Stephen Jourdan QC and Gavin Bennison obtain permission for a second appeal in notice to quit case
On 11 July 2022, Arnold LJ granted permission to appeal to the Court of Appeal against the decision of Zacaroli J in Turner v Thomas [2022] EWHC 1239 (Ch), which was itself a decision made on appeal from the County Court at Caernarfon.
Stephen Jourdan QC and Gavin Bennison, instructed by Peter Williams of Ebery Williams, are acting for the appellant tenant.
In granting permission to appeal, Arnold LJ stated that the appeal raised an important point of principle concerning the correct approach to the interpretation of unilateral notices.
That point of principle is as follows: where a landlord serves a notice to quit addressed to a previous tenant, being unaware of the identity (or even the existence) of the current tenant, is the notice to be interpreted as addressed to the current tenant if the reasonable recipient of the notice would understand that the landlord erroneously believed that the previous tenant was still the tenant?
Zacaroli J, hearing the case as a first appeal in the High Court in Cardiff, held that the answer to that question was “yes”. The test articulated by the majority of the House of Lords in v Mannai Investment Co Ltd v Eagle Star Assurance Co Ltd [1997] AC 747 was said to be capable of saving a notice to quit which clearly conveyed an intention on the part of the landlord to require the person who was in fact the tenant to deliver up possession of the land, even though the recipient knew that the landlord was unaware of the assignment of the tenancy to the current tenant. The reasonable recipient would conclude in such circumstances that the landlord intended to serve it on the person who was the tenant at the time, whomever he or she may be, irrespective of their clearly expressed (but mistaken) belief as to that person’s identity.
The Court of Appeal will be asked to decide whether the test applied in Mannai, as well as in a plethora of other cases, is capable not only of correcting mistakes in notices in cases where the wording used was wrong but it was clear that the sender’s intention was correct, or whether it can go further and (as both the first instance and first appeal courts held in this case) in effect ‘cure’ a notice in a case where not only was the wording wrong, but it was also clear that the sender held an incorrect belief as to the information that was required to be contained in the notice (in this case the identity of the tenant, but in other cases this could be the term date, statutory or contractual provision to be invoked, required period of notice, or something else).
A hearing date is awaited.
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