the Coal Authority or their predecessors accepted claims in respect of damage to the property caused by mining subsidence.

4.

The claimants contend that extensive subsidence damage has occurred over the past decade to Wentworth Woodhouse. The two damage notices that were given were rejected by the Coal Authority (on 24 December 2008 and 14 September 2009) on the ground that any damage to the property which had occurred within the relevant period prior to the giving of the notice was not caused by coal mining operations and so was not subsidence damage for which they had any liability under the Act. Notice of reference to the Tribunal was given on behalf of Macaw on 22 December 2009 by their solicitors, David Cooper and Co, and a further notice of reference was given on behalf of the Newbold brothers on 20 January 2010. A statement of case in relation to both references was filed on 27 January 2010, and the Authority’s reply was filed on 9 April 2010. The reply asserted that the claims were invalid. On 11 June 2010 I ordered that the issue of the validity of the notices should be determined as a preliminary issue and that a statement of case and a reply should be filed in relation to the issue. On 18 March 2011 I consented to an application made on behalf of Macaw that Macaw’s case be withdrawn.

10.

The first damage notice was given on 1 February 2007 and the second on 3 August 2009. Each of the notices used the standard form of notice created for this purpose by the Department of Trade and Industry (the department responsible for coal mining at the time of the first notice). In section 1 “Claimant’s Name” was given as Paul Newbold and the address as Wentworth Woodhouse. A side note on the form said “If you are representing the claimant and completing this form on his or her behalf, please give your name and address”. Mr Robert Talby, who completed the 2007 form, and Mr James Harbord, who completed the 2009 form, complied with this instruction, each giving his own name and the address of his firm, Ove Arup and Partners Ltd, the engineering consultants. In answer to the question “Are you a professional agent authorised to represent the claimant?” each ticked the “Yes” box.

11.

Question 10 in section 4 of the form was: “Particulars of the claimant’s legal interest in the damaged property”; and it contained two questions, each with a “Yes” box and a “No” box opposite them. The first question was “Are you the owner of the freehold?” and in each form the “Yes” box was ticked. The second question was “Are you a tenant and liable for repairs?” again with a “Yes” box and a “No” box. Neither the “Yes” box nor the “No” box was ticked in answer to this second question. A further option was also included: “Other, please give details”; and in response these words were added: “See attached note on ownership of site.” Question 11 “Give full particulars of any other persons having an interest in the property e.g. Landlord, Tenant, Building Society or other provider of a mortgage” was left blank. The attached note said this:

“Macaw Properties Ltd owned the freehold of the site until December 2005, at which time the freehold was bought by the Newbold brothers with Macaw Properties Ltd retaining a 20 year lease of the vast majority of the site. The remainder being a small apartment within the house held by the Newbold Brothers on a 20 year lease.”

12.

Question 16 was: “Prior to the property being damaged, did the claimant pay to have an independent surveyor carry out a pre-mining survey?” and brief details were requested, including the date of the report and who prepared it, if the answer was yes. Here the following statement was made:

“A survey of the Estate was prepared in 1999 by Martin Stancliffe Architects/Gifford Consulting Engineers on behalf of English Heritage. The report was presented to the current owners as part of the sale of the estate.”

13.

The 2007 and the 2009 damage notices differed materially only in relation to the damage specified. The 2007 notice stated in response to Question 8 (Date when damage was first recognised) and Question 9 (Brief description of damage):

“8.

By the present owners 2005

9.

Evidence of recent cracking and movement to the main house and stableblock building, settlement and disturbance of walls, settlement of grounds and roads, including recently re-levelled road surfaces.”

The 2009 notice stated:

“8.

2009. (Damage notice dated 2007 detailed damage noticed from 2005)

9.

Movement of the north tower has displaced roof timbers, further damage to ceiling plasterwork, further movement and damage to terrace wall and cracking to the underground drainage system.”

The first notice was signed by Giles Newbold, and the second was signed by Mr Harbord.

On 4 June 1999 the freehold of Wentworth Woodhouse (to which I shall refer as “the property”) was acquired by Macaw, and on the same day it entered into a legal charge with St Ledger Investments Ltd. The freehold was subject to rights of way and sewerage on the part of a neighbouring landowner.

The President found that in September 2005 the Newbold Brothers and Macaw, but not SW1 Properties, instructed Ove Arup & Partners Ltd (“Arup”) to advise them in relation to subsidence at the property. By letter dated 19 September 2005, Macaw instructed Arup “to carry out the first phase of the claim”.

Following legal advice on the company law and tax issues relating to the property, on 2 December 2005 the following events took place:

(1)

Macaw entered into an assured shorthold tenancy agreement with Clifford and Dorothy Newbold, the parents of the brothers, for the letting of a suite of rooms in the mansion for a term on one year less one day from 1 December 2005.

(2)

Macaw granted a lease of the property to SW1 Nominees Ltd for 20 years at a peppercorn rent.

(3)

SW1 Nominees Ltd entered into a trust deed to hold the head leasehold of the property on trust for Macaw.

(4)

A further suite of rooms was sublet by SW1 Nominees Ltd to Macaw. This suite was and continues to be occupied by the brothers.

(5)

The freehold title was transferred by Macaw to Paul, Marcus and Giles Newbold as legal joint tenants on trust for themselves as tenants in common.

On 20 March 2006, Arup invoiced Macaw for its fees in connection with a mining desk study in relation to the property.

In March 2006, Paul Newbold instructed Arup to carry out a visual inspection of the cracking and subsidence to the property.

On 17 January 2007, Mr Talby of Arup sent to Giles Newbold the draft of the Coal Authority Damage Notice form for the property, which Mr Talby had completed. In the covering letter, Arup recommended that “you consult with your lawyers to confirm that this is the correct way forward”, and that “the final signature is from a member of your family as you are the owners of the property”.

Giles Newbold signed the draft, apparently without consulting lawyers, on 1 February 2007, and it was sent to the Authority in the form referred to above.

On 27 February 2007 there was a site meeting with the Authority to consider the claim. The Authority was represented by Mr Cammack, Deputy Operations Manager (Subsidence), whose note of the meeting describes Paul Newbold as the Claimant and Paul and Giles, both of whom were present, as owners. The note stated that the property had been in the ownership of “the Newbold brothers” for the last 8/10 years, and that the owners had employed Arup to advise on movement to the property. In an internal email of 1 March 2007, Mr Cammack stated that the claim had been submitted by the Newbold family.

On 21 March 2007 another meeting was held. Mr Cammack’s note of this meeting states that the Claimant was “Messrs Newbold”, and again refers to Paul and Giles as owners.

On 12 July 2007, Mr Cammack wrote to Arup stating “I understand that the Newbold family have submitted a claim for damages to the entire estate …”

On 7 November 2007 the head leasehold interest in the property was transferred by SW1 Nominees to Macaw.

In January 2008, Arup submitted to Giles a draft specification for surveys to be carried out of the property. It stated that Macaw was the owner of the property. Tenders for the surveys were obtained and appraised by Arup, who reported on them in a letter dated 3 March 2008 addressed to “Giles Newbold, Macaw Properties”.

Paul Newbold wrote to the Chief Executive of the Authority on 11 April 2008. He stated:

“I am writing, as the owner, to make you aware of the situation at [the property]. ….

Since I purchased the property in 1999 I have been restoring the house. …

I have invested millions of pounds restoring this magnificent house …”

Philip Lawrence, the Chief Executive of the Authority, replied on 18 April 2008, to the effect that the Authority was taking the matter seriously. On 16 May 2008, Simon Reed, the Authority’s Head of Public Safety and Subsidence, wrote to Paul, referring to “your subsidence claim” and the correspondence between him and Mr Lawrence.

A further meeting was held on 22 May 2008. Arup’s note of that meeting lists “Giles Newbold (Macaw Properties) GN” and “Marcus Newbold (Macaw Properties) MN“, from which I infer that the author of the note, Mr Harbord, considered that those two brothers were present on behalf of Macaw. The note includes the following summary:

“MN explained that the Newbold family bought the property in 1999 …. The family have a further 17 years remaining on the current lease in order to complete the restoration works.”

In June 2008 there was another exchange of letters between Paul Newbold and Mr Lawrence, in terms consistent with their earlier correspondence.

Ian Wilson, the Authority’s Director of Mining Projects and Property, prepared a paper for the Board on the subsidence claim relating to the property. It began:

“On 1 February 2007, a subsidence damage claim was submitted to the Authority by the Owners of the Wentworth Woodhouse estate (the Newbold family). …”

The Authority’s note of a meeting on 18 July 2008 describes Giles Newbold as Owner, and similarly C Newbold (the brothers’ father).

In his letter to Paul Newbold dated 24 December 2008, Mr Reed on behalf of the Authority set out its position in regard to “the claim you have made”. The letter is consistent with Paul Newbold’s letter of 11 April 2008: i.e., it treated the claim as his alone. The letter was a denial of liability on substantive grounds, unconnected with the validity or otherwise of the first damage notice.

Arup reported to Paul Newbold on the letter of 24 December 2008 in a letter dated 5 February 2009. It was not copied to Giles or to Marcus. David Cooper, solicitor, replied to the Authority’s letter in a formal letter dated 8 April 2009. the letter was expressed to be “a protocol letter prior to any action”. It began:

“Further to your letter dated 24 December 2008 addressed to Mr Newbold, I have been instructed by Mr Newbold, the owner of the above premises regarding various claim (sic) that have been made under the terms of the Coal Mining Subsidence Act 1991 for the various areas of damage on [the property].”

The Mr Newbold referred to was, of course, Paul Newbold.

Mr Reed replied on 21 April 2009:

“… I note that you are instructed to act for Mr Newbold regarding various subsidence damage claims …”

On 13 July 2009, Arup wrote to Mr Cammack stating that further damage had been caused to the property:

“We understand from the guidance on reporting subsidence damage … that when further damage is observed, the Claimant shall inform the mine owner, and a new claim form will be issued for the Claimant to complete. Please can you forward to Arup the relevant forms for completion by the property owner.”

Having received a form, Mr Harbord completed it and sent it to Giles Newbold for review. The second damage notice was subsequently signed by Mr Harbord, dated 3 August 2009 and submitted to the Authority.

Another meeting was held at the property on 1 September 2009. Mr Cammack attended, and his note refers to the Claimant as “Newbold Family” and in the list of those present to Giles and “Mr Newbold (Senior)” (the Newbold brothers’ father), both of whom were described as “Owner”. The Authority denied liability for the new damage. On 14 December 2009 Mr Cammack wrote to Arup repeating that the Authority did not consider that it had any liability.

On 22 December 2009, Macaw submitted a notice of reference to the Upper Tribunal as “property owner” in relation to a claim “likely to be in excess of £100 million”. The claim was stated to be “in respect of damage notices re subsidence at the … property”. The only damage notices that had been served were those dated respectively 1 February 2007 and 3 August 2009.

On 20 January 2010, a further notice of reference was submitted to the Upper Tribunal. It named the three Newbold brothers as Claimants, but was otherwise identical to that served in the name of Macaw.

On 27 January 2010, a Statement of Case was served by Macaw and the Newbold brothers. It relied on the 2007 and the 2009 damage notices and earlier notices.

The Authority served its Reply on 9 April 2010. It contended that none of the damage notices (apart from one served in 1972) had been given by the owner of the property or a person liable to make good the damage, and that the notices did not comply with the statutory requirements. In paragraph 39 it pleaded:

“The identity of “the Claimant” is unclear and locus standi is denied.”

Paragraph 47 was as follows:

“47.

The Respondent notes that there are two references to the Tribunal in relation to the property, firstly by Macaw and secondly by the Newbold brothers. However:

47.1

the Notice of Reference dated 22 December 2009 names the Claimant as Macaw said to be the property owner.

47.2

the Notice of Reference dated 20 January 2010 names the Claimant as [the Newbold brothers] said to be the property owners.

47.3

the only purported damage notices served by or on behalf of any of the above have been served in the name of Paul Newbold.”

On 11 June 2010, the Tribunal ordered the trial of the preliminary issue as to the validity of the 2007 and 2009 damage notices. The Statement of Case of the Claimants on this issue pleaded two claims, one by the Newbold brothers and the other by Macaw.

In a letter dated 13 August 2010, David Cooper stated:

“When the original reference was made in the name of Macaw Properties Ltd, it was not clear to us who the Claimant should be. That is why we put in further references in respect of the Newbold family and asked the Tribunal to join the two together.

It is now apparent that the Macaw Properties Ltd claim is no longer appropriate and it is consequently withdrawn. We will inform the Tribunal accordingly.”

The Statement of Case was subsequently re-amended to delete Macaw as a Claimant.

It pleaded that both damage notices had been given by the Newbold brothers. Paragraph 14 was as follows:

“… The main issue in this reference is compliance with the first requirement (the notices had to be given by the owner of the property), an issue which depends on the law of agency. … It is our contention that, for reasons which we will fully explain, (a) the notices given by Paul Newbold as agent for himself and Marcus and Giles Newbold and so were given by the owner as that expression is defined in the 1991 Act and (b) the notices contained all of the prescribed particulars.”

Having set out the law that one of two or more co-owners of a property cannot carry out an action affecting the property, the Statement of Case continued:

“17.

It follows from this analysis that in the present case where the Claimant as regards both the 2007 and the 2009 notice was described as Paul Newbold it was he who gave the notice and the notice was only given by the owner of the property if Paul Newbold when described as the Claimant and when giving the notice acted for himself and Marcus and Giles Newbold. In paragraph 3 on page 2 of the schedule of Suggested preliminary issues prepared by the Claimants for the purposes of the pre-trial review before the Tribunal it was said that the case for the Claimants was that the notices were valid notices (a) because the description of the Claimant as Paul Newbold was sufficient to render them valid or, alternatively, (b) because in giving the notices Paul Newbold acted as agent for himself and his two brothers, Marcus and Giles Newbold. For the reasons just explained the Claimants do not assert the first of these propositions. The case the Claimants is that the notices were valid because Paul Newbold in giving the notices as the claimant acted as agent for himself and his two brothers. It is for this reason that the law of agency and the facts relating to agency are critical for the purposes of this preliminary issue.

…

20.

… The question is whether in giving the notice Paul Newbold acted for himself or acted for himself and his two brothers.

….

48.

We submit that the essential point in the preliminary issue is whether Paul Newbold, in giving the 2007 and 2009 notices, and as “the Claimant” referred to in the two notices, acted as the agent of himself and his two brothers.”

The Statement of Case also pleaded an estoppel by convention, to which I shall refer below, and contended that the two notices satisfied the statutory requirements as to their contents.

In its reply, the Authority pleaded that the damage notices were not valid if given by Paul only, and denied the alleged agency and the alleged estoppel. It pleaded that the description of the ownership and interests in the property in the memorandums attached to the notices were incorrect:

“22.

… If at the date of the notices the legal estates or interests existing in the property were as set out at paragraphs 7A and 7B [of the Statement of Case], it is clear that the memorandum was not accurate (whether “generally” or at all). In that regard:

22.1

Whereas the memorandum stated that from December 2005 Macaw retained a 20 year lease of the vast majority of the site, such is simply not the case. It did not retain any such lease from December 2005. Rather, it granted a lease of the whole of the property to SW1 Nominees Ltd. And as at the date of the memorandum, such lease was still held by SW1 Nominees Limited.

22.2

Whereas the memorandum stated that the remainder was held by the Newbold brothers on a 20 year lease, such is simply not the case. There was no such lease. Rather, there was granted (a) to Clifford and Dorothy Newbold an assured shorthold subtenancy of a suite of rooms (being initially for 12 months and then continuing as a monthly periodic tenancy), and (b) to Macaw, a sublease of a further suite of rooms for a term of 20 years less three days.

22.3

The memorandum gave no indication of the other legal interests in the property set out …. including the legal charge held by St Ledger Investments Ltd.”

It also pleaded that the information in the notices as to reports obtained by the Claimant was inaccurate, and that neither notice satisfied the statutory requirements.

The President summarised the position at the dates of the notices in question as follows:

“15.

… at the date of the first damage notice (1 February 2007) the freehold was vested in the three brothers and SW1 Nominees Ltd held a 20-year leasehold interest on trust for Macaw Properties Ltd subject to an underlease to Macaw of the brothers’ suite of rooms. At the date of the second damage notice (3 August 2009) the freehold remained vested in the brothers but the headlease had been transferred to Macaw (and, it would appear, the underlease of the brothers’ suite would have merged with it). In terms of the Act, therefore, at the date of the first notice the brothers were owners of the property and SW1 Nominees Ltd was a person who was liable to make good such damage as the property might have suffered through mining subsidence. At the date of the second notice the owners were the brothers and Macaw was a person who was liable to make good such damage. These were the persons who respectively at those dates were entitled to serve damage notices.

16.

The note on ownership of the site attached to each damage notice was correct only to the extent that it implied that the freehold was vested in the brothers. It was inaccurate in stating that Macaw had from December 2005 “retained” a 20 year lease “of the vast majority of the site”. From 2 December 2005 to 1 February 2007 the 20-year headlease, which was of the whole property, was vested in SW1 Nominees Ltd, and from the latter date it was vested in Macaw. The note was inaccurate also in stating that “a small apartment within the house [is] held by the Newbold Brothers on a 20 year lease.” The 8-bedroom apartment was not leased to the brothers but to Macaw.”

In paragraphs 23 to 26 of his decision, the President summarised the parties’ cases:

“23.

The Authority said that each notice was invalid because it had been given by Paul Newbold alone, and he was not the owner of the property under section 3(1), and because it failed to give particulars that were required under the Regulations (specifically, particulars 1, identifying the claimant; 5 and 6 (details of legal interests in the property) and 10, which requires the claimant to state whether he has obtained a report on the condition of the property with a view to the possible preparation and prosecution of a damage notice and, if so, brief particulars of that report).

24.

The claimants agreed that a damage notice on behalf of the owner of property had to be given by or on behalf of all co-owners and could not be given by one alone. Their case was that both damage notices were given by Paul Newbold as agent for himself and his brothers. The agency was an implied agency arising from the way in which the three brothers had conducted their property and other affairs over a number of years, and Paul, it was said, was the undisclosed principal. The Authority said that there was on the facts no such agency: that Paul did not act as agent; and that no implied agency existed. They said also that there was no room under the statutory provision for applying the law of undisclosed principals. As far as the alleged irregularities were concerned, the claimants said that none of them invalidated the notices, either because there had been substantial compliance with particulars, or because the non-compliance had been waived and no significant prejudice had been caused to the Authority by the irregularity, or because the irregularity was not one that invalidated the notices.

25.

If their arguments on agency and non-compliance with the Regulations failed, the claimants sought to rely on estoppel. They said that from the date of the service of each notice the parties had shared the assumption that the notices were valid notices, and that this was demonstrated by the many actions carried out by them over a period in excess of three years, including the expenditure by both of substantial sums of money. The assumption that the notices were valid in law gave rise to an estoppel by convention. Alternatively, if estoppel was, as the Authority asserted, inapplicable because the Authority was a statutory body exercising statutory functions, the claimants relied on the same facts as giving rise to a legitimate expectation. The Authority said that no estoppel or legitimate expectation arose on the facts.

26.

During his opening I asked Mr Barnes whether a contention that the damage notices on their face showed that they were being given on behalf of the three Newbold brothers formed any part of his case. Such a contention seemed to me possible in view of the references in each notice and the note attached to each notice to the “owners” and to the Newbold brothers. Mr Barnes said that he did not put his case in that way. In closing, however, Mr Barnes, advanced the argument that any reasonable person in the position of the Authority would have known that the insertion of Paul’s name as the claimant was an error and would have known clearly what was intended, and that on those facts the notices were saved from invalidity. He called this his Fifth Submission. …”

The President upheld this Fifth Submission. He stated:

“27.

Mr Barnes’s submission was founded on a short passage in the judgment of Nicholls LJ in Morrow v Nadeem [1986] 1 WLR 1381, a case about a notice under section 25 of the Landlord and Tenant Act 1954 that the Court of Appeal held to be invalid. The passage relied on (at 1387) is this:

“There might perhaps be an exceptional case in which, notwithstanding the inadvertent mis-statement or omission of the name of the landlord, any reasonable tenant would have known that that was a mistake and known clearly what was intended. But that is not this case.”

That observation was quoted with approval by Nourse LJ in another case in which a section 25 notice was held to be invalid, Pearson v Alyo [1990] 1 EGLR 114 (at 115M-116A).

28.

Mr Barnes suggested that the Authority, in the person of Mr Cammack, had indeed understood that the notices had been given on behalf of the three brothers. Writing a memorandum following his inspection of the property on 27 February 2007 Mr Cammack said that “the property has been owned by the Newbold brothers for the last 8/10 years”; and in writing to Mr Talby on 12 July 2007 he said: “I understand that the Newbold family have submitted a claim for damages to the entire Estate…” In cross-examination he said that the reference to the owners was to “Paul, Giles and Marcus as well”; that “the owners” were the Newbold family; and that by “the owners I meant Paul, Marcus and Giles (or perhaps Clifford).” Mr Barnes said that the notices ought accordingly to be construed as having been given by the brothers as owners of the property.

29.

The question, in my judgment, is indeed simply one of construction. What Nicholls LJ was saying in the short passage relied on was that a reasonable tenant would, in the exceptional case he had in mind, have understood from the notice what was intended, so that the notice was to be construed in that way. How, then, are the notices in the present case to be construed?

30.

Under section 3(1) of the Act a damage notice may be given either by the owner of the property or by some other person who is liable to make good the damage in whole or in part. Indeed a notice can only be given by such a person, and the Authority’s duty under section 2(1) to take remedial action does not arise unless it is so given. Whether a notice, purportedly given under this provision, has been given by the owner or by some other person who is liable to make good the damage or by neither of these must indeed be a question of construction of the notice. The question is: on a proper construction of the notice, was it given by the owner? or by some other person who is liable to make good the damage? or by neither of these? Of course, if the notice was purportedly given by a person who said that he was acting on behalf of the owner or some other person who is liable to make good the damage, it will not have been given by the owner or that other person unless the person said to be acting on his behalf had authority to do so. That, however, is a separate question. In addition “the required notice” must state such particulars as are prescribed, and prescribed Particular 1 is the name and address of the owner; but again it is a separate question whether that particular has been given and, if it has not, whether the failure renders the notice invalid.

31.

There is no doubt, in my judgment, looking at each notice, that it was a notice that purported to have been given by the owner rather than by some other person who was liable to make good the damage or by neither of these. This is clear because the answer given to the question “Are you the owner of the freehold?” was “Yes” and the question “Are you a tenant and liable for repairs?” was left unanswered. Moreover it is also apparent that, despite a single name being entered in the “Claimant’s Name” box, the owner on behalf of whom the notice was given was in fact plural. That appears from the note on ownership attached to the notice which stated that the freehold became vested in “the Newbold brothers” in December 2005; by the answer to question 16, which said that the Martin Stancliffe report of 1999 was presented to “the current owners” as part of the sale of the estate; and, in the 2007 notice, by the answer to question 8, which said that the damage had first been recognised “by the current owners” in 2005.

32.

As a matter of construction of the notices in relation to section 3(1), therefore, they purported to be given by the owners and not just by one of them. That is what a reasonable recipient would have understood; and indeed the evidence shows that Mr Cammack for one did understand this, and there is nothing to suggest that anyone else in the Coal Authority understood it otherwise. Whether the notices were in fact given by the owners accordingly depends on whether Arup (Mr Talby in relation to the 2007 notice and Mr Harbord in relation to the 2009 notice) had the authority of the owners to give the notice.”

The President then found that Mr Talby and Mr Harbord did indeed have the Newbold brothers’ authority to give the damage notices. It followed that both notices were valid.

The case for the Respondents was that Paul Newbold gave each damage notice, as agent under an implied general agency, for himself and his two brothers as undisclosed principals. The agency was said to have arisen from the way in which the brothers had chosen to conduct their property and other affairs over the years. The President held that there was no scope for undisclosed agency under the statutory provisions, and that in any event Paul did not have authority as a matter of fact to act on his brothers’ behalf. It followed that this part of the brothers’ case failed. They have not appealed against these findings, and I need say no more about agency.

The Respondents relied on the considerable expense they had incurred in obtaining reports from Arup and others, and in attending meetings with the Authority, all in reliance on the validity of their claims. Undoubtedly they did incur considerable costs in relation to their claims. The President rejected the claim of estoppel in a paragraph of his decision that initially I found puzzling:

“108.

… I accept that all the matters that Mr Barnes relies on are or may be relevant to the question whether there is an estoppel that binds the Authority. What I cannot accept is the subject-matter of the estoppel for which Mr Barnes contends. His contention is that the Authority are estopped from denying that notices given, as he contends that they were given, by Paul Newbold as claimant are valid notices. The effect of this would be to make Paul the claimant for the purposes of the Act. But he could not be a claimant under the Act since he is neither the owner nor a person liable to repair the property. Estoppel could not operate so as to confer on him, a person lacking the interest required by the Act, a statutory right that he did not have or to require this Tribunal to give effect to the Act as though he did have that right: see Secretary of State for Employment v Globe Elastic Thread Co Ltd. [1980] AC 506. In any event the claimants in these proceedings are the three brothers as owners of the property and not Paul Newbold alone.”

The explanation is in the terms of the estoppel being contended for. It was that the Authority was precluded from contending that the notices naming Paul as claimant and for these purposes said to be given by him were not valid. However, the Act provided that only the owner or someone liable to make good damage could give a valid notice. Estoppel could not operate to confer on Paul Newbold a status he did not possess. Quite simply, Paul alone could not give a valid notice.

The President summarised his conclusions on the alleged defects in the damage notices as follows:

“78.

I conclude that the Authority’s contention that the notices were invalid must fail. Each damage notice was an owner’s notice, given on the owners’ behalf by their agents, Arup; and the particulars required by the Regulations were either sufficiently provided to or waived by the Authority or, to the extent that they were not provided or waived, such non-compliance does not invalidate the notices.”

I shall address the question of compliance with the statutory requirements below.

On this appeal, the Authority contend:

The Newbold brothers submit:

The preliminary issues

On this appeal, the first preliminary issue to be addressed is whether it was properly open to the President to find for the Claimants on their fifth submission, which was inconsistent with their case until it was espoused in their closing submissions, after the completion of the evidence, and against the Authority’s objections.

The second preliminary issue arises only if the first is decided against the Authority. It is whether the President’s finding on the fifth submission is open to be overruled in this Court as a matter of law.

I have some sympathy with the Authority on the first preliminary issue. If it could demonstrate that the failure of the Claimants to include the fifth submission in their case before or during the hearing of the evidence affected the evidence in any appreciable way, whether as to the evidence called or as to the questions asked of witnesses, I would conclude that it was not open to the President to find for the Claimants on the basis of that submission. I would so conclude even though the Authority did not seek a specific ruling on the admissibility of this submission: his ruling, implicitly that there was no unfairness in his considering this submission, is in his decision.

However, the Authority has not identified any evidence that it would or might have called if the submission had been advanced in the Claimants’ Statement of Case but which they did not call. They have not identified any questions that they would have asked of any witnesses but did not. This is unsurprising. The President dealt with the fifth submission as a question as to the true interpretation of the damage notices. There was no contentious background relevant to their interpretation, and the subsequent conduct of the parties, although clearly relevant to the issue of estoppel, was irrelevant to their interpretation: Whitworth Street Estates (Manchester) Ltd v James Miller & Partners Ltd [1970] A.C. 583, a principle applicable to notices given under contract or statute as well as to contracts.

For the same reason, I would reject the Claimants’ contentions on the second preliminary issue. The true interpretation and effect of a document, such as each of the damage notices, is a question of law and open to review by the Court of Appeal.

I therefore turn to the first of the substantive issues to be addressed.

This apparently simple question conceals what to my mind are rather difficult questions. One can see it in the President’s decision. Having concluded that the damage notices were given by the Newbold brothers, he then found that they had been given respectively by Mr Talby and Mr Harbord on their behalf. It is clear that he referred to the givers of the notices in two different senses. I do not think that that is consistent with the Act.

I have difficulty in seeing how either Mr Talby or Mr Harbord can be regarded as the giver of a damage notice in any meaningful sense. If I ask my personal assistant to type up a notice to quit in my name, and to post it, the notice is given by me, not by my personal assistant. If I ask her to sign it in my name or expressly on my behalf, and to post it, it remains a notice given by me. It is not a notice given by her. So I do not think that Mr Talby and Mr Harbord can be regarded as the givers of the notices, notwithstanding that they filled in the forms and in Mr Harbord’s case signed it.

On the other hand, if without my authority someone produces a notice in my name, the notice is not given by me, even if I am named as the person giving the notice.

The third possibility is that my personal assistant, having been authorised by me to produce and to send a notice from me, in error puts someone else’s name in the notice. In this case, it seems to me that the notice is not one given by me unless it is obvious to the recipient that the name of the giver of the notice is an error and that both it is I who authorised the giving of the notice and that the error was to substitute the incorrect name for my name. This is because a notice is by its nature a communication, and must be understood by the recipient to have been given by me. Importantly, it is not sufficient to point out that the notice is invalid unless I am held to have given it: to do so would be to depart from the requirements of the statute or contract pursuant to which the notice is served. However, the statutory or contractual requirements may cast light on both the intention in giving the notice and the reasonable understanding of the recipient. Such was the case in Mannai Ltd v Eagle Star [1997] AC 749, in which the parties’ actual or deemed knowledge of the requirements of the lease affected the consequences of the notice including a date that did not comply with the contractual requirement.

The first question in the present case is: who was the giver of the notices? Must it be held to be the person identified in it as the claimant, or may it be the persons identified as the owners of the property? If it is the person identified as the claimant, that was Paul alone, and (the issue of his agency having been disposed of) it is conceded that if so the notices were bad.

In this connection, I think it necessary to be cautious when considering the form for a damage notice. It is not a statutory form. Nonetheless, I think it is to be considered in the light of the statutory provisions, since it is given pursuant to a statutory requirement.

It is, I think, obvious that the function of naming the claimant in the damages form is to identify the person who gave the notice: see the definition in section 3(6). It is to that person that the Authority is to give a notice under section 4(1) indicating whether or not it agrees that it has a remedial obligation. The first step is to construe the first damage notice. One must decide, looking at it against the background of the facts known to the parties, whether in naming Paul as the claimant not only was there a mistake, but it was obvious what was intended. In this connection I think one is bound to consider the fifth submission of the Respondents with a degree of caution. If, as the President held, it is obvious that the notice is a notice given by all the brothers, it is surprising that this interpretation was disclaimed by them until their closing submissions, when for the first time it was said to be obvious. Yet it is only if the error was obvious and if what was intended was obvious that a non-literal interpretation is available: see Mannai.

It seems to me that the first damage notice is open to the following possible interpretations:

The Act lays down two requirements relevant to this issue. The first issue is that a notice is given by a person, who is identified by section 3(6) as the claimant; the second is that the claimant must own the property or be a person liable to make good the damage. If I look at the damage notices in this case and ask myself who according to its terms gave the notice, and I bear in mind who is able to give such a notice, on balance I come to the same conclusion as the President that it was the brothers, the freehold owners, giving notice, with Paul being named really as a matter of convenience (and possibly because there was only room for one person to be named on the printed form). The brothers had authorised Arup to deal with their subsidence claims (see paragraph 38 of the President’s decision), and in dealing with and despatching the notices Arup were acting on their behalf.

I would uphold the President’s construction of the notices.

The compliance of the notices with the statutory requirements must be determined as at the date they were received. For this reason, it seems to me that Paul’s correspondence, to which I have referred, in which he described himself as the sole claimant must be disregarded. No estoppel has been pleaded on the basis of that correspondence.

Lastly, the brothers’ concession that a notice served by one of several co-owners is invalid was based on the line of authority that includes Viola's Indenture of Lease. Humphrey v. Stenbury [1909] 1 Ch. 244, In re Leek & Moorlands Building Society v Clark and Others [1952] 2 All ER 492 and Hounslow London Borough Council v Pilling [1994] 1 All ER 432. All of these cases were concerned with notices that effected a disposition of property: notices purporting to exercise a break clause in a lease, or to surrender or to terminate a lease. A notice under section 3 of the Act does not affect a property interest. It satisfies a pre-condition of the Authority’s liability under section 2. In consequence of the brothers’ concession, the point was not argued before the President or before this Court. I should not be taken to accept that a notice given by one joint owner for the purpose of satisfying section 3 is necessarily ineffective. Whether it is so or not depends on the true construction of the statute.

There was a suggestion before us that there are two not very consistent lines of authority on the effect of failures to comply strictly with statutory or contractual requirements. On the one hand there is the line exemplified by the judgment of Lord Woolf MR in R v Secretary of State for the Home Department ex p Jeyeanthan [2000] 1 WLR 354, and on the other the judgment of Rimer J in Speedwell Estates v Dalziel [2001] EWCA Civ 1277, followed in Burman v Mount Cook Land [2002] Ch 256 [2001] EWCA Civ 1712, in neither of which was Jeyeanthan cited.

I do not consider that there is any such conflict. In all cases, one must first construe the statutory or contractual requirement in question. It may require strict compliance with a requirement as a condition of its validity. In Mannai at 776B Lord Hoffman gave the example of the lease requiring notice to be given on blue paper: a notice given on pink paper would be ineffective. Against that, on its true construction a statutory requirement may be satisfied by what is referred to as adequate compliance. Finally, it may be that even non-compliance with a requirement is not fatal. In all such cases, it is necessary to consider the words of the statute or contract, in the light of its subject matter, the background, the purpose of the requirement, if that is known or determined, and the actual or possible effect of non-compliance on the parties. We assume that Parliament in the case of legislation, and the parties in the case of a contractual requirement, would have intended a sensible, and in the case of a contract, commercial result.

In the present case, the wording of section 3 of the Act does suggest that a damage notice to be effective must contain the prescribed particulars. However, I think it right to consider what are the prescribed particulars before reaching a conclusion, since they throw light on what Parliament must have had in mind, particularly since the Regulations are relatively close in date to the parent Act. When I do so, it is not possible to conclude that Parliament intended a notice to be invalidated by an inaccuracy in the particulars. I do not think Parliament would have intended a notice that wrongly stated that a property was semi-detached, when it was in fact connected to other houses on both sides (possibly only at a small location) and so was technically a terraced house would invalidate a notice; or that an incomplete description of the non-residential user would be fatal; or an error in the date of the construction of the property outside the range of approximation. In the case of particular 6, a residential tenant who pays his rent to an agent for his landlord may not know what is the interest of his landlord or who is the freeholder or whether there is a mortgage on the property. I think that Parliament could not have intended a failure to give correct and full information on particular 6 to be fatal.

In my judgment, therefore, a notice is valid provided it adequately provides the information required by the Regulations. The damage notices in this case provided adequate information to the Authority. It identified the property in question and the damage it had suffered; it identified the Newbold brothers as the owner of the freehold, and therefore competent to give a notice under section 3. I am confirmed in my view that the information provided by the notices was adequate, since the Authority was able to and did respond to them and was able to and did investigate the claims.

I would therefore reject the Authority’s case on this issue.

My conclusion on the construction of the damage notices, if Longmore LJ and McFarlane LJ agree with me, renders it unnecessary for me to consider this issue. It is sufficient for me to state that I see no answer to the President’s conclusion in paragraph 108 of his decision.

For the reasons I have given, I would dismiss the Authority’s appeal.

I agree with both judgments.

Section 3(1) of the Coal Mining Subsidence Act 1991 provides that the Coal Authority is not required to take remedial action or make payment for the costs of works

“unless the owners of the property or some other person who is liable to make good damage in whole or in part … has given to the [Coal Authority] the required notice with respect to the damage …”

Sub-section 2 then says that “the required notice” is “a notice stating that the damage has occurred and containing such particulars as may be prescribed”.

Within six months of enactment Mr John Wakeham, the Secretary of State for Energy, made The Coal Mining Subsidence (Notices and Claims) Regulations 1991 which provided that a notice of subsidence damage under 3(1) of the 1991 Act should contain the particulars specified in Schedule 1 to the Regulations. The relevant particulars for the purpose of this appeal are

“1.

The name and address of the claimant and of any person acting on his behalf;

5.

Particulars of the legal interest of the claimant in the property.

6.

The name and addresses (if known) of any other persons having a legal interest in the property … and the nature of their interest.”

Section 3(6) of 1991 defines “the claimant” as meaning

“the person who gave or, as the case may be, was the first person to give a damage notice to the [Coal Authority] in respect of the damage.”

Section 3 does not itself require anything of “a claimant” as such but section 4 requires the Coal Authority, once they have received a damage notice, to give “the claimant, and to any other person interested, a notice indicating whether or not they agree that they have” any remedial obligation and, if so, what kind of remedial action the Authority propose to take. It is, therefore, “the claimant” with whom the Authority deal once a damage notice has been served.

Although a damage notice must contain the prescribed particulars, there is no prescribed form of notice. The Department of Trade and Industry does, however, have a form headed:-

“COAL MINING SUBSIDENCE ACT 1991

DAMAGE NOTICE”

which is made available to anyone who wishes to use it. The user is invited to fill in 17 separate entries which include the prescribed particulars but extend further than those particulars. Particulars 1, 5 and 6 are able to be entered in Boxes 1, 10 and 11 respectively. Box 1 of the form of the first damage notice as filled in gave the claimant’s name as Paul Newbold together with his address and telephone numbers. At the head of the second page which included Boxes 10 and 11, there was a rubric:-

“Please reply to all the following questions and sign at the bottom of the page.”

Box 10 was headed:-

“Particulars of the claimant’s legal interest in the damaged property.”

There was then a first question:-

“Are you the owner of the freehold?”

With a box to tick yes or no. The yes box was ticked.

The attached note on Ownership was headed:-

“To supplement question’s 10 and 11

Macaw Properties owned the freehold of the site until December 2005, at which time the freehold was brought [sic] by the Newbold brothers with Macaw Properties retaining a 20 year lease of the vast majority of the site. The remainder being a small apartment within the house held by the Newbold brothers on a 20 year lease.”

The damage notice form was then signed in Box 17 by “G. Newbold” under the declaration “I/WE declare that to the best of my/our knowledge and belief the above information is true”. A second damage notice was given in materially identical terms on 3^rd August 2009.

Mr Baatz QC for the Coal Authority contended before the judge that the damage notices as served were a nullity and of no effect because

The President had no doubt (para 31) that the notices purported to have been given by the owner of the property (namely the Newbold brothers) rather than by some other person who was liable to make good the damage or by neither of them. The note on ownership said that the freehold became vested in “the Newbold brothers” in 2005. Moreover Box 8 of the first notice stated the damage was first recognised “by the present owners” in 2005. Box 16 also referred to a 1999 survey “which was passed to the present owners” as part of the sale of the site.

I agree with the President. No one in the light of what was said in the damage notice could be in any doubt that it was the owners of site who were giving the notice. The fact that one brother was named in the box entitled “Claimant’s Name” does not, to my mind, make any difference to that. To hold that, for some reason, what looks on the face of it to be a good notice is, in fact, a nullity would be a triumph of form over substance.

The only remaining question is whether the giver of the notice had the authority of the owners to give the notice if the giver was someone other than the owners. The judge held that Mr Talby and Mr Harbord of Ove Arup (whom the brothers had instructed to advise them in relation to subsistence at the property) had authority to give the damage notices.

This last conclusion of the President was probably unnecessary, because once it is clear that the notices purported to be given by the owners of the property and that the owners of the property were the Newbold brothers, it is the Newbold brothers who have “given the notice”. Of course, if someone else had in fact “given” the notice by e.g. forging the owner’s signature or otherwise pretending to own property which he did not own that would be a different matter but nothing of that sort is alleged here. I therefore agree with Sir Stanley Burnton that it was the Newbold brothers who gave the notice as owners.

But if the giver of the notice was either Mr Talby or (more likely in the case of the second notice, since he signed it) Mr Harbord, each of them had the authority of the owners to give the notice in any event. On either view therefore the President came to the correct conclusion.

On all other matters I also agree with Sir Stanley. In particular I consider that, on the true construction of the 1991 Act, an inaccurate particular will not invalidate the notice. A question could arise whether particulars, purportedly given in a damage notice, were so inadequate that in effect the relevant particulars (or a single particular) was not provided at all. Even then it would be a matter of construction whether such inadequacy meant that the entire notice was invalid. But I have no doubt that there was adequate compliance in this case, so no question of consequences arises.

I agree, therefore, that this appeal should be dismissed.