Doleman v Sayle & Ors [2008] EWCA Civ 1014

[2008] EWCA Civ 1014Case No B2/2008/1333
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHESTER COUNTY COURT
(HIS HONOUR JUDGE HALBERT)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 19 th August 2008
Before
LADY JUSTICE ARDEN  DBE
Between
DOLEMANAppellantSAYLE & ORSRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr G Wheatley (instructed by Messrs Birchall Blackburn) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]This is a renewed application for permission to appeal against the order of HHJ Halbert dated 7 April 2008. Permission was refused on paper by Sir John Chadwick.[2]The background is set out very succinctly in the skeleton argument of Mr Geraint Wheatley, who appears today, dated 26 May 2008:
“2. The defendants are the freehold owners of a public house currently occupied by the Claimant known as the Hanging Gate, Sandy Lane, Weaverham, Cheshire (“the Property”). A company called Newlord Ltd was, until it entered liquidation on 22/03/07 and subsequently disclaimed its interest in the Property, the Defendant’s tenant. The Claimant had been Newlord’s business tenant. By notice dated 30/06/06 made pursuant to s.25 of the Landlord and Tenant Act 1954 (“the 1954 Act”), Newlord gave notice to the Claimant to terminate his tenancy on 08/01/07. 3. The Claimant issued (but did not serve) his Claim Form on 05/01/07. He sought two forms of relief, namely: 3.1 A declaration that, as he had allegedly previously renewed his tenancy with Newlord, such that it did not expire until March 2009, the s.25 notice was invalid (as it had been served too early in renewed term). This aspect of the Claimant’s claim will be referred to herein as the ‘claim for declaratory relief’; Alternatively, in the event that the s. 25 notice was valid - 3.2 A claim for a new tenancy under s.24 of the 1954 Act. This will be referred to as the ‘landlord & tenant claim’. 4. The Claim Form was not served on the Defendants until 30/04/07. This was after the 2 month period provided for ‘landlord & tenant claims’ by CPR 56.3. 5. On 06/08/07 the Defendants applied for summary judgment / to strike out all or part of the claim. The application was heard by DJ Little in the Northwich County Court on 26/11/07. He found in the Defendants’ favour and struck out the claim for the declaratory relief principally on the basis that the Claim Form should have been served within the time stipulated by CPR 56.3. At that hearing, the Claimant had abandoned his landlord & tenant claim. The Claimant’s appeal, which was heard by HHJ Halbert in the Chester County Court on 01/04/08, was unsuccessful. He restored the Claimant’s claim for declaratory relief and gave consequential directions.”

Alternatively, in the event that the s. 25 notice was valid -

[4]I will next read CPR 56.3. It starts by referring to the expression “unopposed claim”, which is a claim defined by paragraph 1 of CPR 56.3 as a claim for a new tenancy under Section 24 of the 1954 Act in circumstances where the grant of a new tenancy is not opposed. CPR 56.3 reads in material part: (3) Where the claim is an unopposed claim – … (b) the claim form must be served within 2 months after the date of issue and rules 7.5 and 7.6 are modified accordingly” CPR 7.5 and 7.6 permit the claim form to be served within four months after the date of issue. Rule 7.6 enables the Claimant to apply to the court for an order extending the period within which the claim form may be served in the circumstances set out in that rule. But neither CPR 7.5 nor CPR 7.6 refers to CPR 56.3.[5]This application was refused on paper by Sir John Chadwick but it is renewed before me today. Essentially the appellant’s argument is that there has to be a single date for the service of a claim form, and that accordingly the specific period in CPR 56.3 must prevail. Mr Geraint Wheatley submits that there cannot be two dates by which one single claim form must be served. He further submits that a person would not intend to serve a partially valid claim form, and that his interpretation is a commercially sensible one because it is consistent with a clear policy, namely that there should be clarity and a single date for the service of the claim form, and in any event, he says, the claimant could seek an extension if he could satisfy the conditions in CPR 7.6.[6]In my judgment there is no real prospect of success. The proposition that there can only be a single service date for the claim form, as I see it, is not logical. The logical result is that if a claim form contains more than one claim and it is served outside the period for one claim but within the period for another claim, it is pro tanto validly served; and in my judgment that is the position with which one should approach CPR 56.3. What Mr Wheatley submits is that the expression “the claim form” in CPR 56.3 (b) must mean the entire claim form. As I see it, it is perfectly capable of being read as meaning the claim form relative to the unopposed claim which has just been referred to; moreover, the words “rules 7.5 and 7.6 are modified accordingly” in my judgment mean only that those rules are modified to the extent rendered necessary by the preceding words requiring the landlord and tenant claim to be served within two months. There is nothing to indicate that the rules intend that a separate and different claim should be ruled out of time when it is served within a four month period. Mr Wheatley’s point is that it would be simpler to have a single period, but the rules have clearly rejected that solution by the building into the rules two separate periods, one in CPR 7.5 and one in CPR 56.3, and the question then is whether or not the rules should be construed to produce what I have termed the sensible result. In my judgment they should be, because, if Mr Wheatley is correct, the rules produce an unexplained distinction between the claim form which contains one claim which is required to be served within two months and another claim which may be served within four months, and claim forms containing separate claims. The former, on his argument, is invalidly served in its totality if it is served outside two months, whereas if the claimant had issued two separate claim forms, one for each claim, at least the claim that could be served within four months would have been validly served. To that Mr Wheatley says, oh well, you must assume that the litigant will be properly represented and he can read the rules which lay down one period, but as I see it that creates a trap for the unwary. The suggested reason of simplicity does not justify the distinction to which I have referred. That distinction, as I see it, is inconsistent with access to justice and thus with the right guaranteed by Article 6 of the European Convention on Human Rights, and therefore the court would be bound to interpret CPR 56.3 in the way that I have suggested. Added to that, the point is wholly without merit and would only enable the landlord to take advantage of a point which he would not have been able to take advantage of if two claim forms had been issued.[7]In those circumstances, I agree with Sir John Chadwick and reject this application.

Order

Application refused