“The Tenant can determine this Lease on24th March 2007 by giving to the Landlord not less than 9 months’ prior written notice and provided that: (a) the Tenant has paid the rents reserved up to the date of expiry of such notice; and (b) on the expiry of such notice the Tenant must deliver up the Premises with vacant possession; THEN on the expiry of such notice the Term will end but without affecting the rights of either party against the other in respect of any previous breach of covenant.”
“Dear Sirs RE: A Rail linked Warehouse situated at Hannah Close, Brent Park, Neasden, North London (“the Property”); and a lease dated22 July 2002 between The Prudential Assurance Company Limited (1) and Tibbett & Britten Limited and Tibbett & Britten Consumer Group Limited (2) (“the Lease”) We act for Exel UK Limited, the company formally known as Tibbett & Britten Limited. As the solicitors and authorised agents of Exel UK Limited we HEREBY GIVE YOU NOTICE pursuant to clause 7.2 of the Lease to determine the term granted by the Lease on24 March 2007 . We are sending a copy of this letter to your solicitor, Ross Berridge, at CMS Cameron McKenna LLP. Yours faithfully Kimbells LLP cc: CMS Cameron McKenna LLP”
“The general assumption is that Exel will always exercise a break option to terminate a lease early. Indeed, notional capital authorities in project approvals are always calculated on this basis. Therefore specific authority has to be obtained to not exercise a lease break, and the Sector must be able to demonstrate a commercial case for remaining in the property until the earliest of the next break option date or the lease end.”
“… In the meantime, the deadline for serving the lease break is fast approaching. This must be served not later than 24/6/06, otherwise the opportunity to do so will be lost. The break would then take effect on 24/3/07. Nick has intimated in the past that it is your intention to serve the break, but may I have your firm instructions to do so? If there is a possibility that you will not serve the break, your business unit will be required to prepare a project, which freshly justifies the business case for committing to the lease for a further 5 years.”
“Please accept this as confirmation to break the lease at Hannah Close.”
“23. I turn to the first requirement: did the tenant, that is TC and no one else, have the relevant desire. In my view it did. I appreciate that one should not be cavalier about running together companies in the same group and treating them as one, even if they have the same ownership and are run by the same individuals. Two companies are two different persons and are to be regarded by the court and by the law generally as such. If this sometimes leads to technical problems for the two companies, then the short answer is that those who live by the sword of choosing to set corporate structures, often to take advantage of company and revenue law, sometimes die by the sword. 24. However, it seems to me unrealistic, indeed counter-factual, in the present case to conclude that TC did not have the necessary desire to determine the lease at the time the Notice was served. In effect, the various companies in the Procter & Gamble Group, including TC, deputed to Cincinnati, the headquarters of the Procter & Gamble Group, the power to make strategic decisions, and deputed to EMEA to decide what to do, as a result of those decisions, in relation to the various property interests of the various Procter & Gamble companies in this country. 25. I see no reason why a tenant company, which is a member of a group of companies, cannot delegate its desire to determine a lease to another company in the same group. An emotional desire may not be capable of delegation, but I do not see why a commercial desire, of the sort contemplated by Clause 7.1 of the lease in the present case, should not be capable of delegation. In those circumstances I think that Mr Jonathan Brock QC, who appears on behalf of TC, is right in his contention that, on the facts of this case, the necessary desire of TC has been established. 26. I turn to the second question, that is whether the Notice was served with the authority of TC. In this connection there is no doubt that it was not TC who drafted or sent the Notice; it was the solicitors, Stevens & Bolton. That in itself would not invalidate the notice. Not only a desire to serve a notice, but, even more clearly, the giving of a notice, can be delegated, provided it was delegated by the person who is required to give the notice. 27. Accordingly, the question is: was the giving of the Notice delegated to the solicitors by TC? I find that a more difficult question. However, despite Mr Lewison's submissions, I have come to the conclusion that the solicitors did have the authority of TC to serve the Notice. I revert to the evidence from which I have quoted. Decisions as to what to do about property owned by companies in the Procter & Gamble group, and in particular whether to serve the break notice under the lease, were effectively delegated to EMEA by each company within the group which owned property. For this purpose it does not seem to me unrealistic to treat the Procter & Gamble Group as having made a collective decision, imposed on them by Cincinnati, that decisions to serve notices and other decisions relating to English property, and in particular the decision whether to serve the break notice in relation to the subject property, would be dealt with by EMEA. 28. Even ignoring the fact that the letter of instruction to the solicitors was on TC writing paper and was written by Mrs McGregor, who was, I am satisfied, an employee of TC, it seems to me that the instruction to the solicitors to serve the Notice came from the group member, EMEA, to which the relevant decision has in practice been delegated by TC. The fact that nobody within the group had given his mind to the identity of the tenant does not seem to me to invalidate this conclusion. There was, in effect, a general view of all the companies in the group that EMEA would make the decision: it did so, and it instructed the solicitors to serve the Notice. 29. I think it can fairly be said that EMEA took that course on behalf of TC. In terms of commercial common sense, any other conclusion would appear to me to be perverse, given that only TC could serve the Notice. 30. Mr Lewison eloquently suggested that the correct analysis is, nonetheless, that it was left to Miss Taylor to decide for whom she was acting, and that she wrongly decided that it was the original tenant, H&B, as is indicated by the fact that she put its name in the Notice. Therefore, he says, it was H&B which was her client, and the Notice was served on behalf of H&B, and was therefore a bad notice, because it was not served on behalf of the tenant, TC. 31. That is an attractive argument but I do not think it is right. I suppose it is possible for a group of companies to appoint an agent, leaving it to the agent to decide which company in the group is the agent's principal. However, the argument does strike me as involving pulling oneself up by one's own bootstraps, on the facts of this case. 32. It seems to me that the solicitors were instructed by EMEA, who were acting on behalf of the tenant, whoever that was. EMEA was therefore acting on behalf of the tenant, who was in fact TC, when EMEA instructed Miss Taylor, and it was therefore TC which was Miss Taylor's client. Miss Taylor put the wrong name into the Notice. That does not mean that, unwittingly acting contrary to her instructions, she was changing the identity of her principal. She simply got the name of her principal wrong when she put it in the Notice. The fact that they letter of instruction for Stevens and Bolton was sent on TC writing paper by a TC employee reinforces this conclusion.”
“A general agency is an unusual commercial relationship, particularly where a tenant is the principal, the agent having authority to do anything in relation to the subject-matter of the agency, even to the extent of destroying that subject-matter, without reference to the principal. The inference of such an agency, in the absence of express authority creating the agency, requires clear evidence to support it. The mere payment of rent coupled with occupation does not necessarily indicate that the payer has the tenant's authority to terminate the estate: see Dun & Bradstreet Software Services (England) Ltd v Provident Mutual Life Assurance Association, June 9 1997 (Editor's note: Reported at [1977] EGCS 89.).”
“If the notice is given by somebody other than the lessee/lessor without stating that that person is acting as an agent, it will be valid if:(a) the giver was in fact duly authorised to give it; and (b) the circumstances are such that the recipient can act upon the notice safely in the knowledge that it will be binding on the principal of the giver ...”
“Proposition (3) is the crucial proposition in the present case. The court can draw the inference in appropriate circumstances that the giver of the notice had due authority to give it as a general agent, but the circumstances must be such that the recipient can act on that notice safely, knowing that the principal will be bound.”
“... I cannot see how the plaintiffs could act upon the notices safely as being notices that were in fact, or that they had reason to believe were, binding on Direct. They would have been aware that no consent had been given to any assignment by Direct, but that was not inconsistent with there having been an effective assignment. Without the production to them of an assignment, they could not know if Life was the right person to be giving the notices. If Life was not, they could not know from the notices that Direct desired to give and gave (if it did) the break notices. True it is that the plaintiffs were very slow to take the point, but the fact that the point was for a long time not taken does not show that there was no point to be taken, given that only the actual lessee could operate each break clause. I would therefore hold that there was insufficient material from which it could properly be inferred that Life was the general agent of Direct with authority from Direct to give the break notices. Nor for that matter do I think that there is evidence to support the inference that Mr Lines [a director of the landlord company] knowingly dealt with Life as the tenant. On the contrary, the plaintiffs could not act on the break notices safely in the knowledge that they were binding on Direct. It follows that the break notices served on Life's behalf were not valid.”
“A similar argument was run (successfully at first instance but unsuccessfully in the Court of Appeal, which had further evidence adduced before it on the question) in Lemmerbell. The evidence relevant to the issue in the present case (largely given by Mr Wilkie the chief executive of both HIHL and HIL) was to the effect that HIHL had taken a decision at its Board meeting on20th January 1998 to break the Leases and had then instructed Mr Allington (an employee of HIL) to take the steps necessary to implement that decision. HIHL had no employees of its own (apart from two of its directors who were remunerated at the level of HIHL). Mr Allington (in common with other employees of HIL) was only dimly aware of the existence of a separate board of HIHL and had no idea that the leases were vested in HIHL as opposed to HIL. Mr Allington in due course handed the task of instructing solicitors to act in relation to the notices to Mr Atkinson, another HIL employee. Mr Atkinson was not conscious of there being any distinction between HIHL and HIL. So far as he was concerned he was an employee of Xyratex, which was the trading name of the group, but he had no idea of the group structure. He simply supplied the solicitors with a bundle of the relevant deeds, and (given his ignorance of the group structure) had no reason to suppose that the notice was not correctly drafted in the name of HIL. No one (from Mr Wilkie down) ever had an intention that HIL as such should act as HIHL's agent for the purposes of serving the notices. Nor was there any evidence in the dealings between HIHL and Lionsgate G from which it would have been possible for Lionsgate G safely to conclude that HIL had general authority to act for HIHL in relation to the leases. In fact it did not. The fact that Lionsgate G might have deduced, from its actual knowledge of HIHL's intentions, that HIHL would never in practice seek to disown the notices does not mean that it was legally safe to act on the assumption that it would not. Accordingly, had I found against HIHL on the construction issue, I would have been unable to uphold the validity of the notices on this alternative ground.”
“We should however make clear that we formally reserve our client’s rights against your client in the event that L&B succeeds in establishing a possessory title against our client’s leasehold title.”
“(1) We can confirm that, if your client were to give our client the comfort it seeks in relation to the break clause, then our client would confirm, by way of consideration, that it would bring no claim against your client arising out of or in connection with L&B’s occupation of the disputed land save for points 2 and 3 below.”
“For the avoidance of doubt our client seeks comfort from your client that it may validly exercise the break clause notwithstanding that Ikea appears to have taken over control of part of its demised land as described above.”
“I thought the view had been taken at the meeting that if your client was going to break its lease there would be no deed of variation. My client would simply agree to take no issue regarding L&B and Ikea’s occupation. Do I take from this that your client is definitely seeking to determine its lease?”
“As you are aware, in all dealings relating to this lease, Exel has been acting on behalf of and representing the interests of both tenants. In so doing, Exel has been acting as agent and with the authority of [Consumer]. The break notice was given by Exel on behalf of both tenants with the authority of [Consumer].”
“(2) The question is not how the landlord understood the notices. 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. The approach in Reardon Smith Line Ltd. v. Yngvar Hansen-Tangen (trading as H. E. Hansen-Tangen) [1976] 1 W.L.R. 989, which deals with the construction of commercial contracts, is by analogy of assistance in respect of unilateral notices such as those under consideration in the present case. Relying on the reasoning in Lord Wilberforce’s speech in the Reardon Smith case, at pp. 996D-997D, three propositions can be formulated. First, in respect of contracts and contractual notices the contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant. But admissibility is not the decisive matter. The real question is what evidence of surrounding circumstances may ultimately be allowed to influence the question of interpretation. That depends on what meanings the language read against the objective contextual scene will let in. Thirdly, the inquiry is objective: the question is what reasonable persons, circumstanced as the actual parties were, would have had in mind. It follows that one cannot ignore that a reasonable recipient of the notices would have had in the forefront of his mind the terms of the leases. Given that the reasonable recipient must be credited with knowledge of the critical date and the terms of clause 7(13) the question is simply how the reasonable recipient would have understood such a notice. This proposition may in other cases require qualification. Depending on the circumstances a party may be precluded by an estoppel by convention from raising a contention contrary to a common assumption of fact or law (which could include the validity of a notice) upon which they have acted: Norwegian American Cruises A/S (formerly Norwegian American Lines A/S) v. Paul Mundy Ltd. [1988] 2 Lloyd's Rep. 343 . Such an issue may involve subjective questions. That is, however, a different issue and not one relevant to this appeal. I proceed therefore to examine the matter objectively. (3) It is important not to lose sight of the purpose of a notice under the break clause. It serves one purpose only: to inform the landlord that the tenant has decided to determine the lease in accordance with the right reserved. That purpose must be relevant to the construction and validity of the notice. Prima facie one would expect that if a notice unambiguously conveys a decision to determine a court may nowadays ignore immaterial errors which would not have misled a reasonable recipient. (4) There is no justification for placing notices under a break clause in leases in a unique category. Making due allowance for contextual differences, such notices belong to the general class of unilateral notices served under contractual rights reserved, e.g. notices to quit, notices to determine licences and notices to complete: Delta Vale Properties Ltd. v. Mills [1990] 1 W.L.R. 445 , 454E-G. To those examples may be added notices under charter parties, contracts of affreightment, and so forth. 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, at p. 454E-G, per Slade L.J. and adopted by Stocker and Bingham L.JJ.; see also Carradine Properties Ltd. v. Aslam [1976] 1 W.L.R. 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 any injustice to a recipient of the notice. I would gratefully adopt it.”
“In the case of commercial contracts, the restriction on the use of background has been quietly dropped. There are certain special kinds of evidence, such as previous negotiations and express declarations of intent, which for practical reasons which it is unnecessary to analyse, are inadmissible in aid of construction. They can be used only in an action for rectification. But apart from these exceptions, commercial contracts are construed in the light of all the background which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their intention: Prenn v. Simmonds [1971] 1 W.L.R. 1381, 1383. The fact that the words are capable of a literal application is no obstacle to evidence which demonstrates what a reasonable person with knowledge of the background would have understood the parties to mean, even if this compels one to say that they used the wrong words. In this area, we no longer confuse the meaning of words with the question of what meaning the use of the words was intended to convey. Why, therefore, should the rules for the construction of notices be different from those for the construction of contracts? There seems to me no answer to this question.”
“Whether that inaccuracy in the notice is fatal or not depends on the proper construction of the notices. The formulation propounded by Goulding J. in the Carradine case, at p. 444, was 'Is the notice quite clear to a reasonable tenant reading it? Is it plain that he cannot be misled by it?' Delta Vale Properties Ltd. v. Mills [1990] 1 W.L.R. 445 concerned a vendor's notice to complete which was in condition 23 of the conditions of sale, but I see no reason why any different principle of construction should apply. Slade L.J. observed, at p. 454: 'In my judgment, notices to complete served under condition 23, if they are to be valid, must be sufficiently clear and unambiguous to leave a reasonable recipient in no reasonable doubt as to how and when they are intended to operate.' 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. It is not an absolute clarity or an absolute absence of any possible ambiguity which is desiderated. To demand a perfect precision in matters which are not within the formal requirements of the relevant power would in my view impose an unduly high standard in the framing of notices such as those in issue here. While careless drafting is certainly to be discouraged the evident intention of a notice should not in matters of this kind be rejected in preference for a technical precision. The test is an objective one. In circumstances where an estoppel might arise the actual understanding of the recipient may be relevant, but in general the actual understanding of the parties is beside the point. That the test is an objective one was recognised in Micrografix v. Woking 8 Ltd. [1995] 2 E.G.L.R. 32 . It was held there that the landlords would not have been misled by the references to a wrong date both in the notice to terminate the lease and in the covering letter. Each document was expressly written pursuant to the particular break clause in the lease. The recipients would have observed the errors because they would be familiar with the terms of the lease and would have known that the only date of determination had to be23 June 1995 . They would know that there was no requirement to specify any date in the notice. They would see that the tenant wanted to leave. It was held that the notice was valid.”
“On the face of each notice, Life was said to be the tenant as successor in title to Direct, and that, if true, could only have come about as a result of an assignment without consent. But such an assignment would be effective to make the assignee the lessee for the purposes of clause 7(x). The reasonable recipient could not know, in the absence of proof of the assignment, whether Life was the lessee: it might have been. If Life was not in fact the lessee but Direct was, the reasonable recipient could not know whether Amery-Parkes [the solicitors who served the notices] were authorised by Direct to act for it and to serve the break notice, contrary to the express terms of the notice. To my mind, because it is not obvious from each notice that there was an error in the name of the lessee nor is it obvious who the actual current lessee was nor whether Amery-Parkes were duly authorised by anyone other than Life, it is impossible as a matter of construction to cure what we now know to be the defect by substituting Direct for Life as the person on whose behalf Amery-Parkes were giving each notice.”
“In Mannai itself the “objective contextual scene” which was allowed to play that role was limited to the terms of the leases. I am unable to read the words “circumstanced as the actual parties were” as admitting evidence the sole function of which is to demonstrate what the parties actually would have thought. This is to make a nonsense of the approach being described as objective and would render invalid the analogy with the construction of commercial contracts.”
“That conclusion highlights the importance of deciding whether or not the actual existence of HIL as a separate entity, with a director called Mr Piotr Nahajski who was not a director of HIHL, should be admitted as part of the objective contextual background. Without that additional piece of the jigsaw, the reasonable recipient of a notice expressed to have been given by HIL, would not have been in a moment's doubt that he had received a notice from HIHL. The only reasonable explanations for the reference to HIL would have been either that HIHL had changed its corporate name, or that there had been a simple error in the description of HIHL. The idea that some completely different entity was purporting to exercise for its own benefit a contractual right which it did not and could not enjoy, would have been far-fetched.Once, however, one has identified that HIL is a separate entity and that Mr Nahajski was a director of HIL but not of HIHL, the first of these explanations is displaced as a possible one by another, namely that the reference to HIL throughout the notices was deliberate. This does not remove all ambiguity from the notices since they continue to contain the reference to clause 7(1) of the leases (which can only be a reference to HIHL), but it raises the possibility that an unlawful assignment to HIL had taken place, and that HIL had mistakenly taken the view that the consequence of this was that it, HIL, now enjoyed the right to serve break notices. I cannot see why one should exclude the evidence of HIL's separate identity in construing the notices or the fact that Mr Nahajski was a director of HIL and not HIHL. Such evidence does not suffer from the vice of being evidence of subjective intention. It is evidence which was (unlike evidence as to whether or not an unlawful assignment had in fact taken place) publicly available. The fact that the relevant Lionsgate G personnel did not know these facts seems to me irrelevant to an objective construction. The question therefore is whether (given this fact) the notices can and should be construed as notices from HIHL.”
“Life, rather than Direct, might have been the lessee with the right to serve the break notice; and this was precisely what was asserted by the terms of the purported notice. The passage cited gives some grounds for supposing that, but for that fact, the Court of Appeal might have been disposed to accept the submission made on behalf of Direct that it was obvious that the solicitors were in error in stating that the notice was served on behalf of Life rather than Direct. In the present case, while HIL could conceivably have been the lessee, there were no conceivable legal circumstances in which it could have asserted a right to serve either of the break notices.”
“The question therefore resolves to this. Would the reasonable recipient assume that there had been a mistake in the description of the company giving the notice? Or would he entertain, as a matter giving rise at least to a reasonable doubt, the possibility that HIL had taken an unlawful assignment and had done so in the mistaken belief that it had thereby become entitled to the benefit of HIHL's personal right? Without claiming to find the answer altogether easy, I have concluded that the latter construction of the notice is not one which would have been seriously entertained by a reasonable recipient. The reasonable recipient would, rather, conclude that a mistake had been made in not naming HIHL as the giver of the notice. The personal nature of HIHL's right (emphasised by the express declaration in the leases as to the avoiding effect of an assignment to any one other than IBM) makes that the only explanation of the notice which carries conviction. If that is correct, the reasonable recipient would also have concluded that the notices had been signed by Mr Nahajski, a director of HIL, because he had been authorised by HIHL to do so. In so far as the recipient might have been in doubt as to Mr Nahajski's authority in this respect, it would have been entitled to seek proof of that authority from HIHL (which would have been forthcoming).”
“I do not consider that the mere fact that the ambiguity in the notice goes to the question of who is purporting to give it puts it into some special category. The question in every case is whether, on a fair construction of the notice, it is quite plain that the reasonable recipient cannot be misled by it. For the reasons which I have given, I do not think that a reasonable recipient would have been misled in the present case into thinking that it was HIL rather than HIHL which was purporting to exercise the right.”
“39. Mr Lewison contends that the reasoning [in Lemmerbell] applies here, while, of course, he accepts that each case must be determined on its own facts, and that there is the point that in the notice in that case, the wrong person, Life, was specifically described as “successors in title to the original tenant”
“37. ... the decisive factor which caused the judge to reach his conclusion was that a reasonable recipient in the position of the respondents receiving the Counter-Notice would (or could) have thought that the reference to the PFCS Trustees as the landlord was deliberate, and this was determinative of the issue. While it appears attractive at first sight, I do not consider that that can be the correct approach. It is, on analysis, an unhelpful test, inconsistent with Mannai , and, above all, not appropriate under the 1993 Act. 38. So far as unhelpfulness is concerned, it appears to me that the answer to the question whether the mis-identification of the landlord was “deliberate” or not depends on how one puts the question. If one were to ask whether the solicitors who prepared the Counter-Notice intended to identify the landlord in the Counter-Notice as the PFCS Trustees, the answer would be in the affirmative. To that extent the mis-identification was deliberate. On the other hand, if one was to ask whether the solicitors had intended to identify someone other than the actual landlord as the landlord, the answer would be in the negative. To that extent the mis-identification was a mistake. 39. The unhelpfulness of the test can also be demonstrated by reference to the facts in Mannai . The landlord who received the two notices could well (and indeed probably would) have believed that the identification of the termination date as 12 January was deliberate, on the basis that was apparently the date on which the tenants (albeit mistakenly) thought that the two leases would come to an end. On the other hand, if one asked whether the landlord believed the tenant intended to put in the correct date of termination, and that therefore the reference to 12 January was a mistake, the answer would be in the affirmative. 40. For this reason, it also appears to me that the test applied by the learned judge cannot have been the test applied in accordance with Mannai . The correct approach on the basis of the decision and reasoning in Mannai is as follows. One must first consider whether there was a mistake in the information contained in the notice (as there was as to the date in Mannai , and there was as to the landlord, in the present case). If there was such a mistake, one must then consider how, in the light of the mistake, a reasonable person in the position of the recipient would have understood the notice in the circumstances of the particular case. Finally one must consider whether, as a result, the notice would have been understood as conveying the information required by the contractual, statutory or common law provision pursuant to which it was served. The proper approach 41. The Counter-Notice was a notice purportedly served pursuant to a statutory provision, and the validity must therefore be assessed, by reference to, and in the context of, Chapter II of Part 1 of the 1993 Act, and s45 in particular. That appears to me to be the correct approach as a matter of principle, ...”
“The present case seems to me to bear little resemblance to the type of error addressed in Mannai . There, words containing a mere slip, obvious to the reader of the notice when read in context, were construed as meaning what they were plainly intended to mean. In the present case there is no equivalent error. The break notice is not merely given on behalf of Life rather than Direct, but it contains no explanation as to why it was so given, viz Life was the successor in title to Direct. I found it impossible to see how, in these circumstances, it is permissible to construe the break notice as given on behalf of Direct.” 61. It does not appear to me that the decision or reasoning of this court calls into question my rejection the second of the two suggested requirements of a s45 counter-notice. As I have indicated, the essential requirement of a s45 counter-notice, in connection with the issue in the present appeal, is that a reasonable person in the position of the recipient tenant could be in no real doubt but that the counter-notice had been served on behalf of the actual landlord. In my judgment, the notice in Lemmerbell was invalid not merely because it wrongly identified the tenant, on whose behalf it should have been served, but because a reasonable person in the position of the recipient landlord, would not have been confident that it had been served on behalf of the actual tenant. It is for this reason that Peter Gibson LJ said this at 71L: “To my mind, because it is not obvious from each notice that there was an error of the lessee, nor was it obvious who the actual current lessee was nor whether [the solicitors who served the notice] were duly authorised by anyone other than Life, it is impossible as a matter of construction to cure what we now know to be the defect by substituting Direct for Life as the person on whose behalf [the solicitors] were giving … notice.” 62. In my judgment, if it had been clear that the solicitors in that case were indeed serving the notice on behalf of the actual tenant, whoever it was, then it would have been a good notice. After all, the purpose of the break notice in Lemmerbell was not to identify the tenant to the landlord, but to communicate to the landlord an intention on behalf of the tenant, and no-one other than the tenant, an unequivocal desire to determine the lease in accordance with its terms. Once a person other than the actual tenant was identified in the notice as the person on whose behalf the notice was served, the notice could only be valid if it could be shown that, despite the mid-identification, a reasonable person in the position of the landlord could have been in no doubt but that the notice was served on behalf of the person who was the tenant. For the reasons given, the Court of Appeal held that a reasonable landlord could have been in such doubt.”
“The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption - either of fact or of law - whether due to misrepresentation or mistake makes no difference - on which they have conducted the dealings between them - neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.”
“... If the circumstances were such that it was reasonable to conclude that the insurers were aware of the nature of the limitation of the cover and that the insurers conduct represented that the cover was nonetheless satisfactory to them, then they implicitly represented that they would not claim any right that depended upon an assertion that the limitation of cover was unsatisfactory. In my judgment the brokers fail to make out this case on the facts. I have already made findings in respect of the state of mind of the insurers when they signed the order letters and received the cover notes and contract wording. Those findings were made in the light of the evidence given by the insurers themselves but they were based largely on the implications to be drawn from the surrounding circumstances at the time. The conduct of the insurers did not unequivocally represent, when viewed objectively, that they were aware of the existence and nature of the limitation of cover that had been inserted without their instructions and that the reinsurance was nonetheless satisfactory to them.”
“21... Mr Hamblen submits however that the representation must carry with it some apparent awareness of the right upon which the representor will not insist. Mr Flaux did not dispute this and I do not think he could have done so because otherwise the representation would lack the necessary character to found the estoppel. As the judge put it “the essence of the plea must go to the willingness of the representor to forego its rights”