Green v Westleigh Properties Limits

There are before the Court two matters. Firstly, there is an appeal from the decision of HHJ Newton dated 30 November 2005 sitting at the Chelmsford County Court. Secondly, there is a renewed application for permission to appeal from the decision of HHJ Newton sitting at the County Court at Southend on 11 May 2005.

In July 1990 Robert Green, the appellant (and the defendant below) purchased a 199 year lease of Flat 8, Lifstan Way, Southend on Sea. The flat is, I understand, one of two flats in a building, the other flat being no.8A. The owner of the freehold of the building was Broadway (Essex) Limited. In January 1992 Broadway transferred the freehold interest in the building to Marcus and Baum Limited for the sum of £500. In October 1992 Marcus and Baum Limited changed its name to Westleigh Properties Limited (“Westleigh”), the respondent (and the defendant below). Despite that change of name the title is still recorded at the Land Registry as being in the name of Marcus and Baum Limited.

It is to be noted that there is also a firm of solicitors known as Marcus Baum. That firm is of course a separate legal entity from Marcus and Baum Limited, now known as Westleigh. I am told that the directors of the latter are the wives of the two partners in Marcus and Baum. In July 2003 Marcus Baum described Westleigh as its client.

Pursuant to the Landlord and Tenant Act 1987 (the “LTA 1987”) Mr. Green, in association with the leaseholders of Flat 8A, had certain “rights with respects to the acquisition by them of their landlord’s reversion” (see the title to the Act). In particular sections 11 and 12 of the LTA 1987 conferred upon the tenants a right to compel the sale to them of the landlord’s reversion after the original landlord had disposed of the reversion to a new landlord. That right was therefore exercisable against the new landlord, in this case Westleigh. It appears from the judgment of HHJ Newton dated 11 May 2005 at paragraph 24 that Mr. Green became aware in 2002 that the freehold interest had been transferred to Westleigh. By his order dated 11 May 2005 HHJ Newton declared that a letter dated 9 June 2003 from Messrs. Rudd on behalf of Mr. Green was deemed to be a notice by Mr. Green under section 11 of the LTA 1987 requiring Westleigh to furnish him with particulars of the terms on which the disposal of the freehold interest was made. There is no appeal against either the finding or the declaration.

In March 2004 Westleigh commenced proceedings against Mr.Green for the payment of certain sums allegedly due under the lease. The sum claimed was £1,234.70, as stated on the face of the Claim Form (though the particulars of claim on the second page of the Claim Form appear to claim a slightly lesser sum). Mr. Green denied liability and counterclaimed for “specific performance”, which I understand to be a demand that the landlord’s reversion be transferred to the tenants, repayment of a sum of £650, said to be ground rent which would not have been paid over a period 13 years had the freehold been transferred, and a sum equal to the difference between the sum paid in respect of insurance to the landlord over 13 years and what Mr. Green would have paid for insurance himself, estimated at £1,000.

The solicitors acting for Westleigh in the proceedings were Osmond Gaunt Rose.

On 11 May 2005 HHJ Newton gave judgment in favour of Westleigh for the sum of £1,346.24 inclusive of interest and on the counterclaim made the following orders:

“2.

It is declared that the letter dated 9 June 2003 from Messrs. Rudds Solicitors be deemed to be the tenant’s notice pursuant to Section 11(1) Landlord & Tenant Act 1987.

3.

The Claimant do within 1 month of today provide details of the date and purchase price of the transfer effected in 1992.

4.

It is declared that no purchase notice has yet been served pursuant to the Act.

5.

It is declared that any purchase notice under Section 12 of the Landlord & Tenant Act be served within 3 months of today.”

The reasons for the judgment on the counterclaim were set out in a careful and considered judgment delivered on 11 May 2005. It appears that the reasons for his judgment on the claim were set out in a short judgment given on 8 August 2005.

On 23 May 2005 Mr. Green filed an Appellant’s Notice seeking permission to appeal from the judgment on the claim and from the order of HHJ Newton that Mr. Green pay £3,500 towards the claimant’s costs.

On 26 May 2005 Westleigh, in order to comply with paragraph 3 of the order dated 11 May 2005, forwarded to Mr. Green a copy of the 1992 transfer of the freehold interest showing that the consideration had been the sum of £500.

Although HHJ Newton had hoped, with justification, that his judgment had resolved the dispute between the parties, the matter came back to him on 30 November 2005. There was a dispute between the parties as to whether Mr. Green had served a purchase notice pursuant to section 12 of the LTA 1987 within the time limited by the order of 11 May 2005. Mr. Green said he had done so either by a letter dated 10 June 2005 or by a letter dated 8 August 2005 but also sought an extension of time for doing so until 11 October 2005. That application was heard on 30 November 2005. HHJ Newton held that Mr. Green had not served a purchase notice and that the court had no power to extend the time for doing so. The effect of this decision was that the efforts by Mr. Green (and those of the leasehold owners of no.8A, Mr. and Mrs. Lovett) to have the freehold interest in the building transferred to them had come to an end. HHJ Newton refused permission to appeal.

On 6 February 2006 Mr. Green filed an Appellant’s Notice seeking permission to appeal from the decision of HHJ Newton on 30 November 2005 holding that a purchase notice had not been served by Mr. Green.

On 4 October 2006 permission to appeal was granted by the High Court in respect of HHJ Newton’s decision on 30 November 2005 but permission to appeal was refused in respect of the decision as to the claim and costs on 11 May 2005.

On 24 January 2007 the appeal and the renewed application for permission to appeal were listed for hearing. However, the hearing was adjourned in order that a date with a longer time estimate might be fixed and for Mr. Green to obtain a transcript of the judges’ reasons for awarding costs to Westleigh.

Between 1 February 2007 and 30 October 2007 Legal-Action, the solicitors acting for Mr. Green, sought from the Southend County Court “a copy of the transcript of the discussion after the judgment of 11 May 2005”. Those requests do not appear to have been successful. However, around the end of March 2008 the solicitors for Westleigh made available to Legal-Action Counsel’s note of the judge’s decision on costs. Legal-Action stated, on 19 June 2008, that “we are content for the time being to accept [it] as being an accurate as possible reflection of what was stated by HHJ Newton on 11 May 2005”.

In June 2008 Westleigh requested that the appeal be heard in order to bring this long delayed matter to an end. The appeal and the renewed application for permission were heard on 20 June 2008. The court received considerable assistance from counsel for both Mr. Green and Westleigh.

The appeal raises what might be thought to be a simple issue, namely, did Mr. Green serve on Westleigh a purchase notice pursuant to section 12 of the LTA 1987. A subsidiary but related issue is also raised, namely, did HHJ Newton have power to extend the time for service of such notice.

On 10 June 2005 Legal Action sent a notice in an envelope addressed to Westleigh at its registered office, 33 Clarence Street, Southend-on-Sea, Essex SS1 1BH. The notice within the envelope was dated 10 June 2004 and was addressed to Marcus Baum, Solicitors, at the same address. The notice provided as follows:

“Re: NOTICE UNDER SECTION 12A OF THE HOUSING ACT 1987

8/8a LIFSTAN WAY SOUTHEND ON SEA SS1 2YA

Further to the Order of His Honour Judge Newton on 11 May 2005, the letter from Osmond Gaunt & Rose dated 12 May 2005 and 26 May 2005, we do hereby give notice to you as Landlords of the above property that we act for Mr. Green and Mrs. and Mrs. Lovett whom we attach a copy of their authority dated 14 May 2005 and duly evoke their rights under:

S.12A- Right of qualifying tenants to take benefit of contract.

(1)

Where the original disposal consisted of entering into a contract, the requisite majority of qualifying tenants of the constituent flats may by notice to the landlord elect that the contract shall have effect as if entered into not with the purchaser but with a person or persons nominated for the purposes of this section by the requisite majority of qualifying tenants of the constituent flats.

We enclose a cheque for £500 on behalf both our clients and trust that we will here [sic] from you directly once the transfer of the Lifstan Way property freehold to our clients has been effected.”

Upon the assumption that the notice was intended to be a notice pursuant to section 12 of the LTA 1987 it contained a number of errors.

Counsel for Westleigh submitted there were three further errors.

It appears that on 5 August 2005 a letter was faxed to Osmond Gaunt & Rose. There were three pages to the fax. It is to be inferred that the second and third pages were the June 10 notice and the authority of Mr. and Mrs. Lovett. There was no evidence to the contrary. The letter noted that a reply had not been received and that the cheque had not been cashed.

On 8 August 2005 a letter was sent to Marcus Baum at 33 Clarence Street, Southend-on-Sea. It was modelled on the notice dated June 10 but was not identical. It noted that the notice sent on 10 June 2005 had been incorrectly dated 10 June 2004 and it referred to the fact no reply had been received from Osmond Gaunt & Rose to the letter of 5 August 2005. A further cheque for £500 was enclosed made out to Marcus Baum.

Counsel for Westleigh informed the Court that the letter of August 8 was received on August 12 by Marcus Baum who forwarded a copy to Osmond Gaunt Rose on 14 August. They received it on August 17.

The judge decided that no valid notice had been served within time and that he had no jurisdiction to extend the time for serving a valid notice. His reasons were as follows:

“In terms, I simply say that it was to the wrong date, the wrong person, it was under the wrong Act, under the wrong section, it did not nominate the people involved, the address, all of which I am told would have been obvious, as it were, because here was somebody doing their level best to assist Mr. Green. I have no doubt about that, but it does seem to me that the notice having, if I may say so, stretched a point earlier, had to be in the proper form because it is a binding contract, or preparatory to a binding contract. It is certainly an offer to enter into a contract. Therefore the terms had to be set out clearly, and it has been submitted to me, and I agree that the “notice” which I have seen could not possibly be an offer to enter into the contract, although the force of it is clear.

In any event, it seems to me that I do not think that it constitutes a proper notice in any shape or form. I am sad to say that that is the case because I had endeavoured to put an end to the endless litigation between Mr. Green and the claimants. I do not have the power, even if I wanted to do it, and might have endeavoured to help to waive those defects, or, alternatively to extend the period. I simply do not have the power.”

Counsel on behalf of Mr. Green submitted that the notice sent on 10 June 2005 was served on Westleigh by 13 June 2005 or 5 August 2005. He further submitted that the statutory time limit for the service of a section 12 notice was 26 August 2005, that is three months after service of Westleigh’s response to the section 11 notice, which had been on 26 May 2005. Since Westleigh’s solicitors had received the notice on 17 August 2005, Westleigh had received the notice within the statutory time limit and the Court ought to have extended the time specified by the order of 11 May 2005 until 17 August pursuant to its usual case management powers (presumably a reference to CPR Part 3). Counsel further submitted that the notice was valid when construed in a purposive manner and through the eyes of a reasonable recipient, taking into account the relevant contextual scene. Reliance was placed on Ravenseft Properties Ltd. v Hall [2001] EWCA Civ 2034, Kay Green v Twinsectra [1996] 1 WLR 1587 and Tudor v M25 Group [2004] 1 WLR 2319. When so construed its essential purpose was clear, that is, it was intended to be a purchase notice pursuant to section 12 of the LTA 1987.

Counsel on behalf of Westleigh submitted that a notice under section 12 of the LTA 1987 had to be served on the landlord at the address given under section 48(1) of the LTA 1987 which was the address of its managing agents at Hyde House, The Hyde, London. For this purpose reliance was placed on CPR Part 56 PD 10.1. No such notice was so served. Service on Marcus and Baum could not be service on Westleigh. It was further said that the notices relied upon did not satisfy the imperative requirement of a notice under section 12 of the LTA 1987, namely, that it must give adequate notice of the requirement of the qualifying tenants to have the estate or interests in the premises transferred to a nominated person; see Kay Green v Twinsectra at p.1601 E per Aldous LJ. It gave notice of a different requirement, namely, that under section 12A of the Act as amended, which did not apply.

In considering the rival submissions as to the validity of the notice it is necessary to have regard to two lines of authority on which reliance was placed. The first is that exemplified by Kay Green v Twinsectra [1996] 1 WLR 1587, a decision of the Court of Appeal concerning the validity of notices served under section 12 of the LTA 1987. One of the issues in that case was whether a notice served under section 12 was invalid (i) because it failed to include one of the flats, (ii) because, in circumstances where the original disposal contained property in addition to that to which the LTA 1987 applied, the notice failed to require the new landlord to dispose of the estate or interest “only” so far as relating to the property in the original disposal as required by section 12(3)(a)(i) of the LTA 1987 and (iii) the notice failed to require that the terms of the original disposal should be modified as necessary or expedient in the circumstances as required by section 12(3)(a)(ii) of the LTA 1987. The Court of Appeal held that the notice was valid.

In reaching his decision Aldous LJ stated that the purpose of a purchase notice pursuant to section 12

“is to give the new landlord adequate notice that the qualifying tenants of the building wish to acquire the freehold upon the terms of the original disposal or upon terms to be decided by the leasehold valuation tribunal.” (at p.1599 H)

He drew a distinction between imperative and directory provisions of section 12.

“A purchase notice must give adequate notice to the new landlord of the qualifying tenants desire to purchase the estate or interest that they should have been offered by the original landlord. That is imperative, in the sense that it must be followed to the letter, but some of the other requirements of section 12 are only directory.” (at p.1600 B)

He summarised the imperative provisions as follows:

“A section 12 notice must be in writing and served upon the new landlord in time. Further it must give adequate notice of the requirement of the qualifying tenants to have the estate or interest in the premises, as defined in section 1, to be transferred to a nominated person. Those requirements are in my view imperative.” (p.1601 E).

As to the first alleged defect Aldous LJ held that, although one flat was not included in the notice, so to read the notice would not give full effect to the notice as given and that it would be absurd to understand the notice as requiring part only of the freehold interest to be transferred. Further, a letter sent with the notice made it clear that what was being referred to was the whole of the freehold interest (see p.1601 F-G).

As the second alleged defect based upon section 12(3)(a)(i) Aldous LJ held that the requirement in that section was only directory so that although the notice required transfer of property not included in the original transfer that did not invalidate the notice as a whole (see p.1602 B-c).

As to the third alleged defect based upon section 12(3)(a)(ii) Aldous LJ held that the requirement in that section were also directory so that whilst the notice could have been worded so as to refer to the wording of that section there was no need for it to do so, so long as the notice made it clear that the qualifying tenants wished to have the estate conveyed to them upon the same terms with such appropriate modifications as would be agreed or settled by a leasehold valuation tribunal (see p.1602 E-G).

The second line of authority upon which reliance was placed commenced with Mannai Investment v Eagle Star Life Assurance [1997] AC 749 and was applied in Ravenseft Properties v Hall [2001] EWCA Civ 2034. In Mannai the House of Lords considered the proper approach to be applied when considering the validity of a notice served by a tenant to break the term of a lease. Lord Steyn said:

“The construction of the notices must be approached objectively. The issue is how a reasonable recipient would have understood the notices. And in considering this question the notices must be construed taking into account the relevant objective contextual scene.”(at p.767 G)”

“Even if such notices under contractual rights reserved contain errors they may be valid if they are “sufficiently clear and unambiguous to leave a reasonable recipient in no reasonable doubt as to how and when they are intended to operate:” the Delta case [ [1990] 1 WLR 445] at p.454 E_G, per Slade LJ and adopted by Stocker and Bingham L.JJ.; see also Carradine Properties Ltd. Aslam [1976] 1 WLR 442,444. That test postulates that the reasonable recipient is left in no doubt that the right reserved is being exercised. It acknowledges the importance of such notices. The application of that test is principled and cannot cause injustice to a recipient of the notice. I would gratefully adopt it.” (at p.768 G-H).

Lord Hoffman also concluded that the test stated by Goulding J. in Carradine was right (see p.780 G). Goulding J. had applied the following test:

“Is the notice quite clear to a reasonable tenant reading it ? Is it plain that he cannot be misled by it ?”

Lord Clyde also approved the tests stated in Carradine and Delta. He said:

“The standard of reference is that of the reasonable man exercising his common sense in the context and in the circumstances of the particular case.” (p.782 C)

The test in Mannai has been applied to statutory notices; see York c Casey [1998] 2 EGLR 25. In Ravenseft Properties Ltd. V Brigid Agatha Hall [2001] EWCA Civ 2034 (a case involving a notice under section 20 of the Housing Act 1988 to create an assured shorthold tenancy) Mummery LJ said at paragraph 13:

“In applying the Mannai approach, it is therefore important to have well in mind the context of the evident purpose of the requirement of a notice in the prescribed form. If, notwithstanding errors or omissions, the substance of the notice is sufficiently clear to the reasonable person reading it, the notice is likely to serve the purpose [of a notice under section 20 of the Housing Act].

In considering whether the notice served in this case is valid it is therefore necessary to consider whether it complies with the imperative requirements identified by Aldous LJ in Kay Green. Thus, was it in writing and served upon the new landlord in time and did it give adequate notice of the requirement of the qualifying tenants to have the estate or interest in the building known as No’s 8 and 8A, Lifstan Way transferred to a nominated person ? In considering whether it gave adequate notice of that requirement it is necessary to consider whether it was sufficiently clear and unambiguous to leave a reasonable recipient in no reasonable doubt that the tenants were giving such notice.

It can be seen from the short judgment of HHJ Newton on 30 November 2005 that he did not have regard to the principles to which in my judgment it is necessary to have regard. That was no doubt because, apart from a brief reference to Mannai in the course of argument, he was not referred to the law in the detail that I have been. Nor does he appear to have had specific regard to the address on the envelope which contained the notice sent on 10 June 2005, although the point was mentioned in argument. It is therefore necessary for this court to consider afresh the question whether a valid notice was served pursuant to section 12 of the LTA 1987.

There is no doubt that the notice alleged to have been sent on 10 June 2005 (though dated 10 June 2004) was given was in writing. The dispute is whether the notice was served on Westleigh in time.

There was evidence before the Judge from Katherine Gibson of Legal Action, the solicitors acting for Mr. Green, that the envelope containing the notice was addressed to “Westleigh Properties Ltd., 33 Clarence Street, Southend-on-Sea, Essex SS1 1BH.”

I shall first deal with the submission that the notice was required by CPR 56 PD 10 to be served on Westleigh’s managing agents at Hyde House, The Hyde, London. Paragraph 10 of the Practice Direction provided as follows:

“10.1

All documents must be served by the parties.

10.2

If a notice is to be served in or before a claim under the 1987 Act, it must be served-

(1)

in accordance with section 54, and

(2)

in the case of service on a landlord, at the address given under section 48(1).”

I reject that submission. I accept the submission made on behalf of Mr. Green that CPR 56 PD 10 applies only to claims under the LTA 1987 made before the court and commenced by a claim form. An example of such a claim would be a claim pursuant to section 19 of the LTA 1987. PD 10 does not apply to notices required to be served by the tenants on the landlord by the provisions of the Act otherwise than pursuant to a claim before the court. Although there had been proceedings before HHJ Newton regarding the LTA 1987, namely, Mr. Green’s counterclaim, as a result of which HHJ Newton had ordered that notice under section 12 be given within 3 months of 11 May 2005, such notice under section 12 is not fairly to be regarded as required to advance a claim before the court but as required in order that the tenants might exercise their rights under the Act with respect to the acquisition of the landlord’s reversion. The exercise of such right by the serving of a notice under section 12 might in due course require an application before the court pursuant to section 19 but such an application was not inevitable when the notice was sent.

Section 54 of the LTA 1987 provides as follows:

“(1)

Any notice required or authorised to be served under this Act (a) shall be in writing; and (b) may be sent by post.

(2)

Any notice purporting to be a notice served under any provision of Part I or III by the requisite majority of any qualifying tenants (as defined for the purposes of that provision) shall specify the names of all of the persons by whom it is served and the addresses of the flats of which they are qualifying tenants.”

The first question is whether the notice contained within the envelope addressed to Westleigh on 10 June 2005 was “sent by post” to Westleigh. Counsel for Mr. Green submits that it was because the envelope was addressed to Westleigh at its registered office. Westleigh was the person to whom the notice was sent by post. However, the notice within the envelope was addressed to Marcus Baum, Solicitors, at 33 Clarence Street. The text of the notice refers to notice being given to “you as Landlords of the above property”.

Marcus Baum, the firm of solicitors, was not the landlord of No’s 8 and 8A, Lifstan Way. The notice ought to have been addressed to Westleigh who were the landlords of No’s 8 and 8A Lifstan Way.

It seems to me that in deciding to whom the notice was sent by post, in circumstances where the addressee on the envelope is different from the addressee on the notice, it is necessary to have regard not only to the address on the envelope and the address on the notice but also to the terms of the notice. Where there is an apparent difference between the addressee on the envelope and the addressee on the notice the terms of the notice may resolve that conflict.

The terms of the notice make express reference to the order of HHJ Newton on 11 May 2005 and to the letter from Osmond Gaunt and Rose dated 12 May 2005. The order was made in an action commenced by Westleigh as landlord against Mr. Green as tenant and was premised on Westleigh being the landlord. The letter from Osmond Gaunt and Rose enclosed a copy of the transfer of No’s 8 and 8A Lifstan Way by Broadways (Essex) Limited in favour of “our client”. The transferee was named as Marcus and Baum Limited. It will be recalled that Marcus Baum Limited changed its name to Westleigh.

These references suggest that the intention of Legal Action, assessed objectively, was to address the notice to Westleigh, notwithstanding that the addressee was stated in the notice to be Marcus Baum, Solicitors. It would not make sense to address the notice to Marcus Baum, solicitors. The cheque for £500 which was enclosed was, according to Katherine Gibson, made out to “Westleigh Properties Limited”. This is supported by the copy of the cheque stub dated 10 June 2005 which refers to “Westleigh Properties Limited”. It appears that the naming of Marcus Baum as the addressee of the notice was a mistake, possibly induced by Marcus and Baum Limited being the original name of the new landlord but exacerbated by some very sloppy thinking on behalf of the draftsman of the letter who confused Marcus Baum Limited with Marcus Baum solicitors. But looking at the notice in full, and the cheque which was sent with it, it was “sent to” Westleigh.

I have therefore concluded, having regard to the addressee on the envelope, the addressee on the notice and the contents of the notice, that the notice was sent to Westleigh.

Counsel for Westleigh informed me that the notice sent on 10 June 2005 was never received. However, section 7 of the Interpretation Act 1978 provides:

“Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the documents and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

Katherine Gibson gave evidence that the envelope addressed to Westleigh’s registered address was stamped with a first class stamp and posted at the Romford Sorting Office. She expected that it would be have been delivered by 13 June 2005. She stated that it had not been returned as undelivered. I have not been referred to any evidence from the person at 33 Clarence Street who opens the post that the letter posted to Westleigh was not delivered. In those circumstances I must conclude that the service of the notice is deemed to have been effected on Westleigh by 13 June 2005. This was well within the time limit set by HHJ Newton on 11 May 2005.

In case I am wrong I should also mention the fax sent by Legal Action on 5 August 2005. This was addressed to Osmond Gaunt and Rose. It notes that Legal Action had not received a reply to its letter dated 10 June and attaches a copy of that letter. The fax states that 3 pages were sent to the fax number of Osmond Gaunt and Rose. I assume that what was sent was the fax dated 5 August 2005 and the latter dated 10 June 2005. It is not clear what the third page was; possibly it was the manuscript letter from Mr. and Mrs. Lovett. Thus, if, contrary to my finding, the notice sent on 10 June 2005 did not reach Westleigh by 13 June 2005, a copy of that notice appears to have been sent to Westleigh’s solicitors on 5 August 2005. That was also within the time limit set by the order dated 11 May 2005.

For completeness I should mention the letter dated 8 August 2005 sent by Legal Action to Marcus Baum. This refers to the letter sent on 5 August 2005 and is in very similar terms to the letter sent on 10 June 2005 but is not identical. Bizarrely, the cheque which was enclosed was made out to Marcus Baum. Although it is accepted that this letter reached Osmond Gaunt and Rose by 17 August 2005, that was six days later than the time limited by the order of 11 May for service of the notice under section 12 of the LTA 1987. In view of my findings with regard to the letter dated 10 June and the letter dated 5 August 2005 it is unnecessary to consider whether this letter was sent to Westleigh and if so whether it may be deemed to have been served on Westleigh by 11 August 2005 (when the three months limited by the order of 11 May expired) or whether, if it is deemed to have been served on Westleigh at a slightly date, the court below had power to extend the time for service of such notice until such date or until 17 August 2005 when Westleigh’s solicitors received it.

It is now necessary to consider whether the notice sent on 10 June 2005 was a valid notice for the purposes of section 12 of the LTA 1987. The purpose of such a notice is to give adequate notice to Westleigh of the requirement of the qualifying tenants, Mr. Green and Mrs. and Mrs. Lovett, to have Westleigh’s freehold interest in the premises known as No’s 8 and 8A Lifstan Way transferred to a nominated person. In considering whether the notice fulfils that purpose I must have regard to whether it is sufficiently clear and unambiguous to leave a reasonable recipient in no reasonable doubt that the tenants were giving such notice.

There can be no doubt that the notice was very sloppily drafted. Whilst the letter is dated a year early (perhaps an easy mistake to make) it not only misdescribed the relevant Act, calling it the Housing Act 1987 instead of the Landlord and Tenant Act 1987, but said that the tenants were seeking to exercise their rights to take the benefit of a contract rather than seeking to exercise their rights to have the new landlord dispose of his interest in the property to the tenants. Reference was expressly made to section 12A which is to be found in the amended version of the LTA 1987 and which, it is common ground, has no application to this case.

However, in construing the notice it is necessary to have in mind “the relevant objective contextual scene” (per Lord Steyn in Mannai). It is plain from the terms of the notice that the context must include the proceedings before HHJ Newton which had, as at 10 June 2005, concluded with his judgment and order of 11 May 2005. It was apparent from that order that HHJ Newton intended that the tenants should have the opportunity to serve a section 12 notice of their intention to acquire the interest of Westleigh in the premises known as 8 and 8A Lifstan Way. The notice sent on 10 June was sent as a result of that judgment and order. The context would therefore suggest that the intention of the tenants (assessed objectively) was to serve a notice requiring Westleigh’s interest in the premises to be transferred to them.

Further, the final sentence of the notice refers to an enclosed cheque for £500. That was the consideration for the original transfer to Westleigh and therefore contemplates that the same sum will be paid by the tenants to Westleigh in exchange for its interest. The final sentence also envisages a further communication from the recipient of the notice once the “transfer of the Lifstan Way property freehold to our clients has been effected”. Thus, whilst the body of the notice refers to a right to take the benefit of a contract, the final sentence expressly contemplates a transfer of the freehold interest in the property from Westleigh to the tenants, as had been contemplated in the judgment and order of HHJ Newton dated 11 May 2005.

In reaching my conclusion I have had in mind the observation by Neuberger J. (as he then was) in Proctor & Gamble Technical Centres Limited v Brixton PLC [2002] EWHC 2835 (Ch) at paragraph 35 that:

“…….like Lord Hoffman, Lord Steyn [in Mannai] did not give a green light to inaccurate and sloppily drafted notices. The test, even in relation to the construction of notices is relatively strict.”

What Neuberger J. had in mind in that passage was that the question in every case is whether on a fair construction of a notice it is quite plain that the reasonable recipient could not be misled by it; see paragraph 36.

I have concluded, having considered the whole of the notice in its context, that the reasonable recipient of the notice can have been left in no doubt that although the notice was extremely badly and incorrectly drafted the tenants were giving notice to Westleigh of their requirement to have Westleigh’s freehold interest in the premises known as Nos. 8 and 8A Lifstan Way transferred to them.

Although the test is objective and not subjective it is of interest to note that when Osmond Gaunt & Rose wrote to Legal Action on 22 August 2005 giving reasons why, in their opinion, no purchase notice had been served, they did not suggest that they were in doubt as to whether the tenants required to have Westleigh’s freehold interest in the premises known as Nos. 8 and 8A Lifstan Way transferred to them. Thus there is nothing in Osmond Gaunt & Rose’s letter which suggests that I have mistakenly construed the notice sent on 10 June 2005.

It seems likely that HHJ Newton would have agreed with the conclusion I have reached for he said that the “force of [the notice] is clear.” However, he considered that the notice had to be “in the proper form” because “it is a binding contract, or preparatory to a binding contract”. There was, however, no prescribed form. What was necessary was that the notice informed Westleigh of the requirement of the qualifying tenants, Mr. Green and Mrs. and Mrs. Lovett, to have Westleigh’s freehold interest in the premises known as No’s 8 and 8A Lifstan Way transferred to them. I consider that it did so inform Westleigh for the reasons I have endeavoured to explain. It is true that section 12 assumes that the purchase notice operates so as to require disposal and provides a duty on the landlord to give effect to the purchase notice; see Kay Green v Twinsectra supra at p.1597 B-H. However, the terms of the disposal may have to be modified pursuant to section 12(6) of the LTA 1987. I am told that this will be so in this case. So there is an opportunity for further consideration of the terms between the giving of a notice under section 12 and the disposal of the landlord’s freehold interest.

I shall deal shortly with the other suggested defects in the notice. Neither the incorrect date nor the naming of an incorrect Act can have caused the reasonable recipient to have been in any doubt as to what the tenants required. The notice did not expressly identify the person nominated by the tenants as the person to whom the landlord would dispose of his interest. However, the reasonable recipient can have been in no doubt that the tenants required it to be disposed of to themselves. The final sentence of the notice refers to the transfer of the Lifstan Way property freehold “to our clients”. Lastly, complaint was made that, contrary to section 54 of the LTA 1987, the notice did not specify the addresses of the flats of which the tenants were the qualifying tenants. The notice was headed 8/8A Lifstan Way, Southend-on-Sea which is probably sufficient to specify the addresses of the tenants. But even if it is not the addresses were, as in Tudor v M25 Group supra, readily and indisputably ascertainable and the failure to specify them does not render the notice invalid. The requirement for the addresses to be specified was not a mandatory but only a directory requirement.

For these reasons I have decided to allow the appeal from the decision of HHJ Newton on 30 November 2005.

Counsel on behalf of Mr. Green requested that the renewed application be adjourned pending the completion of a police inquiry into whether Georgina Baum signed the statement of truth attached to the Claim Form. The apparent discrepancy between the signature on the Claim Form and the signature of Mrs. Baum on other documents was, I am told, “only noticed last year by accident.” Whilst there was evidence that the inquiry was underway there was no evidence as to when it might be concluded. This is an application for permission to appeal from a judgment given on 11 May 2005, over three years ago. There would have to be a very compelling reason to adjourn this application having regard to the age of the application. Whilst the statement of truth is an important matter no particular reason was advanced for concluding that the decision on the claim would have been different had Georgina Baum not signed the statement of truth. In those circumstances there is no good reason for adjourning this application for permission to appeal and I refuse to do so.

So far as the judgment on the claim is concerned HHJ Newton summarised his reasons for awarding the sum of £1,346.24 inclusive on interest on 8 August 2005. Whilst neither this summary nor the judgment given on 11 May 2005 make clear how the judge arrived at this figure his decision is in essence a finding of fact having considered the evidence. Permission to appeal is sought on the grounds that the reasons are insufficient. However, in order to obtain permission to appeal it must be shown that the appeal has a real prospect of success or that there is some other compelling reason to grant permission to appeal. Counsel was not able to show a real prospect of success. As to some other compelling reason there is none. I do not regard the absence of reasons explaining in detail how the judge arrived at the modest figure ordered inclusive of interest as a compelling reason to grant permission to appeal, especially where the application for permission is as old as this one is.

So far as the award of costs on 11 May is concerned the reasons of the judge for making his award are recorded in Counsel’s note. It appears that he had regard to the circumstance that the majority of the counterclaim had “fallen by the wayside” and that the court “had not transferred the freehold to him as he has requested but allowed him to have a second bite at the cherry”. On this application for permission to appeal Counsel for Mr. Green submitted that Mr. Green had won on his counterclaim and therefore should not have been ordered to pay costs to the claimant. But the claimant had won on his claim and the judge had in mind that Mr. Green had not won the whole of his counterclaim. In those circumstances and having regard to the fact that the sum awarded in costs was less than that claimed it is impossible to say that an appeal against the exercise of the court’s discretion on costs has a real prospect of success or that there is some other compelling reason for granting permission to appeal.

Permission to appeal is refused.

I shall ask counsel to agree an order giving effect to this judgment.