Zaman v Saleem [2015] EWCA Civ 640

Case No B5/2014/3955[2015] EWCA Civ 640
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT
SITTING AT BRADFORD
(HIS HONOUR JUDGE DAVEY QC)
Venue Royal Courts of JusticeDate Tuesday, 19 May 2015
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE ARDEN
Between
ZAMANAppellantv
Between
SALEEMRespondent
DAR Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr W Josling (instructed by Certus Solicitors LLP) appeared for Appellant for The Respondent was not present and was not represented
J U D G M E N T

LADY JUSTICE ARDEN:

[1]This is a renewed application for permission to appeal against the order of His Honour Judge Davey QC dated 10 November 2014.[2]Permission is sought on a very short point indeed and it is simply on the interpretation of Clause 3.3. This clause is in effect set out on page 79 to 80 of the bundle:
"2. If at any time during the term the Lessee (being an individual) shall become bankrupt or (being a company) shall enter into liquidation and the trustee in bankruptcy or liquidator shall disclaim this Lease the Surety shall if the Lessor shall by notice within sixty days after such disclaimer so require take from the Lessor a lease of the demised premised for the residue of the term of years hereby granted which would have remained had there been no disclaimer at the rents then being paid under this Lease (except that the Surety shall not be required to procure that any other person is made a party to that lease as guarantor) such new lease to take effect from the date of such disclaimer and in such case the Surety shall pay the costs and expenses in relation to such new lease and execute and deliver to the Lessor a counterpart of it. 3. If this Lease shall be disclaimed and for any reason the Lessor does not require the Surety to accept a new lease of the demised premises in accordance with Clause 2 above the Surety shall pay to the lessor on demand an amount equal too the difference between any money received by the Lessor for the use or occupation of the demised premises and the rents payable under the Lease had there been no disclaimer in both cases for the period commencing with the date of such disclaimer and ending on whichever is the earlier of the following dates: 3.1. the date six months after such disclaimer. 3.2. the date (if any) upon which the demised premises are relet."
[3]The ambiguity in this clause is whether the words "for any reason the landlord does not require the guarantor to accept a new lease of the premises in accordance with Clause 3.2" means that the landlord must have had an ability to require the guarantor to accept a lease of the premises in accordance with Clause 3.2 which is a covenant to take on a new lease following disclaimer.[4]If so, then Clause 3.2 would not have been applicable in the circumstances of this case because although there was a disclaimer, it is common ground that Clause 3.2 did not apply in the circumstances of the present case.[5]In my judgment, this point is not arguable because the words in question are "for any reason the landlord does not require". The meaning put forward does not give any weight to the words "for any reason", which are totally unqualified and which have to be given their natural meaning.[6]Moreover, the words which follow, "the landlord does not require the guarantor", are again words which include the situation where the landlord decides not to implement clause 3.2 or the situation where he is unable to do so. When the clause was drafted, no doubt the landlord would have tried to get the best protection that he could, which would be the meaning given to this clause by the judge.[7]In my judgment, it would be rewriting the clause for this court to say that the words "if for any reason the landlord does not require the guarantor et cetera" mean "if for any reason the landlord is able to but does not require the guarantor et cetera". It would be writing in words and that is contrary to the role of the court when interpreting the party's document.[8]I will dismiss the application.