Sinclair Gardens Investments (Kensington) Ltd v Poets Chase Freehold Company Ltd

The issue in this case arises out of the right to collective enfranchisement conferred

Sinclair Gardens Investment (Kensington) Limited is the freehold owner of 9 blocks of flats at Poets Chase, Aylesbury, Buckinghamshire. The point arising in this appeal relates to each of these 9 blocks. There are altogether some 9 actions in the County Court, one action relating to each block. The County Court has ordered that one of these actions should be the lead action and this appeal is brought in the lead action. The lead action concerns a block of 12 flats, the flats being numbered 1, 3, 5, 7, 9, 11, 15, 17, 19, 21, 23 and 25 Poets Chase, Aylesbury.

The block of flats, the subject of this appeal, comprises premises to which Chapter I of Part I of the 1993 Act applies. The other conditions as to the entitlement of the tenants to give notice seeking collective enfranchisement under Chapter I, Part I of the 1993 Act are satisfied. As it happens, it does not strictly matter for the purposes of this appeal whether these qualifications are met or not as the point does not turn upon the entitlement to exercise a right to collective enfranchisement but relates to the form of the document served for the purpose of seeking to exercise that right.

In the first instance, I will describe the various notices in this case only briefly as it will be necessary to return to those notices and discuss their detailed provisions after I have described the relevant statutory provisions.

On or about the 19^th December 2005, the tenants of 8 out of the 12 flats in the relevant block served on the landlord a notice which purported to be a notice under Section 13 of the 1993 Act. The notice referred to a company known as Poets Chase Freehold Company Limited. The notice stated that the date by which the landlord was to serve any counter-notice under Section 21 of the 1993 Act was 28^th February 2006.

On about the 22^nd February 2006, the landlord gave to Poets Chase Freehold Company Limited a notice dated 22^nd February 2006, which notice purported to be a counter-notice under Section 21 of the 1993 Act. In summary, this counter-notice asserted that the purported Section 13 notice dated 19^th December 2005 did not comply with the requirements of Section 13(3) of the 1993 Act.

On the 20^th April 2006, the solicitors for the tenants wrote to the landlord. The letter stated that the tenants had considered the counter-notice served by the landlord and the tenants now accepted that the purported Section 13 notice dated 19^th December 2005 was invalid for the reasons given in the counter-notice. The letter dated 20^th April 2006 went on to say that the tenants were entitled to, and sought to, serve a fresh Section 13 notice.

On or about 20^th April 2006, the same 8 tenants in the block in question served a further notice purporting to be given under Section 13 of the 1993 Act. This notice corrected the matters complained of in the landlord’s counter-notice of 22^nd February 2006 in respect of the original purported Section 13 notice dated 19^th December 2005.

On or about 26^th June 2006, the landlord gave to Poets Chase Freehold Company Limited a further purported counter-notice. The document contained a number of legal contentions as to the ability of the tenants to serve a Section 13 notice on the 20^th April 2006 in view of the fact that they had earlier served a purported Section 13 notice dated 19^th December 2005.

On 31^st July 2006, Poets Chase Freehold Company Limited, as nominee purchaser, brought the present proceedings. In its Particulars of Claim, that company pleaded the sequence of notices, contended that the notice dated 19^th December 2005 did not comply with Section 13 of the 1993 Act so that that notice was not a notice under Section 13 of the 1993 Act and, accordingly, that the tenants were not precluded from serving a valid Section 13 notice on 20^th April 2006. The Particulars of Claim claimed declaratory relief and the claim was said to be made under Section 22 of the 1993 Act.

On or about 21^st August 2006, the landlord served a witness statement from its solicitor. The witness statement referred to the sequence of notices and contended that the notice dated 19^th December 2005 failed to comply with Section 13(3) of the 1993 Act. The witness statement then contended that the service of the purported Section 13 notice dated 19^th December 2005 meant that the tenants were not able to serve a Section 13 notice on the 20^th April 2006.

The issue as to the effect of the notice of 20^th April 2006 came before His Honour Judge Collins (in the Central London County Court) and he gave judgment on 15^th December 2006. At the hearing in the County Court, the nominee purchaser maintained the stance that the purported Section 13 notice of 19^th December 2005 did not comply with Section 13 of the 1993 Act. However, the landlord appears to have changed its position. Notwithstanding the landlord’s contentions in the counter-notice of 22^nd February 2006 and in the solicitor’s witness statement, the landlord appears to have argued that the notice dated 19^th December 2005 did sufficiently comply with Section 13.

In the end, the Judge held that the notice 19^th December 2005 did not comply with Section 13(3)(d) of the 1993 Act although he held, notwithstanding the nominee purchaser’s submissions to the contrary, that the notice sufficiently complied with Section 13(3)(f) of the 1993 Act. The Judge next held that because the notice dated 19^th December 2005 did not comply with Section 13 of the 1993 Act, it was invalid and so it did not preclude the tenants from serving a notice on 20^th April 2006 which did comply with Section 13 of the 1993 Act.

The Judge then considered arguments put forward by the landlord that the tenants and the nominee purchaser were estopped from challenging the efficacy of their own notice of 19^th December 2005. The Judge rejected the landlord’s case on estoppel.

The result of the hearing in the County Court was that the Judge declared that the relevant tenants were entitled to exercise the right to collective enfranchisement in relation to the premises specified in the notice dated 20^th April 2006, that the counter-notice dated 26^th June 2006 was of no effect and that the landlord should serve a further counter-notice if so advised by 1^st March 2007. Judge Collins granted permission to the landlord to appeal.

The issue as to the effect of the notice dated 20th April 2006 is of particular relevance to the parties because of the provisions of paragraph 4(2A) of Schedule 6 to the 1993 Act. That paragraph applies where, at the date of service of a Section 13 notice, the unexpired term of the lease held by any of the participating members exceeds 80 years. In such a case, the requirement that the tenant pay a share of marriage value pursuant to paragraph 4 of Schedule 6 to the 1993 Act is removed. On 20^th April 2006, the participating tenants who served the notice of that date had leases with terms exceeding 80 years but on the 1^st September 2006 those terms became shorter than 80 years. Accordingly, the tenants wish to establish, and the landlord wishes to deny, that the notice dated 20^th April 2006 was an effective notice under Section 13 of the 1993 Act.

Before considering the submissions of Counsel, it is appropriate to refer to the statutory provisions. It is necessary to review many of the statutory provisions to form a clear picture as to how the provisions are intended to operate. The provisions are too lengthy to be set out verbatim. Accordingly, in relation to the majority of the provisions, I will attempt only a paraphrase of them. It must be recognised that my paraphrase is for the purposes of giving judgment on the specific issue in this case and is not by way of exhaustive annotation of the statutory provisions. I will refer to the provisions in force at the relevant time although it should be remembered that some of these provisions are the subject of prospective amendment where the amendments had not been brought into effect at the relevant time, nor indeed since that time.

Section 1(1) of the 1993 Act provides that Chapter I of Part I has effect, for the purpose of conferring on qualifying tenants of flats, contained in premises to which Chapter I applied on the relevant date, the right, exercisable subject to and in accordance with Chapter I, to have the freehold of those premises acquired on their behalf by a person appointed by them for that purpose and at a price determined in accordance with Chapter I. This right is referred to in Chapter I as “the right to collective enfranchisement”. Section 1(2) and Section 1(3) have the effect that the right to collective enfranchisement may be exercised not only in relation to the premises to which Chapter I applies (“the relevant premises”) but also certain appurtenant property. Section 1(8) defines “the relevant date” to be the date of the notice of claim under Section 13.

Section 3 defines the premises to which Chapter I applies. Section 4 excludes certain premises from the right to collective enfranchisement.

Section 5 defines “qualifying tenants”. Section 6 had formerly identified a residence requirement for qualifying tenants but that requirement has since been removed. Section 7 defines “a long lease”. Section 9 describes the reversioner and other relevant landlords for the purposes of Chapter I.

Section 12 entitles a qualifying tenant to obtain information about certain matters. Under Section 12(2), a qualifying tenant is entitled to obtain information as to whether a landlord has received a notice under Section 13 of the 1993 Act in the case of which the relevant claim is still current. Section 12(4) also refers to a notice under Section 13.

Section 13 of the 1993 Act is in these terms:

A notice given under this section ("the initial notice")--

must

. . .

is not less than one-half of the total number of flats so contained;

a person who owns a freehold interest in the premises, or

The initial notice must--

specify and be accompanied by a plan showing--

specify--

specify the proposed purchase price for each of the following, namely--

the freehold interest in any property specified under paragraph (a)(ii), and

any leasehold interest specified under paragraph (c)(i);

. . .

. . .;

. . .

Where any premises have been specified in a notice under this section and--

the premises specified in the initial notice under subsection (3)(a)(i), or

Section 14 describes the participating tenants as, essentially, the qualifying tenants by whom the Section 13 notice is given. Section 14 contemplates that the identity of participating tenants may change by reason of an assignment of a lease or an election to participate.

Section 17 deals with rights of access. Once an initial notice has been given in accordance with Section 13, the reversioner and other relevant landlords have a right of access to certain premises. Further, under Section 17(2) once the initial notice has been given in accordance with Section 13, the nominee purchaser has certain relevant rights of access.

Section 19 of the 1993 Act describes the effect of the Section 13 notice as respects subsequent transactions by the freeholder of the premises. Section 19(1) refers to the Section 13 notice being registered in accordance with Section 97(1). Section 97(1) permits registration of a notice given under Section 13. When a Section 13 notice has been registered then so long as the Section 13 notice continues in force, there are restrictions on the freeholder disposing of interests in the premises.

Under Section 20 of the 1993 Act, within 21 days beginning with “the relevant date”, which refers to the date of Section 13 notice, the reversioner may give the nominee purchaser a notice requiring him to deduce title in certain respects.

Sections 21(1) and (2) of the 1993 Act provide:

Section 22 of the 1993 Act provides:

Where--

declaring that the reversioner's counter-notice shall be of no effect, and

Subsection (3) shall not apply if--

the counter-notice complies with the requirement set out in section 21(2)(c), and

either--

an application for an order under section 23(1) is pending, or

Under Section 24, where the reversioner has given the nominee purchaser a counter-notice which admits the entitlement to exercise the right to collective enfranchisement but any of the terms of the acquisition remain in dispute then the matter is to be referred to a leasehold valuation tribunal.

Section 25 deals with the case where the reversioner has failed to give a counter-notice. In those circumstances, the court may on the application of the nominee purchaser make an order determining the terms on which he is to acquire such interests and rights as are specified in the Section 13 notice under Section 13(3). The terms in the order are to be “in accordance with the proposals contained in the initial notice”. I interpose that it has been held by the Court of Appeal in Willingale v Globalgrange Limited [2000] 2 EGLR 55 that the court does not have a discretion as to the terms of the acquisition but must adopt the proposals contained in the Section 13 notice. This is subject to Section 25(3) which provides that the court must not make an order determining the terms of the acquisition unless the court is satisfied, in particular, that the participating tenants were on the relevant date entitled to exercise the right to collective enfranchisement in relation to the specified premises.

Section 28 deals with the participating tenants withdrawing from the proposed acquisition. By Section 28(1), at any time before a binding contract is entered into in pursuance of the initial notice, the participating tenants may withdraw that notice by the giving of a notice to that effect under Section 28 (“a notice of withdrawal”). Section 28 does not identify any particular formality as to the contents of a notice of withdrawal. Section 29 deals with the situations in which there is a deemed withdrawal of the Section 13 notice. It is not necessary to list those situations although it is right to point out that there can be a deemed withdrawal in a large number of different situations.

Sections 30 and 31, dealing with the very different matters of compulsory acquisition and inheritance tax, refer to a notice “given under Section 13” being “of no effect”.

Section 32 deals with the determination of the price payable for the acquisition and cross refers to detailed provisions in Schedule 6 to the 1993 Act.

Section 33(1) provides for circumstances where a notice is given under Section 13 for the nominee purchaser to be liable for the landlord’s costs of certain matters and in particular, any investigation reasonably undertaken of the question whether any interest in the specified premises or other property is liable to acquisition in pursuance of the Section 13 notice, or of any other question arising out of the Section 13 notice. Section 33 refers in a number of places to the Section 13 notice “ceasing to have effect”.

Section 37A of the 1993 Act was introduced by amendment contained in the Housing Act 1996 Section 116 Schedule 11 paragraph 2(1). It is in my view, a significant provision and is designed to deal with some of the consequences of paragraph 10 of Schedule 3 to the 1993 Act, to which I later refer. Section 37A provides for certain circumstances in which a landlord is entitled to compensation for the postponement of termination of a tenancy in connection with ineffective claims. Section 37A(1) refers to a claim to exercise the right to collective enfranchisement being “not effective”. Section 37A(2) refers to such a claim ceasing “to have effect”. Section 37(8) defines a “claim to exercise the right to collective enfranchisement” and “the date on which a claim ceases to have effect”. It should be emphasised that these definitions are for the purposes of Section 37A and are not for the purposes of Chapter 1 of Part 1 more generally. Thus, Section 37A(8) defines “a claim to exercise the right to collective enfranchisement” so that it includes “a notice given, or purporting to be given (whether by persons who are qualifying tenants or not), under Section 13”. Further, the phrase “the dates on which the claim ceases to have effect” extends “in the case of a claim made by a notice which is not a valid notice under Section 13” to “the date on which the notice is set aside by the court or is withdrawn or would, if valid, cease to have effect or be deemed to have been withdrawn”.

Section 38(1) defines “the initial notice” to mean “the notice given under Section 13”.

Section 90 deals with the jurisdiction of the county court. By Section 90(1), any jurisdiction expressed to be conferred on the court by Part I of the 1993 Act is to be exercised by a county court. By Section 90(2), it is provided that any proceedings for determining any question arising under or by virtue of any provision of Chapter I which is not a question falling within Section 90(1) (or within the jurisdiction of a leasehold valuation tribunal by virtue of Section 91) is also to be brought in a county court.

Section 99 deals, generally, with the subject of notices. By Section 99(5), a notice given under Section 13 must be signed by each of the tenants by whom it is given.

Schedule 3 to the 1993 Act contains supplementary provisions in relation to a notice under Section 13. Paragraphs 5, 6, 7 and 8 place various restrictions on the action which may be taken by a landlord during the currency of a claim under Section 13. Paragraph 10 of Schedule 3 contains a number of relevant definitions but it should be noted these definitions are for the purposes of Part 1 of Schedule 3 to the 1993 Act and are not of wider application. By paragraph 10(1)(b), references to a notice under Section 13 include, insofar as the context permits, references to a notice purporting to be given under Section 13 (whether by persons who are qualifying tenants or not). By paragraph 10(1)(d) references to “the currency of a claim”, in a case where the claim is made by a notice “which is not a valid notice under Section 13” are references to the period beginning with the giving of the notice and ending with the time when the notice is set aside by the court or is withdrawn or when it would (if valid) cease to have effect or be deemed to have been withdrawn.

Paragraph 15 of Schedule 3 to the 1993 Act deals with inaccuracies or misdescriptions in a notice under Section 13. It is provided that the notice under Section 13 is not to be invalidated by an inaccuracy in any of the particulars required by Section 13(3) or by any misdescription of any of the property to which the claim extends. Paragraph 15(2) provides for the possibility of an amendment of the Section 13 notice to exclude or include any property or any interest. Paragraph 15(3) provides for the way in which the Section 13 notice operates in the case of such an amendment.

For the sake of completeness, I will refer briefly to the provisions of Chapter II of Part I of the 1993 Act. Chapter II provides for the individual right of a tenant of a flat to acquire a new lease of that flat. The scheme of Chapter II is, in many respects, similar to the scheme of Chapter I. There is one important difference in that, for the purposes of Chapter I, where qualifying tenants give notice under Section 13 which is met by a reversioner’s counter-notice under Section 21 which does not admit the tenants’ entitlement to exercise the right to collective enfranchisement, the relevant proceedings before the court to test that matter are to be brought by the nominee purchaser. In the case of Chapter II where a tenant gives a notice under Section 42 to exercise the right to acquire a new lease of a flat and is met by a landlord’s counter-notice under Section 45 which does not admit the tenant’s right to acquire a new lease of the flat, the application to the court to test that matter is to be brought by the landlord under Section 46. In the past, decisions of the courts in relation to Chapter II of Part 1 of the 1993 Act have been regarded as relevant for the purpose of construing Chapter 1 of Part I of the 1993 Act, and vice versa.

Having described the relevant statutory provisions, I can now return to the various notices served in this case. The notice dated 19^th December 2005 related to the relevant block of 12 flats at Poets Chase Aylesbury. The notice was given by the lessees of 8 of the 12 flats. These lessees were the participating tenants. Paragraph 1 of the notice identified the premises, of which the freehold was proposed to be acquired pursuant to Section 1 (1) of the 1993 Act, as the block itself. Paragraph 2 of the notice identified the property, of which the freehold was proposed to be acquired by virtue of Section 1 (2) (a) of the 1993 Act, as certain appurtenant property. Paragraph 3 of the notice identified certain rights which it was proposed should be granted over other land. Paragraph 5 of the notice stated that the proposed purchase price was £17,953. Paragraph 7 of the notice contained the following statement: “the RTE Company appointed to act is Poets Chase Freehold Company Limited.”

The notice dated 22^nd February 2006 was described as a counter-notice by the reversioner pursuant to Section 21 of the 1993 Act. This notice did not admit, for the reasons specified in the counter-notice, that the participating tenants were entitled to exercise the right to collective enfranchisement in relation to the specified premises. Paragraph 2 of the counter-notice gave the reasons for not admitting the entitlement to exercise the right to collective enfranchisement. The reasons given in paragraph 2 of the counter-notice did not relate to any question as to whether the participating tenants satisfied the qualifying conditions for being able to exercise the right to collective enfranchisement but were all concerned with the question whether the notice dated 19^th December 2005 did or did not comply with Section 13(3) of the 1993 Act. The first point that was made was that Section 13(3)(d) of the 1993 Act required the Section 13 notice to specify separate prices for the property being acquired under Section 1(1) of the 1993 Act and the property being acquired under Section 1(2)(a) of the 1993 Act. The notice dated 19^th December 2005 had not specified separate prices. The second point made in the counter-notice was that Section 13(3)(f) required a Section 13 notice to state the full name of the person nominated as purchaser whereas the notice dated 19^th December 2005 had referred to the RTE Company. I have set out Section 13(3)(f) earlier in this judgment. That paragraph, in the form in which it applied at the relevant time did require the Section 13 notice to state the full name of the person appointed as the nominee purchaser. By the date of the notices in this case, Section 13(3)(f) was the subject of an identified amendment under Section 124 of the Commonhold and Leasehold Reform Act 2002. That amendment had not been brought into force at the relevant time and when it does come into force it will require the Section 13 notice to give the name and registered office of the RTE Company. It is plain that the notice dated 19^th December 2005 had wrongly proceeded on the basis that the prospective amendment of Section 13(3)(f) was already in force. Paragraph 2 of the counter-notice ended with the contention on the part of the landlord that an Initial Notice had not been served in compliance with the 1993 Act and in particular with the mandatory requirements of the Act in relation to participating tenants exercising the right to collective enfranchisement in relation to specified premises.

It is convenient to deal with the grounds of objection to the notice dated 19^th December 2005 at this point. Before the Judge in the County Court, the nominee purchaser, Poets Chase Freehold Company Limited, adopted the criticisms in the counter-notice and submitted that the notice dated 19^th December 2005 did not comply with Section 13(3) of the 1993 Act. The landlord submitted the contrary, notwithstanding the position it had adopted in its counter-notice. The Judge ruled on the two grounds of objection under Section 13(3)(d) and 13(3)(f) respectively. He held that the objection based upon Section 13(3)(d) was well founded but the objection based on Section 13(3)(f) was not. In relation to the second point, the judge directed himself that he was able to apply to the notice dated 19^th December 2005 the test in Mannai Investment Co Limited v Eagle Star Life Assurance Co Limited [1997] AC 749 as to how a reasonable recipient would have understood the notice. He held, applying that test, that a reasonable recipient would have understood that the notice, when it referred to the RTE Company, was referring to the nominee purchase, who therefore was identified as Poets Chase Freehold Company Limited. The overall conclusion reached by the Judge was that the notice dated 19^th December 2005 did not comply with the mandatory requirements of Section 13(3) of the 1993 Act with the result that the participating tenants would not have been able to advance their claim to acquire the freehold of the block and the appurtenant property in reliance on that notice.

Returning to the chronology in respect of the notices, the next event was the letter from the tenants’ solicitors to the landlord on the 20^th April 2006. This letter stated that the tenants had considered the counter-notices served by the landlord and that the tenants accepted that the notice dated 19^th December 2005 was invalid for the reasons given in the counter-notice. The letter went on to say that as no valid Initial Notice had been served, the tenants were entitled to serve a fresh notice and under the cover of the letter they sought to do so.

Under cover of the letter of 20^th April 2006, the same participating tenants sought to serve a further notice seeking to comply with Section 13 of the 1993 Act. This notice did not have the defects which had existed in the notice of 19^th December 2005.

On the 26^th June 2006 the landlord served a notice which purported to be a counter-notice under Section 21 of the 1993 Act. This counter-notice did not admit that the participating tenants were entitled to exercise the right to collective enfranchisement in relation to the relevant premises. This non admission was for the reasons specified in the counter-notice. Paragraph 2 of the counter-notice contained the reasons relied upon. The reasons in paragraph 2 all related to the fact that the participating tenants had served the earlier notice of 19^th December 2005 and in various ways it was contended that this disabled the participating tenants from serving a valid Section 13 notice (as they had sought to do) on the 20^th April 2006. The reversioner’s counter-notice of 26^th June 2006 did not raise any question as to the participating tenants’ satisfaction of the qualifying conditions or in any other respect as to their entitlement to acquire the freehold of the block under Chapter I of Part I of the 1993 Act.

Mr Fancourt QC, who appeared on behalf of the landlord, took me carefully through the provisions of Chapter I of Part I of, and of Schedule 3 to, the 1993 Act. He submitted that it was essential to understand the operation of the scheme created by those provisions for the purpose of deciding the issue on this appeal. Turning to Section 13, he submitted that a notice which did not comply with Section 13(2) was not “given in accordance with” Section 13 and he explained the consequences of a purported notice not complying with Section 13(2). Conversely, if a notice did comply with Section 13(2) then it was given in accordance with Section 13. Further, a notice which purported to be given under Section 13 was a notice “under Section 13” whether or not the purported notice complied with all of the requirements of Section 13(3). He contrasted the position of a notice which did not comply with Section 13(2) with a notice which did not comply with Section 13(3). He referred to the phrase “entitled to exercise the right to collective enfranchisement” which appears in Section 21 dealing with the reversioner’s counter-notice and in Section 22 which, according to the heading to the section, deals with proceedings relating to the “validity of initial notice”. He submitted that this phrase, referring to the entitlement to exercise the right to collective enfranchisement, referred, first, to questions as to whether the qualifying conditions for the existence of entitlement were satisfied but, secondly and further, to a matter such as whether a notice complying in all respects with Section 13 of the 1993 Act had been served in order to exercise that entitlement. Whilst it was clear that a notice given in accordance with Section 13(2), but which did not comply with Section 13(3), was still a notice under Section 13, the position was even more clear following the giving of a counter-notice under Section 21. The existence of the counter-notice meant that disputes about the validity of the initial notice (including disputes as to compliance with Section 13(3)) had to be processed under Section 22. While that process was ongoing, the notice in question was a notice given under section 13 and “continued in force” for the purposes of Section 13(8). That meant that following the giving of a counter-notice the nominee purchaser could apply under Section 22 to ask the court to determine whether the purported Section 13 notice did or did not comply with Section 13(3). If the court determined that the purported Section 13 notice did not comply with Section 13(3) then the purported Section 13 notice ceased to have effect at that time under Section 22(6). If the nominee purchaser did not apply to the court under Section 22 within the time limit laid down by that section then there was a deemed withdrawal under Section 29(1). It was also open to participating tenants who had served a purported Section 13 notice but who later realised that the notice did not comply with Section 13(3) to withdraw it under Section 28. The prohibition on further notices contained in Sections 13(8) and 13(9) should be applied in accordance with this understanding of the statutory provisions.

In the alternative to these submissions, Mr Fancourt submitted that the participating tenants and the nominee purchaser were estopped from asserting that the notice dated 19^th December 2005 did not comply with Section 13(3). The relevant estoppel was estoppel by representation. By giving the notice dated 19^th December 2005, the participating tenants and the nominee purchaser had represented that that notice complied with Section 13(3). The reversioner had relied upon that representation because it received the notice, instructed its solicitors to consider the notice and to advise the reversioner on the appropriate response to the notice. Although there was no specific evidence to this effect, it was to be inferred that the reversioner had become liable to pay its solicitors a fee for acting on the reversioner’s instructions. The reversioner then served the counter-notice dated 22^nd February 2006. This amounted to detrimental reliance on the part of the reversioner and it should be held that it would be inequitable for the participating tenants and the nominee purchaser to contend for the invalidity of their own notice dated 19^th December 2005. Accordingly, all the necessary ingredients of an estoppel were established.

Miss Wood appeared on behalf of the nominee purchaser. She submitted, by reference to the statutory provisions, that there was a clear distinction to be made between the entitlement of tenants to exercise the right to collective enfranchisement and the requirements as to the form and contents of a notice under Section 13 by which the tenants sought to exercise that right. The operation of Section 21 (dealing with the reversioner’s counter-notice) and of Section 22 (dealing with applications to the court) had to be considered consistently with that distinction. A question as to the tenants’ underlying entitlement to exercise the right to collective enfranchisement was properly the subject of Sections 21 and 22. A question as to whether the tenants, who were entitled to exercise the right to collective enfranchisement, had served a notice complying with Section 13(3) was not properly the subject of Sections 21 and 22. In the present case, the County Court Judge had found that the notice dated 19^th December 2005 did not comply with the mandatory requirements of Section 13(3)(d). In accordance with the usual position as to validity of notices, that conclusion must mean that the notice dated 19^th December 2005 was invalid. More particularly, it was not a notice given under Section 13 nor was it a notice given in accordance with Section 13. Because it was invalid it had no force and could not to be said to “continue in force” for the purpose of Section 13(8). The result was that the tenants were, absent any estoppel, entitled to accept the invalidity of the notice of 19^th December 2005 (particularly when that invalidity had been pointed out by the landlord) and to serve the notice dated 20^th April 2006 which would be, for the first time, a notice under Section 13. Miss Wood further submitted that Mr Fancourt’s contention that a notice which did not comply with Section 13(3) was nonetheless a notice under Section 13 would result in the 1993 Act failing to operate. She gave, as examples, a purported notice under Section 13 which did not identify a nominee purchaser in accordance with Section 13(3)(f) or a notice which purported to be given under Section 13 but which did not specify a date for a counter-notice under Section 21 (as required by Section 13(3)(g)). She questioned how the provisions of the 1993 Act could work if such a notice was a notice under Section 13 and was registered under Section 97(1) leading to a fetter on the landlord’s right to make disposals under Section 19. She also pointed out anomalies which would arise if one followed through Mr Fancourt’s analysis which distinguished a notice which did not comply with Section 13(3) (which he said was a notice under Section 13) from a notice which did not comply with Section 13(2) (which he said was not a notice under Section 13).

As to estoppel, Miss Wood submitted that the participating tenants and the nominee purchaser did not make any relevant representation. In particular, they did not represent that the notice dated 19^th December 2005 was a valid notice or that it complied with Section 13(3). What they did was to make a statement that they wished to serve a notice under Section 13 rather than that they had effectively done so. In any case, the landlord did not rely on the alleged statement as to the validity of the notice of 19^th December 2005. The landlord in its counter-notice immediately contradicted that alleged statement and could not be said to have relied upon it. Further, the landlord did not act to its detriment. Even if the landlord had incurred some liability for fees to its solicitors, the sum in question must have been modest and would be too trivial to give rise to an estoppel in this case. Further, even if there was a measurable element of detrimental reliance, there was not sufficient detrimental reliance to make it inequitable for the participating tenants and the nominee purchaser to agree with the landlord in relation to the landlord’s contention that the notice of 19^th December 2005 did not comply with Section 13(3).

These submissions require one to examine the scheme of Chapter I of Part I of the 1993 Act and to determine the effect, if any, of a document which purports to be a notice under Section 13 of the 1993 Act but which fails to comply with the mandatory requirements of Section 13(3).

The County Court Judge has held that the notice dated 19^th December 2005 failed to comply with the mandatory requirement contained in Section 13(3) (d) of the 1993 Act. There is no appeal by either party against that decision. That decision means that the tenants would not be able to pursue their aim of acquiring the freehold of the block by relying upon the notice dated 19^th December 2005.

Speaking generally, if a mandatory contractual or statutory provision requires a party to give a notice in a particular form in order to achieve a result identified in the contract or statute and if a purported notice given by that party fails to comply with the mandatory contractual or statutory provision, then the normal position is that the notice has no legal effect. This general position may be modified by, for example, a provision such as that contained in paragraph 15 of Schedule 3 to the 1993 Act which deals with inaccuracies and misdescriptions in a Section 13 notice. However, the County Court Judge has held that the notice dated 19^th December 2005 was not saved by that statutory provision. Further, the general position is modified by the application of the Mannai test as to the reaction of a reasonable recipient to the imperfect notice. Again, the County Court Judge has held that the notice dated 19^th December 2005 was not saved by an application of the Mannai test. It was held by the Court of Appeal in Speedwell Estates Limited v Dalziel [2002] L&TR 180 that a notice which does not comply with mandatory statutory requirements and which is not saved by a provision such as paragraph 15 of Schedule 3 to the 1993 Act in the present case or by the Mannai test is invalid; that case concerned the Leasehold Reform Act 1967 which contained at paragraph 6(3) of Schedule 3 to the 1967 Act a provision broadly similar to paragraph 15 of Schedule 3 to the 1993 Act. The approach in the Speedwell Estates case was applied again by the Court of Appeal in Burman v Mount Cook Land Limited [2002] Ch 256 (relating to a notice under Chapter II of Part I of the 1993 Act).

Thus, in the absence of any provision in Chapter I of Part 1 of the 1993 Act which reverses this normal result, one would conclude that the notice dated 19^th December 2005, which purported to be a notice under Section 13 of the 1993 Act, but which has been held not to comply with the mandatory requirements of Section 13(3), was not a notice “under Section 13” nor a notice “in accordance with Section 13” nor a notice which “has effect” for the purposes of Section 13. In these circumstances, one needs to examine Chapter I of Part I of the 1993 Act to see if there is a statutory provision which reverses the normal effect of this defective notice.

The first point that strikes me is that there are particular provisions which have effect for Chapter I of Part I which give some statutory effect to what is otherwise an invalid notice but those special cases are of limited application and, in particular, are not material to anything which arises in the present dispute. I refer to the provisions contained in paragraph 10 of Schedule 3 and the supporting provision now contained in section 37A of the 1993 Act. The fact that those provisions have a defined limited effect strongly supports the conclusion that in other respects the normal result applies and the normal result is that a notice which does not comply with a mandatory statutory requirement as to its contents is an ineffective notice.

Mr Fancourt contends that there are provisions in Chapter I of Part I of the 1993 Act which mean that the notice dated 19^th December 2005 does have statutory consequences and despite the non-compliance with Section 13(3), the notice dated 19^th December 2005 is a notice “under Section 13” and a notice “in accordance with Section 13” and it is a notice which “continues in force” under Section 13. As was seen, Mr Fancourt builds his case on the terms of Section 21 of the 1993 Act, which refers to the participating tenants being entitled, or not entitled to exercise the right to collective enfranchisement and, further, the terms of Section 22 which again refer to the tenants being entitled, or not entitled, to exercise the right to collective enfranchisement.

In my judgment, Mr Fancourt’s explanation of the operation of the statutory provisions is incorrect. The 1993 Act in a number of places distinguishes between the entitlement to exercise the right to collective enfranchisement and the question whether a claim to exercise to that entitlement complies with mandatory statutory requirements. My understanding of the operation of the provisions in Chapter I of Part I of the 1993 Act is best illustrated by considering some examples.

Assume a notice which complies with Section 13(3) of the 1993 Act. Assume also that the landlord wishes to challenge the tenants’ entitlement to exercise the right to collective enfranchisement as claimed in the Section 13 notice. If the landlord does wish to challenge that entitlement, the landlord can give a counter-notice under Section 21 to that effect. The counter-notice will give the reasons for the challenge to the claimed entitlement. Those reasons will not say anything about whether the Section 13 notice complies with Section 13(3) because, on the assumed facts, the notice does comply. If an appropriate application is made to the County Court, the County Court will determine whether the tenants were, or were not, entitled to exercise the right to collective enfranchisement. If the court holds that the tenants were entitled to exercise the right to collective enfranchisement then, on the assumed facts, having served a notice complying with Section 13, the way is open for the tenants to proceed to acquire the freehold. If the court holds that the tenants were not entitled to exercise the right to collective enfranchisement (even though they have served a notice which complies with Section 13(3)) then the court will dismiss the application under Section 22 and the Section 13 notice which up to that point had effect as a claim will cease to have effect: see Section 22 (6).

Assume, next, a purported notice under Section 13 of the 1993 Act which does not comply with the mandatory requirements of Section 13(3). A landlord receiving such a notice is entitled to say that the notice is of no effect. The landlord does not need to serve a counter-notice under Section 21 to make that statement. Indeed, the statement that the notice is of no effect because it does not comply with Section 13(3) is not a statement either way as to whether the tenants are entitled to exercise the right to collective enfranchisement. If the purported Section 13 notice does not comply with Section 13(3), then one does not get to the question whether at the date of giving of the notice, the tenants were or were not so entitled. It may be that the landlord will not wish to rely only upon an argument that the purported Section 13 notice does not comply with Section 13(3) and is accordingly invalid and may wish in addition (without prejudice to that contention) to serve a counter-notice which either does or does not admit the entitlement to exercise the right to collective enfranchisement. There is nothing inconsistent in the landlord saying, first, that the purported Section 13 notice is ineffective because it does not comply with Section 13(3) but, secondly, if the Section 13 notice were held to be valid then the landlord admits the tenants’ entitlement to exercise the right to collective enfranchisement. If the landlord served a counter-notice in those circumstances then there would not be an issue under Section 22 as to whether the tenants were entitled to exercise the right to collective enfranchisement but there would be an issue as to whether the tenants, who are admitted to be so entitled, had effectively put the process in motion by serving a valid Section 13 notice. The County Court has jurisdiction to determine that issue: see Section 90(2).

Having explained my understanding of how the scheme of Chapter I of part I works, it is my conclusion that there is nothing in that scheme which requires one to hold, contrary to the normal position with non-compliant notices, that a purported notice under Section 13, which fails to be effective because it does not comply with Section 13(3), nonetheless has some statutory consequences such that it is to be treated as a notice “under Section 13” or a “notice in accordance with Section 13” or as a “notice which continues in force” until the tenants accept that the notice does not comply with Section 13 ( 3) and is ineffective.

Because the notice dated 19^th December 2005 did not (as the County Court Judge held) comply with Section 13(3) of the 1993 Act it was not a valid notice under Section 13. That matter having been drawn to the tenants’ attention by the landlord, there was no statutory prohibition on the tenants accepting that they had failed to serve a valid notice under Section 13. In those circumstances, the prohibition on a subsequent notice contained in Section 13 (8) did not apply because the notice dated 19^th December 2005 was not a notice under Section 13 and was not “in force”. Because the notice dated 19^th December 2005 was not effective and was not in force it did not have to be “withdrawn” under Section 28 of the 1993 Act. Further, the fact that the nominee purchaser did not apply to the court under Section 22 within two months of the purported counter-notice of 22^nd February 2006 did not result in a deemed withdrawal under Section 29(1). Accordingly, there was no scope in the present case for Section 13 (9) to preclude the tenants from serving what was otherwise a valid Section 13 notice on the 20^th April 2006.

It follows from the above that the Section 13 notice of 20^th April 2006 was a valid notice under Section 13.

There was no argument before me as to the effect of the purported counter-notice of 26^th June 2006. It will be remembered that that document challenged the validity of the Section 13 notice dated 20^th April 2006 by reliance on the suggested prohibition in Section 13 on serving that notice at that time. For the reasons I have given, those contentions put forward by the landlord were wrong. The purported counter-notice dated 26^th June 2006 did not deal with the question of underlying entitlement but dealt only with the validity of the notice dated 20^th April 2006 for the purpose of Section 13. As I say, no argument as to the validity of the counter-notice was addressed to me and the point does not appear to have been raised before the County Court Judge who ordered the landlord to give a further counter-notice to the nominee purchaser if so advised by 1^st March 2007. There has been no appeal against that part of the Judge’s order and, accordingly, I need reach no conclusion upon it.

I also note that my decision is in accordance with a comment in the standard text book on the subject, namely, Hague on Leasehold Enfranchisement 4^th Edition at para 25-18.

The result of the above is that, at least so far as the statutory provisions are concerned, the tenants were entitled to serve a valid Section 13 notice on the 20^th April 2006 and the notice which they served on that date was in all respects a valid notice.

The landlord rightly contends that the tenants would not have been entitled to serve a valid Section 13 notice on the 20^th April 2006 if they had already served a valid Section 13 notice on the 19^th December 2005. The landlord relies on Section 13(8) of the 1993 Act. The landlord contends that the tenants are estopped from denying that the notice dated 19^th December 2005 is a valid Section 13 notice and are, accordingly, estopped from putting forward the notice of 20^th April 2006 as a valid Section 13 notice.

The argument based on estoppel requires one to examine the following ingredients of an estoppel. Did the tenants make a relevant representation? Did the landlord rely on that representation? Was the landlord’s reliance sufficiently detrimental? In all the circumstances is it inequitable for the tenants to go back on any such representation? Are the tenants estopped from asserting the invalidity of the notice of 19^th December 2005 given that the landlord itself has asserted the invalidity of that notice for the purposes of Section 13?

Miss Wood argued that the notice dated 19^th December 2005 did not include any representation that it was a valid notice under section 13. In my judgment, there is something to be said for that argument and the answer is not clear cut. In view of the other points in relation to estoppel which, in my judgment, are very clear I will not discuss this point further. I will assume in the landlord’s favour that the alleged representation as to validity was made.

As to reliance, in my judgment, the landlord did not rely upon a representation, if made, that the notice of 19^th December 2005 was valid for the purposes of Section 13. The landlord may well have considered whether the notice of 19^th December 2005 was or was not valid but did not rely upon a representation, if made, by the tenants to the effect that the notice was valid. Having considered the matter, the landlord contended in its purported counter-notice that the notice of 19^th December 2005 was invalid. It is true that the landlord reacted to the notice but it did not rely upon it. It did the very opposite. In my judgment, the case for an estoppel founders on the absence of reliance.

There was no positive evidence as to the landlord having suffered any detriment as a result of the Section 13 notice. The landlord’s solicitor’s witness statement did not refer to that topic at all. It was submitted that the inference could be drawn that the landlord must have incurred a liability to pay a fee to the solicitors for considering the Section 13 notice. I am far from certain about that; it all depends on whether the solicitor’s arrangements with his client provided for a fee on a time basis for each item of work or whether there was a fixed fee for taking on items of work of a particular character whenever they arose. However, I will again assume in the landlord’s favour that the landlord would have become liable for a fee for the solicitor’s work in considering the notice dated 19^th December 2005. Assuming, contrary to my earlier conclusion, that this occurred in reliance on the notice dated 19^th December 2005, is that enough to found an estoppel?

In Banner Industrial & Commercial Properties Limited v Clark Paterson Limited [1990] 2 EGLR 139, it was said that trivial acts of reliance would not be sufficient to found an estoppel. The question of whether the suggested acts of reliance are sufficiently substantial has to be addressed as part of the broader question posed by Robert Walker LJ in Gillett v Holt [2001] Ch 210 at 232 E in these terms: “[w]hether the detriment is sufficiently substantial is to be tested by whether it would be unjust or inequitable to allow the assurance to be disregarded – that is, again, the essential test of unconscionability”. In my judgment, if, contrary to my findings, the landlord did rely upon a representation by the tenants, if made, as to the validity of the notice of 19^th December 2005, any element of detriment involved in that reliance is not sufficiently substantial to make it unjust or inequitable or unconscionable for the tenants to point out that the notice of 19^th December 2005 did not comply with Section 13(3) of the 1993 Act.

Mr Fancourt drew my attention to Bremer v Vanden [1978] 2 Lloyds Law Report 109 at 127 and to John Lyon School v Mayhew [1997] 1 EGLR 88 at 89M as illustrations of cases where legal costs incurred in reliance on a representation as to the validity of an earlier notice were held to produce the result that there was detrimental reliance on the representation. The first of these cases did not decide any question of principle: see at 116, col. 2. In the second of these cases the incurring of costs was not the only detriment. In my judgment, there is nothing in those cases which affects the statement of principle in Gillett v Holt nor my application of that principle to the facts of this case.

Quite apart from the above matters, I have great difficulty in understanding how the landlord can contend that the tenants were still estopped on 20^th April 2006 (when they made their second attempt to give a Section 13 notice) from challenging the validity of the notice of 19^th December 2005, when the landlord had already contended by its counter-notice of 22^nd February 2006 that the notice of 19^th December 2005 was of no effect. It would be a very strange result if one held that the landlord was free to contend that the notice of 19^th December 2005 was ineffective under Section 13 whereas the tenants were estopped from agreeing with the landlord in that respect.

The result is that the appeal is dismissed.