O G Thomas Amaethyddiaeth CYF & Anor. v Turner & Ors.

The issue in this case is whether a notice to quit an agricultural holding is valid.

The facts are agreed and may be shortly stated. The subject matter of the tenancy is a farm at Pentre Canol, Dyffryn Ardudwy. Mr Owen Gwilym Thomas was granted an oral tenancy of the farm by the then owner of the farm, a Mr Morris. Mr Thomas lived at Bodlondeb, Dyffryn Ardudwy, Gwynedd, LL44 2EU. Because the tenancy was oral, it contained no restriction on its assignment by the tenant.

On Mr Morris’ death, the freehold passed to Jane Louisa Jones. On her death, it passed to Mr Owen, as executor of her estate to whom probate was granted on 4 June 2019.

On 30 October 2019, Mr Thomas incorporated a company called O G Thomas Amaethyddiaeth CYF (in English: “OG Thomas Agriculture Ltd”). Mr Thomas became the sole shareholder and officer of the company and its secretary. Its registered office was the same as Mr Thomas’ home address.

On 1 November 2019, without telling the landlord, Mr Thomas executed a deed of assignment of the tenancy to the company. It is common ground that this was effective to vest the tenancy in the company. Thereafter Mr Thomas was the person responsible for the management of the farming enterprise (which included the farm) on behalf of the company.

On 4 November 2019, Mr Owen (who was unaware of the assignment of the tenancy) served a notice to quit. It was sent by recorded delivery post to Mr Thomas at his home address, which was also the registered office of the company. The covering letter was addressed to Mr Thomas. The relevant parts of the notice read:

Neither Mr Thomas nor the company served a counter-notice in response to this notice.

Both HHJ Jarman QC and, on a first appeal, Zacaroli J held that the notice to quit was valid, despite having been addressed to Mr Thomas. They both held that a reasonable recipient of the notice would have appreciated that a mistake had been made in naming the tenant and would have read it as having been addressed to the company. Zacaroli J’s judgment is at [2022] EWHC 1239 (Ch).

Zacaroli J summarised his reasoning thus:

He concluded at [43]:

The Agricultural Holdings Act 1986 does not require a notice to quit to take any particular form (except that it is invalid if it purports to terminate the tenancy before the expiry of twelve months from the end of the then current year of the tenancy): section 25 (1). The only other potentially relevant provisions of the Act are section 26 and section 93. Section 26 provides:

The exceptions in section 26 (2) are not relevant in this case. Section 26 (1) plainly assumes that notice to quit has been “given to the tenant”.

Section 93 provides:

If there had been a deeming provision equivalent to section 93 (5) applicable to an assignment by the tenant, there would have been no problem. But there is not; and so we are thrown back on the common law. We have seen from section 26 that the need to serve a counter-notice only arises where notice to quit “is given to the tenant”. So the question is: was notice to quit given to the tenant?

In Mannai Investment Co Ltd v Eagle Star Assurance Co Ltd [1997] AC 749 the House of Lords considered the validity of a notice given under a contractual break clause contained in clause 7 (13) of a lease. Such a clause is in the nature of an option. Those of their Lordships in the majority distinguished between formal requirements on the one hand, and requirements to impart information on the other. Lord Steyn at 767 referred to what he described as “indispensable” conditions for the effective exercise of the right. Among them was “service (“on the landlord or its solicitors”)”. Lord Hoffmann illustrated the difference graphically at 776:

Lord Clyde said at 781:

It is, I think, clear from Mannai that if a notice fails to satisfy the substantive conditions upon which its validity turns, the question of how it is to be interpreted does not arise. In Trafford MBC v Total Fitness UK Ltd [2002] EWCA Civ 1513, [2003] 2 P & CR 2 the question was whether a break clause had been validly exercised. Having referred extensively to Mannai, Jonathan Parker LJ (with whom Mummery LJ agreed) said at [49]:

Neuberger J said much the same in Procter & Gamble Technical Centres Limited v Brixton Plc [2002] EWHC 2835 (Ch), [2003] 2 EGLR 24 at [17] to [21] (where a notice failed because it was served by the wrong person). At [36], having referred to Mannai, he said that there was “a potential difference between the wrong date and the wrong person identified in the notice”.

It is common ground that, at least in principle, the contents of valid notice to quit terminating a tenancy of an agricultural holding must satisfy the requirements of the common law. Woodfall on Landlord and Tenant (Looseleaf edition) states at para 17.196:

Woodfall goes on to state at para 17.235:

It is clear that at common law, notice to quit may be given orally: Doe d Macartney v Crick (1805) 5 Esp 196. But in the case of a written notice, there is a potential ambiguity in using the word “given”. It may simply mean that the tenant must receive the notice; or it may mean that not only must the tenant receive it, but also that if it is addressed to anyone, it must be addressed to him either by name or by designation.

As far as service is concerned, again the position is clear. Where the tenancy has been assigned by the original tenant, notice to quit must be served on the assignee (or his authorised agent). As an illustration of the general principle that a notice such as a notice to quit must be given to the holder of the tenancy at the date of the notice, both judges were shown the decision of this court in Old Grovebury Manor Farm Ltd v W Seymour Plant Sales & Hire Ltd (No 2) [1979] 1 WLR 1397. The case concerned the service of a notice under section 146 of the Law of Property Act 1925, but it is not suggested that any different principle applies to a notice to quit. The claim concerned a lease that had been granted to Mr Armstrong. Mr Armstrong, in breach of covenant, assigned the lease to Seymour Plant Sales and Hire Ltd. The landlord served a section 146 notice, but the notice was served on Mr Armstrong, rather than on Seymour Plant Sales. This court held that the notice was invalidly served. It should have been served on the person in whom the term was vested.

Mr Jourdan also relied on a decision of mine in Standard Life Investments Property Holdings Ltd v W&J Linney Ltd [2010] EWHC 480 (Ch), [2011] L & TR 9. In that case Capita granted a sub-lease of business property on terms that contained a break clause. The break clause was exercisable by giving notice to “the Landlord” as defined by the lease no later than August 2009. In 2004 Capita granted an overriding lease to Standard Life, and Linney paid rent to Standard Life. In 2008 Linney purported to exercise the break clause by giving notice addressed to and served on Capita. A copy of the notice was also sent to Jones Lang LaSalle as agents for Capita. It was not until after the last date for exercising the break clause that Standard Life was sent a copy of the notice. I held that the purposed exercise was invalid. Again, that was a case in which the notice had been given to the wrong person. I added at [24]:

That was a case where, on the facts, I took the view that it was not possible to say that Jones Lang LaSalle would have realised that a mistake had been made. It does not lay down any general principle.

In the present case, it is accepted that the notice was validly served. The notice to quit had to be given to the company. Section 93 (2) provides that notice is duly given to or served on an incorporated company if it is given [to] or served on the secretary or clerk of the company. Mr Thomas was the secretary of the company; and the notice to quit was served on him. So section 93 (2) is satisfied.

In Jones v Lewis (1973) 25 P & CR 375 two brothers, Henry and Emlyn Jones, were the tenants of a farm. The landlord decided to serve a notice to repair; but addressed it to Henry alone. Lord Denning MR (with whom the other members of the court agreed) said:

He then turned to consider whether the notice could be validated by section 92 (3) of the Agricultural Holdings Act 1948 (which was in the same terms as section 93 (3) of the 1986 Act). As to that, he said:

It is true to say that section 92 (3) did not deal with the contents of the particular notice that was served in that case (since they were prescribed by regulations). But it is perhaps arguable that it is an over-simplification to say that it only deals with service. That would give no effect to the word “given” in the phrase “be duly given or served if given to or served on that agent”. It may be that the word “given” was included in order to cater for the possibility of an oral notice to quit, which while no doubt unusual, is a theoretical possibility. But whether or not that is so, in my judgment we are bound by Jones v Lewis to hold that section 93 is only concerned with service of documents, and not with their form.

Mr Jourdan KC accepts that it is not a requirement of the common law that a notice to quit actually be addressed to the tenant by name. It may refer to the tenant by designation. It may even be addressed to no one at all in which event it will be valid if served on the tenant: Doe d Matthewson v Wrightman (1801) 4 Esp 5. But where the notice is addressed to a person by name, the person on whom it is to be served must be correctly identified. Although Mannai can rescue a notice where the name of a correctly identified recipient is wrongly spelled, it cannot rescue a notice where the recipient is wrongly identified. He summarises his argument pithily: this is not a case of the wrong language used to identify the right person: it is a case of the right language used to identify the wrong person. Although the court has the power to read a document (whether a contract or a notice) as if obvious mistakes had been corrected, that only applies where there has been an error in the language used, rather than a substantive error. Thus, he says, that where A gives a notice required to be “given to” B it cannot be validly given by a document addressed and delivered to C.

At the heart of Mr Jourdan’s argument is the proposition that because the landlord did not know that the lease had been assigned to the company, the notice to quit could not be understood to refer to an entity of which the landlord had no knowledge. The landlord made no mistake about the language of the notice. His mistake was about the identity of the tenant. There can be no real doubt that the landlord intended to give notice to quit to Mr Thomas personally. He had no reason to give notice to anyone else. It could not be right to conclude that the landlord intended to give notice to a company of whose existence he was completely unaware.

As Zacaroli J noted, in Mannai Lord Hoffmann gave as one of the examples of the correction of a mistake in a notice to quit Doe d Cox v Roe (1802) 4 Esp 185. In that case the landlord of a pub in Limehouse gave notice to quit “the premises which you hold of me . . . commonly called . . . The Waterman's Arms.” The evidence showed that the tenant held no premises called The Waterman's Arms; indeed, there was no pub in Limehouse called The Waterman’s Arms. Equally important, the tenant did not hold any other premises from the landlord. But the tenant did hold premises of the landlord called The Bricklayer's Arms. By reference to the background, the notice was construed as referring to The Bricklayer's Arms. The meaning was objectively clear to a reasonable recipient, even though the landlord had used the wrong name. If the tenant had held other premises from the landlord, or if there had indeed been a pub called The Waterman’s Arms in Limehouse, the position might well have been different.

In Harmond Properties Ltd v Gajdzis [1968] 1 WLR 1858 the tenant was Wladyslaw Gajdzis. Notice to quit was served on him addressed to “Walter Gajdzis”. This court held that the notice was valid. That was a case in which the correct recipient of the notice to quit had been identified and served, but his name was misspelled.

In Hawtrey v Beaufront Ltd [1946] 1 KB 280 Beaufront Ltd was the tenant of a house in Somerset, which became the company’s registered office. The landlord served notice to quit addressed to the directors of the company at the company’s registered office. The body of the notice stated:

The company argued that “you” in the notice meant the directors and that hence the notice was invalid. Croom-Johnson J rejected that argument. He said that the question was a question of construction and went on to say that:

The key, here, in my judgment is the inclusion in the notice of the details of the registered office, which can only have referred to the company. That too was, therefore, a case in which the right person had been identified.

The position is different, Mr Jourdan says, where the wrong person has been identified. In R (Morris) v London Rent Assessment Committee [2002] EWCA Civ 276, [2003] L & TR 5 a lease of a flat had been granted to Mr HG Barnby by Cadogan Estates in 1962. He assigned the lease to Mr Fry in 1979. Although the contractual term was limited to expire on 19 September 1995, the tenancy continued under Part I of the Landlord and Tenant Act 1954. On 21 April 1995 Cadogan Estates gave notice proposing a statutory tenancy. Section 4 of that Act required the notice to be “given to the tenant in the prescribed form”. The notice was addressed to “HG Barnby tenant of premises known as” (the address was then given). The notice was in fact served on Mr Fry who was the tenant at the date of the notice. This court held that the notice was invalid. Mummery LJ described the issue at [3] as whether notice had been given “to the tenant”. Although Mr Radley-Gardner KC correctly submitted that the form of notice was prescribed, that fact does not appear to me to have played any part in the court’s reasoning. In support of the validity of the notice it was argued that “HG Barnby” was no more than a misnomer, and that a reasonable recipient would have known that Mr Fry, rather than Mr Barnby, was the tenant of the flat. The mention in the notice of “tenant of premises” could only refer to Mr Fry. The argument in support of the appeal was entirely based on Mannai and other cases on the interpretation of notices. Mummery LJ rejected that argument. He said at [11]:

Mr Radley-Gardner stressed the fact that Mr Barnby had ceased to be the tenant of the flat many years before, whereas the gap between the assignment of the tenancy in this case and the notice to quit was only three days. Although that is a factual distinction between the two cases, I cannot see that it has any legal relevance.

Mr Jourdan illustrated his proposition further by reference to two decisions of the Inner House (which, while not formally binding, are of persuasive authority).

In Ben Cleuch Estates Ltd v Scottish Enterprise [2008] CSIH 1, [2008] SC 252 a lease contained a break clause which required the tenant to give one year’s notice to the landlord. The landlord was Ben Cleuch Estates Ltd, but the notice was addressed and sent to the landlord’s parent company with whom it shared a registered office. The notice was read by Mr Cairns, who was a director of both companies. The court held that the notice had not been validly given. Giving the opinion of the court, Lord Macfadyen said at [60]:

At [62] he dealt with the argument that the notice could be regarded as addressing the landlord, whoever he might be. He rejected that argument:

Thus the fact that the notice was addressed to someone other than the landlord was a failure to comply with a formal condition. He added at [64]:

That case was followed by another division of the Inner House in Balgray Ltd v Hodgson [2016] CSIH 55, 2016 SLT 839. In that case Mr Hodgson farmed two farms under two tenancies. One was owned by Mr Jardine Paterson. The other was owned by Balgray Ltd of which Mr Jardine Paterson was a director. The tenant in each case was a partnership of which Mr Hodgson was the general partner and Mr Jardine Paterson and Balgray were limited partners. Under the relevant legislation, where a limited partnership was dissolved the general partner could become the tenant by giving notice to the landlord. Notice was given to Mr Jardine Paterson in respect of the farm owned by Balgray; and the question was whether it was valid. The Inner House at [28] described the reasoning of the Land Court (from which the appeal was brought) had said as follows:

The Inner House expressed its own conclusion at [32]:

The Inner House concluded at [33]:

Mr Radley-Gardner suggested that there might be a difference between Scots law and English law, although the difference was not identified. I also note that in Ben Cleuch the authorities listed at [54] as having been cited in support of the appeal include both Scots and English cases; and the Inner House decided the case in accordance with both. These cases and Morris seem to me to send a clear message. If a notice is addressed to A (by his correct name) and sent to A’s proper address, it cannot be treated as a notice given to B.

There is some further support for that view in Doe d Carlisle (Earl) v Woodman (1807) 8 East 228, although it is not an easy case to understand. In that case the Earl of Carlisle had let land to the Corporation of Morpeth as tenant from year to year. He served notice to quit on two bailiffs or head officers of the corporation purporting to terminate the tenancy; and then brought an action in ejectment against them. The corporation itself was not made a party to the action. The two bailiffs successfully moved for a non-suit. The argument for Lord Carlisle was that the corporation could not have had possession and could not have been served with notice to quit. That argument was rejected, but the three judges gave different reasons for their decision, which do not make for easy reconciliation. I quote their reasons in full:

Lord Ellenborough appears to have decided the case on the basis that the bailiffs were not in possession on their own account, and hence were not the proper defendants. Lawrence J appears to have decided the case on the basis that trespass could not be maintained against the corporation at all (although the reasons for that conclusion are, to my mind, obscure). Le Blanc J appears to have decided the case on the basis the bailiffs were not affected by what their predecessors as bailiffs had done. It is, however, fair to say that both Lawrence J and Le Blanc J seem to have taken the view that the notice to quit had not validly terminated the tenancy. The form of the notice is not given in the report, so it is difficult to extract any clear principle from it.

On the other side of the debate are the obiter observations of Sir Robert Megarry V-C in Townsends Carriers Ltd v Pfizer Ltd (1977) 33 P & CR 361. That case, like many others, concerned the exercise of a break clause in a lease. The landlord in that case was Townsend, and the tenant was Pfizer. A letter purporting to exercise the break clause was sent by Unicliffe, an associated company within the Pfizer group, to Wilkinson Transport, which like Townsend was a subsidiary of Lex Services. The Vice Chancellor held that the break clause had been validly exercised. The notice relied on referred to:

It then went on to give formal notice to terminate. The case was, in my judgment, decided on the basis of general agency, which arose from the mutual course of dealing. But the Vice-Chancellor went on to say at 366:

In addition to that, there is the decision of this court in Lazarus Estates Ltd v Beasley [1956] 1 QB 702. That case concerned the validity of notices given under the Housing Repairs and Rents Act 1954. They were addressed to “Mr E. G. Brasley, tenant of 13, The Palatinate, S.E.1,” though Mrs Violet Beasley had become the statutory tenant of the flat on the death of her husband, Mr E C Beasley, two years previously. The notice thus contained a number of defects. First, it purported to be addressed to a previous tenant; and second it mis-stated the name of that former tenant. Nevertheless, Mrs Beasley’s challenge to the notice on that ground failed. Denning LJ said at 710:

Morris LJ said at 713:

Parker LJ said at 722:

In that case, all three members of the court appear to have asked themselves whether Mrs Beasley was in fact misled, rather than how a reasonable recipient would have understood the notice objectively. Denning and Morris LJJ relied also on the fact that the notice was addressed to “the tenant” by designation, and Parker LJ’s judgment hints at waiver of the defect or estoppel. In addition, however, Mrs Beasley’s appeal was allowed on other grounds, so strictly speaking those observations may also be obiter.

Accordingly, in my judgment we are bound by Morris.

Mr Radley-Gardner correctly submitted that, as with many areas of the law, it is important to frame the question to be asked before attempting to answer it. In Mannai at 768 Lord Steyn summarised the test as follows:

Mr Radley-Gardner submitted that it was obvious what the landlord was trying to do: he was trying to terminate the tenancy by notice to quit. But in my view that poses the question at too high a level of generality. In Mannai the right being exercised was the right to terminate the lease in accordance with clause 7 (13) on the third anniversary of the term. That clause was specifically invoked in the notice under consideration in that case. The right being exercised in this case was not simply a right to terminate the tenancy by notice to quit. It was the common law right to terminate a tenancy by giving notice to quit to the tenant. As Lord Steyn accepted at 773 not all mistakes can be corrected. Similarly, Lord Clyde said at 781 that there are some cases where the validity of the notice cannot be saved by any construction and will have to be regarded as bad. Contrary to Mr Radley-Gardner’s submission, therefore, some mistakes are outside the reach of Mannai. In my judgment, as in Morris, this is one of them. Lord Hoffmann at 775 posed a slightly different question. In his view all that matters “is the objective meaning of the words which [the giver of the notice] has used”. At 779 he equated that with “the meaning [that] the use of the words was intended to convey”. The Mannai principle in his view prevented one party from taking adventitious advantage of “another’s verbal error”. If that test is applied; the question is: can a notice addressed to Mr Thomas by name, and repeatedly asserting that he is the tenant be understood to mean that the notice was addressed to a company of which the landlord knew nothing? In my judgment the answer to that question is “no”. Since the reasonable recipient in the shoes of Mr Thomas knew that the landlord was unaware of the assignment, he would not have understood the notice as referring to the company. There was no verbal error: there was a factual one.

Moreover, as both Morris (which binds us) and the Scottish cases hold, whether a notice addressed to and received by A is a notice “given” to B is not a question of interpretation at all. It is a question of satisfying formal conditions. They hold that a notice addressed to A and received by A cannot be regarded as being a notice given to B, even if A knows that B would have been the correct recipient of it.

It is also, I think, important to distinguish between what the landlord would have done if he had better knowledge and what in fact he did. No doubt if he had known the true facts, he would have given notice to quit to the company. But that is not what he did. Equally, it is important to distinguish between what the landlord could have done (i.e. not named the tenant at all, or described the tenant simply as “the tenant”) and what he in fact did.

For the reasons I have given, I do not consider that the question that Zacaroli J posed at [36] was the only question. The question he was answering was what the notice to quit meant. But the anterior question was whether the notice was “given to” the tenant. I do not consider that it was. But even if the question that Zacaroli J posed was the right question, I do not consider that he reached the right answer to it.

I reach that conclusion with some reluctance, because it seems to me to be clear that the landlord fell into a trap wittingly or unwittingly created by the tenant. But I do not think that, consistently with principle, we can rescue him from it. I would allow the appeal.

I agree.

I also agree.