M25 Group Ltd. v Tudor & Ors [2003] EWCA Civ 1760

Case No B2/2003/0790

[2003] EWCA Civ 1760

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT

(HH JUDGE COOKE)

Venue Royal Courts of Justice

Date Thursday 4 th December 2003

Strand,

London, WC2A 2LL

Before

LORD JUSTICE POTTER

LORD JUSTICE CARNWATH

Between

M25 GROUP LIMITEDAppellant

JOHN JAMES TUDOR AND OTHERSRespondent

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

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Mr Anthony Radevsky (instructed by Messrs. Wallace and Partners) for Appellant

Mr Jonathan Gaunt QC (instructed by Rochman Landau) for Respondent

Judgment

Lord Justice Carnwath :

Introduction

[1]Part I of the Landlord and Tenant Act 1987 conferred upon “qualifying tenants” of flats rights of first refusal, enabling them to purchase the interest of their landlord if and when he proposes to dispose of it. It followed recommendations of a committee chaired by Edward Nugee QC on the Management of Privately Owned Blocks of Flats (1985): see extracts cited in Belvedere Court Management Ltd v Frogmore Developments Ltd

[1997] QB 858

, 874-5. The committee was concerned by evidence of cases in which ownership of the freehold passed through several hands in quick succession, leaving tenants uncertain who their landlord was. It was not at that stage thought right to give tenants a right to buy the interest of a landlord who wished to continue to own the property. However, where the landlord wished to dispose of his interest, the “presumption against exproprietory legislation” was thought to apply with less force; it was recommended that in that event tenants should have an opportunity to purchase the reversion themselves (Report para 6.18).

[2]Since that time there have been a number of legislative interventions in this field, designed to give leaseholders greater rights to secure ownership, or to manage their buildings, the most recent being the Commonhold and Leasehold Reform Act 2002.

[3]In the meantime the right of pre-emption under the 1987 Act has remained, but in a much modified and expanded form. Experience revealed serious problems with the drafting of Part I, as well as a lack of any effective means of enforcement. Extensive amendments and substitutions were made by the Housing Act 1996. It is in that amended form that it falls to be considered in this case. In looking at the authorities, it is necessary to bear in mind that most of them pre-date the amendments.

The Scheme

[4]Part I applies to a building which contains two or more flats held by “qualifying tenants”, if the number of flats held by qualifying tenants exceeds 50% of the total number of flats in the building (s1(2)). A “flat” for these purposes is a “separate set of premises” adapted for use as a dwelling and divided horizontally from some other part of the building (s60(1)). A “qualifying tenant” is any tenant, other than one under a protected shorthold tenancy, a business tenancy, an assured tenancy, or one linked to employment (s3(1)). Other exclusions from the definition of qualifying tenant are any tenant of at least three flats in the same premises (s3(2)), and any tenant whose landlord is a qualifying tenant of the same flat (s3(4)).

[5]The principal substantive rule is found in section 1: a landlord must not dispose of the premises to which Part I applies, unless he has first served a notice on the qualifying tenants under section 5 of the Act. The notice must comply with requirements set out in four sections 5A to 5D, depending on the proposed form of sale. In the typical case of a contract to be completed by conveyance, the notice must contain particulars of the principal terms of the disposal, and state that it constitutes an offer by the landlord to enter into a contract on those terms which may be accepted by the requisite majority of qualifying tenants of the constituent flats, within a specified period (s5A(3)). The “requisite majority” for the purposes of a notice under section 5 means qualifying tenants of more than 50% of the flats let to qualifying tenants at the time when the offer expires (s18A(1),(2)(a)). Sections 6 to 10 provide the machinery for acceptance of the landlord’s offer, beginning with an “acceptance notice” served by the qualifying tenants (s6(2),(3)).

[6]If the original landlord disposes of the premises without serving the required notice, then a new set of rights comes into play against the purchaser (ss11 - 12C). The first, which is in issue in this case, is the right of qualifying tenants to obtain information as to the terms of disposal (s11A). The others are designed to give them the right to ensure that the landlord, or the purchaser (if the sale has been completed), sells the property to them on the original terms (ss12A-12D). The time limit for serving a notice requiring such a sale is 6 months beginning from the date when the tenants were given notice of the sale, or, if a notice has been served under section 11A, the date when the purchaser complied with the notice (s12A(2)).

[7]Section 19 enables the Court on the application of any person interested to make an order requiring any person “who has made default in complying with any duty imposed on him by any provision of this Part” to make good the default within the time specified in the order. The application cannot be made until 14 days have elapsed since the service of a notice requiring the other person to make good the default. In addition to this means of enforcement, the 1996 Act introduced a penal element. A landlord who makes a relevant disposal without complying with section 5, or in contravention of a prohibition imposed by sections 6 to 10, commits an offence triable summarily (s10A(1)).

[8]The issue in this case turns on the effect of section 11A taken with section 54. “11A Right to information as to terms of disposal &c(1) The requisite majority of qualifying tenants of the constituent flats may serve a notice on the purchaser requiring him –

a. To give particulars of the terms on which the original disposal was made (including the deposit and consideration required) and the date on which it was made, and

b. Where the disposal consisted of entering into a contract, to provide a copy of the contract.

(2) The notice must specify the name and address of the person to whom (on behalf of the tenants) the particulars are to be given, or the copy of the contract provided

(3) ….

(4) A person served with a notice under this section shall comply with it within the period of one month beginning with the date on which it is served on him 54 Notices (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. (1) The requisite majority of qualifying tenants of the constituent flats may serve a notice on the purchaser requiring him – a. To give particulars of the terms on which the original disposal was made (including the deposit and consideration required) and the date on which it was made, and b. Where the disposal consisted of entering into a contract, to provide a copy of the contract. (2) The notice must specify the name and address of the person to whom (on behalf of the tenants) the particulars are to be given, or the copy of the contract provided (3) …. (4) A person served with a notice under this section shall comply with it within the period of one month beginning with the date on which it is served on him (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.

Factual background

[9]The defendant acquired the freehold reversion of Brambridge House in Hampshire on 3rd December 2001. The claimants are a number of tenants of flats in the building. A section 5 notice was given by the previous landlords but there is a dispute (largely turning on the treatment and valuation of fishing rights attached to the property) as to whether the subsequent disposal contravened the provisions of sections 6 to 10 of the Act. That is not before us. For the purpose of this appeal it is to be assumed that there was such a contravention. On 13th May 2002 notice was given (under the Landlord and Tenant Act 1985, s3, 3A) notifying the tenants of the change of ownership.

[10]On 27th May 2002 notice was given on behalf of the claimants, purportedly under Section 11A, requiring information about the disposal. There was no response to that notice. On 29th May 2002 the Appellant’s solicitors, Wallace & Partners wrote “We do not believe that the notice enclosed with your letter constitutes a valid notice…..”. On 8th September 2002, the claimants gave notice under section 19 requiring compliance. The statutory 14 days elapsed without response, and these proceedings were commenced. For present purposes there is no dispute that the persons giving the section 11A notice were the requisite majority of the qualifying tenants.

[11]I turn to the form of the notice, which is under challenge. There is no prescribed form for such a notice. Accordingly the only guidance available as to its contents is that contained in the Act. The notice was signed by the solicitors for the named tenants. It was addressed to the M25 Group at the address of their solicitors. It referred to the notice of the disposal given on 13th May 2002. It required the purchasers to give particulars of the terms on which the disposal was made, including the consideration paid and a copy of the contract. It required those particulars to be sent “to us as solicitors to the above qualifying tenants”.

[12]So much is uncontentious. The difficulty arises over the identification of the tenants, which was stated as follows:- “We act for John James Tudor, Ruth Watts Davies, Richard Earlam, Edith Dorothy Stock and Canara Limited, who are the qualifying tenants in respect of Brambridge House, Brambridge Park, Bishopstoke, Hampshire.” There is no dispute that all those named were qualifying tenants, and that accordingly the first part of section 54 (2) was satisfied. However the notice failed to state “the addresses of the flats of which they are qualifying tenants”, as required by that subsection. It is also common ground that, if the section 11A notice was not valid, then the time for exercising the tenants’ rights under section 12 has expired, and those rights are effectively lost. It is in these circumstances that the defendants applied to strike out the claim.

[13]Insofar as it is relevant to enquire as to the defendants’ state of knowledge at the time, the Judge said this:- “It is clear from the claimants’ evidence that prior to the acquisition by the defendant the previous landlords’ solicitors were made aware of the addresses of all the relevant tenants and that subsequent to the questioned notice, 23rd July 2002, the tenants’ solicitors wrote to the (new) landlords’ solicitors setting out the relevant flat numbers.”(transcript, p 3B) He also referred to a schedule of qualifying leases, said to have emanated from the vendor landlords, apparently dating from about January 2001, which relates the names to the relevant flat numbers. It is uncertain on the evidence whether that was known to the purchasers. The Judge noted that Mr Gaunt QC, for the tenants, had “trailed his coat a little” by saying that he took it to be agreed that the landlords knew of the schedule of lettings, and had elicited no reply from Mr Radevsky for the purchaser. The Judge said:- “It seems to me that if this is a relevant consideration then(1) it is highly probable as a matter of ordinary common sense that the landlord would know what the lettings were, and

(2) if the landlords are saying they did not know that would be a triable issue on the facts and not open before me on this application.” (p 17E)

[14]I did not understand Mr Radevsky, before us, to challenge that particular passage, although his general submission was that the purchaser’s state of knowledge was irrelevant.

[15]The sole issue for the appeal is whether the failure to state the addresses was fatal to the validity of the notice: in other words, whether the requirement was “mandatory” or “directory”. I should add that no excuse is put forward for the omission; it was an unfortunate oversight by the solicitors.

The judgment below

[16]The Judge referred to “two different lines of authority”, relied on by counsel. The first was exemplified by the recent decision of this Court in Burman v Mount Cook Land Ltd

[2002] Ch 256

. It concerned a requirement under the Leasehold Reform Act 1993, for the landlord to serve a counter notice saying whether or not the right to a new lease was admitted and, if so, which of the tenants’ proposals were acceptable. The notice in question did not contain such a statement. The Judge had upheld the notice on the basis that “a reasonable tenant” would not have been misled. That decision was reversed in this Court. Chadwick LJ, giving the leading judgment said that the answer could only be found by construing the statutory language in the context of the statutory scheme. Having reviewed the complex statutory requirements in detail he concluded that the landlords’ counter-notice was “integral” to the proper working of the statutory scheme, and the failure to comply with the statutory requirements was fatal to its validity.

[17]Other cases to similar effect mentioned by the Judge are Elnaschie v Pitt Place

(1998) 78 P&CR 44

, and Speedwell Estates Ltd v Dalziel

[2002] 1 EGLR 55

, both decisions of this Court. An earlier case in the same line, relied on by Mr Radevsky before us but not cited to the judge, was Byrnlea Property Investments Ltd v Ramsay

[1969] 2 QB 253

. This related to a requirement of the Leasehold Reform Act 1967 for the notice of a lessee, seeking to extend his interest under that Act, to indicate whether he was seeking the freehold or an extended lease. This failure was held to be fatal, because under the statutory scheme, the notice was designed to lead to a “statutory contract” binding on both parties (p263 F – H, per Lord Denning, MR). As Edmund Davies LJ pointed out, if the notice had been held to be valid, “The remarkable result would be that there would instantly spring into being at the moment of its service two statutory contracts, both binding on the parties and each differing in important respects from the other.” (p267).

[18]On this line of authority, the Judge commented:- “All these authorities are completely consistent. If you are seeking to see whether a notice complies with the statutory requirement you construe the statute and apply it to the notice. You do not ask the question ‘what would a reasonable recipient think’. On those authorities, and if those were the only line of authorities, that notice plainly does not comply. The addresses are not there in any shape or form.” (p 8 – 9).

[19]As the Judge noted, Mr Gaunt did not dispute the effect of those cases, on their own facts. He accepted that the notice in this case failed to comply with the statute; but the question was:

“what is the effect of that failure and does it matter?”

(p 9B). For this purpose Mr Gaunt relied on a second line of authority, which establishes that not every failure to comply with a statutory requirement for the form of notice makes the notice a nullity. The law draws a distinction between requirements regarded as “mandatory” and those regarded as “directory” or “permissive”. The distinction is easier to state than to apply, but, as the Judge said, the principle has a long history dating back more than 100 years (see e.g. Howard v Boddington (1877) 2PD 203).

[20]In the present context, fortunately, we have very recent guidance from this Court, in a case concerning Part I of the 1987 Act, in its unamended form: Kay Green v Twinsectra

[1996] 1WLR 1587

. In that case the former landlord had sold a number of buildings, some of which fell within Part I of the 1987 Act. The required section 5 notice had not been served. Furthermore, the vendor had failed to comply with his duty (under s 5(5)) to “sever” the transaction, so that the buildings within Part I of the Act were sold separately. A majority of the tenants in three of the buildings containing flats subsequently served a purchase notice on the new landlord under section 12 as it then was. Section 12(3)(a) provided that, where the interest subject to the disposal related to property in addition to the premises within Part I, the purchase notice “shall…require that the new landlord dispose of that estate or interest only so far as relating to those premises”, subject to “such modifications as are necessary or expedient in the circumstances.” Contrary to that requirement, the purchase notice required the transfer of all the buildings, whether or not within Part I. The Judge held that that was a clear breach of the section, which was fatal to the validity of the notice. The Court of Appeal reversed that decision, holding that that particular requirement was directory only.

[21]In reaching that conclusion the Court relied on two previous authorities. The first was Howard v Secretary of State

[1975] QB 235

. Although in a very different area of the law, it is of some relevance to this case, because there also the notice included some, but not all, of the information required by the statute; but (unlike in this case) it was not information readily available to the recipient. The case concerned the requirements for a notice of appeal against an enforcement notice, under the Town and Country Planning Act 1968. The Act required that an appeal should be made by notice in writing to the minister, “which shall indicate the grounds of the appeal and state the facts on which it is based”. Failure to submit a valid notice of appeal within the permitted time limit would result in the enforcement notice taking effect and any right to challenge it being lost. There was no power to extend the time. In that case a notice of appeal was served in time, but it failed to state either grounds or facts. A letter was sent by the appellant’s solicitors giving the necessary information, but owing to office error it was not posted until after the period had elapsed. The Court of Appeal held that, although the requirement for a written notice of appeal was mandatory, the requirement to set out the grounds and the facts was directory only. Stamp LJ said:- “The machinery of the enforcement provisions and the appeal therefrom simply would not work unless there were some fixed time put in section 16 (1) to limit the time in which an appeal is to be brought. That provision is therefore imperative or mandatory and a failure to appeal within the time there limited clearly goes to the jurisdiction. The provisions of subsection (2) requiring the notice to indicate the grounds of appeal and to state the facts on which it is based appear to me to be more in the nature of procedural matters which are directory and do not go to the jurisdiction.” (p 243 E-F).

[22]The other case relied on in Kay Green was a decision already mentioned, Belvedere Court Management Ltd v Frogmore Developments Ltd (see above). The relevant passage comes at the end of the judgment of Hobhouse LJ, where he said:- “By way of final comment I would add that I am strongly attracted to the view that legislation of the present kind should be evaluated and construed on an analytical basis. It should be considered which of the provisions are substantive and which are secondary, that is, simply part of the machinery of the legislation. Further, the provisions which fall into the latter category should be examined to assess whether they are essential parts of the mechanics or merely supportive of the other provisions so that they need not be insisted on regardless of the circumstances. In other words, as in the construction of contractual and similar documents, the status and effect of the provision has to be assessed having regard to the scheme of the legislation as a whole and the role of that provision in that scheme - for example, whether some provision confers an option properly so called, whether some provision is equivalent to a condition precedent, whether some requirement can be fulfilled in some other way or waived. Such an approach when applied to legislation such as the present would assist to enable the substantive rights to be given effect to and would help to avoid absurdities or unjustified lacunae.” ([1997] QB at p886E-G).

[23]Following the approach of those two cases Aldous LJ, giving the leading judgment in Kay Green, said:- “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.” (p 1600B). On the other hand, the requirement in section 12(3)(a) that the notice should require disposal “only” of the premises within Part I was “directory”. He said:- “In this case, the purchase notice included extra property, but that did not invalidate the notice as a whole…. The landlord was given adequate notice that the tenants of buildings 1 and 4 of Tudor Court and Tudor House wished to acquire the freehold interest in them. That was in my view sufficient.” (p 1602B-C)

[24]Staughton LJ agreed:- “I cannot regard this defect in the tenants’ purchase notice as so significant as to render it altogether invalid, for three reasons. In the first place, it was in all probability caused by the original landlord’s failure to serve a notice under section 5 and in doing so to sever the transaction as required by subsection (5) of that section. Secondly, it must have been perfectly obvious to the new landlord which parts of Tudor Court could, and which could not, qualify under Part I of the Act. And thirdly, the purchase notice allowed as an alternative that the terms might be determined by a rent assessment committee, which would have jurisdiction under section 13(1)(a) to determine ‘the identity of the property to be disposed of’. I would therefore conclude that the purchasers’ notice did not comply with section 12 in any respect that was imperative or mandatory but at most where it was directory …”. (p 1604 C-E). The other member of the Court (Sir John May) agreed with both judgments.

[25]In the present case Judge Cooke held that the same principle applied. He correctly observed that the Court “is not operating some sort of 17th century dispensing power”, and that, in dealing with the subject of enfranchisement, lease extension and matters of that kind, many of the requirements of notices must be treated as mandatory. On the other hand:

“One ought to remember that these sort of statutory provisions are aimed at providing a commercially fair result so that recipients of notices are told what they have to be told but that the object of the exercise is the giving of information and the defining of issues, not prescription of steps in a ritual dance or a complex game, one false step in which is intended to produce disaster.”

(p 15B-C).

[26]He said rightly that the starting point must be the purpose for which the statute requires a notice containing the information; and that the purpose of the section 11A notice is:

“(a) as regards the givers, the tenants, to seek information as to the transactions; (b) as regards the recipient landlord to tell him who seeks the information and whether the seeker of the information equals a majority of the qualifying tenants and is therefore entitled to it at all.”

(p 16C-D). He accepted Mr Gaunt’s submission that in relation to the second purpose, the notice is at best of only limited assistance to the landlord in deciding whether or not he is obliged to give the information. The landlord needs to know, not merely the identities of the qualifying tenants and which flats they occupy, but how they relate to the total number of flats and the total number of qualifying tenants, in order to see whether those serving the notice are “the requisite majority”. The Judge concluded that the “irreducible minimum” of matters that must be regarded as mandatory are “matters which but for the notice the landlords could never know”. He gave as examples:- “Who is giving the notice, what their proposals are, whether they accept the other party’s proposals, what property they seek to acquire, are all things the recipients of a notice must be entitled to receive ‘en clair’ and not have to guess at. By contrast it seems to me that where the information which the notice contains achieves the purposes of the notice then the further statements which the statute requires but which once given the mandatory facts are common ground or readily and indisputably ascertainable are likely to be regarded as directory only. It will be helpful to have them but the purpose of the notice is achieved without them.” (p 17E – 18A ). He regarded the Kay Green decision as strongly influenced by the fact that the recipient of the notice would have “uncontroversially known the true position as to the relevant facts”. He continued:

“Whether or not one accepts that the schedule was definitely known to the present landlords, what is clear is that…. a landlord receiving a notice would have had in any case to relate it to the underlying tenancies which were on the facts uncontroversial and something the landlords would either have known or could easily have discovered. Once the identity of the notice givers was known it could by relating the notice to the uncontroversial facts (some of which should have been contained in the notice but others of which would not have been) have answered the question ‘Are these people entitled to information?’”

(p 18 C-F).

Submissions in this Court

[27]I agree with Mr Radevsky that the state of the landlords’ knowledge in fact is not the material issue (see Speedwell Estates Ltd v Dalziel (above) at para 24, per Rimer J). On the other hand, I regard it as important that the parties are in an existing landlord and tenant relationship, which the new landlord has undertaken voluntarily. In recognition of that relationship, the draftsman has clearly proceeded on the basis that each side will have, or be able to obtain, relevant knowledge about the tenancies in the building. The concept of a “requisite majority” of qualifying tenants implies an assumption that those tenants who wish to rely on the Act will know, or be able to find out, the relevant information about the other tenancies; and conversely that the landlord will be able to obtain that information in order to check the position. As the Judge said, he will not obtain that information, even from a notice which complies in every particular with the Act.

[28]Thus, to use the Judge’s phrase, the Act proceeds on the basis that certain facts are “readily and indisputably ascertainable”. It is permissible to construe section 54 with that in mind. Whether or not the new landlords had the schedule of addresses, it is not suggested by Mr Radevsky that they would have had any practical difficulty in discovering them.

[29]Mr Radevsky submits further that if the requirement for addresses is to be held to be “directory”, it is the same as treating it as optional, which is contrary to what the section says. The same point could often be made of provisions held to be directory. For example in Howard v The Secretary of State, the Court’s decision resulted in effect in the requirement to state grounds and the facts relied on becoming optional as far as the original notice was concerned. The answer in that statutory scheme, as Lord Denning said (p 243A), was that the defects could be remedied later, either before or at the hearing of the appeal, provided the authority was given an opportunity to deal with the points raised. It might have been thought that the requirement to know the grounds of appeal (which were entirely in the knowledge of the appellant) was more significant to the authority than the requirement in this case to state the addresses.

[30]Mr Radevsky also made certain points on the detail of the schedule supplied to the previous landlords in 2001. For example he drew attention to the fact that in relation to flat 10 there were two joint tenants, Mrs Watts Davies and Mr Earlam, whereas from the section 11A notice both names were given without any indication that they were occupying the same flat. On the other hand Mrs Stock, also referred to in the section 11A notice, was apparently occupying three flats, which according to the 2001 schedule had been joined together into one flat. Mr Radevsky hypothesised that the flats might have been divided before the time of the section 11A notice (as apparently has happened more recently, after their acquisition by the present landlords). He refers rightly to the fact that the section 11A notice must reflect the position at the time of the notice, which may not be the same as it was at the time of the disposal. However, it does not seem to me that these points add anything to his main point. Once one accepts that the landlord has to do some checking of the information in order to know whether any obligation under Part I arises, then there is no difficulty in accepting that these matters also may have to be checked.

[31]As to what would happen in the unlikely event that the tenants refused to supply their addresses, it is perhaps unnecessary to speculate, since it is difficult to envisage circumstances in which a problem would arise. However Mr Gaunt suggested that in such a case section 19 of the Act, which provides powers to enforce any “duty” under Part I, would enable the Court to order the party serving the notice to provide the missing details. Mr Radevsky (somewhat unconvincingly taking the part of the hypothetically defaulting tenant) suggested that the section would not apply, because the tenant would be in breach of no “duty”, there being no duty to serve a section 11A notice in the first place. I would prefer not to decide a point which may be relevant in other circumstances. However, it would come oddly from a tenant, having chosen to rely on a notice under section 54, to argue that he was under no “duty” to do what the section requires him to do. Mr Radevsky also pointed out that in that hypothetical event, there might be difficulties with the time limits provided under section 12A(2), which may depend on the time at which the section 11A notice is treated as effective. That again seems to be a bridge to be crossed when one comes to it. In the unlikely event of a problem arising in practice, I have no doubt that a purposive construction of the Act would enable a solution to be found.

[32]Of more concern, was Mr Radevsky’s submission that section 54 could not be construed with only section 11A in mind. This was not a point considered by the Judge, and at first sight it raises a difficulty. Section 54 applies the same formal requirements to any provision of Part I or Part III requiring a notice by a requisite majority of qualifying tenants. It is unnecessary to refer to all the provisions where such a requirement may arise. The high point of the submission seems to me in relation to notices which may have penal consequences. The best example is section 6(2), which provides that where an acceptance notice has been served on the landlord he may not dispose of the protected interest except to a person nominated by the qualifying tenants. An acceptance notice, as defined by section 6(3), is subject to section 54, and must therefore include a statement of both names and addresses. A disposal in contravention of the prohibitions imposed by section 6 is one of the matters giving rise to a potential offence under section 10A. A landlord charged with such an offence, so the argument runs, would be able to insist that the prosecution proved strict compliance with the statutory formalities. The mandatory/directory divide should not be permitted to apply in such a penal context.

[33]I would be reluctant in the context of this appeal, to decide an issue which might arise in criminal proceedings on entirely different facts. Although there is obvious theoretical attraction in the submission that section 54 must be interpreted in the same way throughout the Act, practical considerations entitle the Court to take a more flexible approach. The issue is not the meaning of section 54, which is quite clear, but the consequences in different situations of a failure to comply with it. Section 54 is not a substantive provision, but is ancillary to the various notice provisions. A less economical approach to drafting might have resulted in the requirements being stated separately in each of the sections to which it applies. In deciding the consequences of non-compliance in any case, we are entitled in my view to consider the issue in the particular statutory context in which it arises. I bear in mind also that the penal provision of section 10A was included by the 1996 Act in an attempt to strengthen the position of tenants. It would be surprising if one of the results was to subject the tenants to a more formalistic approach to their own obligations, even in cases where no penal consequences can arise.

Conclusion

[34]In my view, the Judge was entirely correct in upholding the validity of the notice, and I would have been content to adopt his reasons. The same result may be arrived at by applying the analytical approach advocated by Hobhouse LJ. That involves considering which of the provisions are substantive and which are secondary or “machinery”; and in relation to the latter, considering whether they are “essential parts of the mechanics or merely supportive of the other provisions”. Here the substantive provisions are those conferring the right to acquire the freehold. The secondary (machinery) provisions include the notice requirements of section 11A itself, and the formal requirements of section 54, including the requirement for the addresses. The requirement for a notice is essential machinery, as no doubt is the requirement to indicate who is giving the notice. However, in agreement with the Judge, I would hold that the requirement to state addresses in the notice is “merely supportive”; and that accordingly a failure in this respect does not invalidate the notice.

[35]For these reasons, I would dismiss the appeal. Lord Justice Potter

[36]I agree.

Order

Appeal dismissed. Order as per draft. (Order does not form part of the approved judgment)