JUDGMENT
Telchadder (Appellant)
v
Wickland Holdings Limited (Respondent)
before
Lady Hale, Deputy President
Lord Wilson
Lord Reed
Lord Carnwath
Lord Toulson
JUDGMENT GIVEN ON
5 November 2014
Heard on 1 May 2014
Appellant Respondent
Martin We
stgate QC Richard Wilson QC
Lindsay Johnson Stephen Goodfellow
(Instructed by Shelter
Eastern Counties
)
(Instructed by Asher Prior
Bates
)
Page 2
LORD WILSON:
Issues
1. The appeal raises troublesome issues of construction of para 4 of Chapter 2
of Part 1 of Schedule 1 to the Mobile Homes Act 1983 (“the 1983 Act”). By
section 1, the 1983 Act applies to any agreement under which a person (“the
occupier”) is entitled to station a mobile home on land forming part of a
protected site and to occupy it as his only or main residence; and, by section
2, the terms set out in Part 1 of Schedule 1 to it shall, notwithstanding any
express term to the contrary, be implied in any such agreement between the
site owner and the occupier. Thus, by paragraph 1 of Chapter 2 of Part 1, a
term is, subject to an irrelevant exception, implied that the occupier’s right to
station his mobile home on the site shall subsist until the agreement is
determined under one of four subsequent paragraphs. Of the three (now
numbered 4, 5 and 5A) which relate to determination by the site owner, the
relevant paragraph is 4 (“the para 4 term”) which provides that:
“The owner shall be entitled to terminate the agreement
forthwith if, on the application of the owner, the appropriate
judicial body –
(a) is satisfied that the occupier has breached a term of the
agreement and, after service of a notice to remedy the
breach, has not complied with the notice within a
reasonable time; and
(b) considers it reasonable for the agreement to be
terminated.”
2. In the present case the occupier’s breach was an act of anti-social behaviour.
It raises the following issues:
(i) Can an occupier ‘remedy’ a breach of a covenant against
anti-social behaviour?
(ii) If not, what is the effect of the para 4 term?
(iii) Alternatively, if so,
Page 3
(a) how may he ‘comply’ with a notice to remedy and
(b) what is the effect of his obligation to do so ‘within
a reasonable time’?
3. Mr Telchadder, who is an occupier of a mobile home, appeals against an
order of the Court of Appeal (Mummery LJ, Black LJ and Dame Janet Smith)
dated 16 May 2012, [2012] EWCA Civ 635, by which it dismissed an appeal
against an order made by HHJ Moloney QC in the Southend County Court
on 17 August 2011. In proceedings brought by Wickland (Holdings) Ltd
(“Wickland”), which owns and operates a site for mobile homes at
Meadowview Park, Little Clacton, Essex, Judge Moloney held that, pursuant
to the para 4 term, Wickland was entitled to terminate its agreement with Mr
Telchadder dated 1 June 2006 and he proceeded to order that his licence to
station his mobile home at Plot No.160 at the park be terminated forthwith.
Pending determination of this appeal and, were it to fail, of a potential
application to suspend execution of the judge’s order under section 4 of the
Caravan Sites Act 1968 (“the 1968 Act”), Mr Telchadder continues to station
his mobile home at Plot No. 160 and to occupy it there.
Facts
4. The site at Meadowview Park is protected within the meaning of sections
5(1) of the 1983 Act and 1(2) of the 1968 Act. It is not a site for holiday
caravans: the mobile homes are for occupation throughout the year and are
fixed to the ground and, notwithstanding their description, they are not easily
removed. There are about 200 homes on the site. The close proximity in
which they are set places a premium on good-neighbourliness. About 30% of
the occupiers are aged at least 70 and children aged under 16 are not permitted
permanently to reside there. Wickland does not own the homes and it appears
that the occupiers themselves almost always own them. Occupiers who
merely rent the homes from third parties may well not be protected under the
1983 Act: see Clayden, The Law of Mobile Homes and Caravans, 2nd ed
(2003), p 87.
5. On 1 June 2006 Mr Telchadder entered into a written agreement with
Wickland for the right to station a mobile home, which he owns, on the park,
at Plot No.160, on payment of a pitch fee of £1516 p.a. subject to annual
review. The terms which the 1983 Act required to be implied into the
agreement, therefore including the para 4 term, were all set out expressly in
accordance with section 1(2)(d) of that Act. Mr Telchadder also expressly
undertook not to act in such a way as to annoy or disturb other occupiers of
Page 4
the park. Furthermore he undertook to comply with the Park Rules, which
were annexed to the agreement. By way of preface to the rules, Wickland
stated that their object was not to place unnecessary restrictions on residents
but to ensure that they might live peacefully in unspoilt surroundings and it
explained that some of them were necessary because residents lived in closer
proximity than house-dwellers. One rule forbade residents to carry offensive
weapons or any other objects likely to give offence while on the park.
Another rule repeated the prohibition against acts of annoyance to other
residents.
6. Judge Moloney found that Mr Telchadder, who is middle-aged, was
somewhat eccentric and suffered certain mental problems, had a mild
learning disability and exhibited autistic traits.
7. On 31 July 2006 Miss Puncher, a female resident of the park, complained to
Wickland that a man in camouflage clothing, with camouflage netting over
his head, had startled her by jumping out at her from behind a tree on the park
and by waving at her. The man was Mr Telchadder. Although Wickland did
not plead this incident in its Particulars of Claim, the judge held that he
thereby “breached a term of the agreement” for the purposes of the para 4
term, in that he broke his undertaking not to act so as to annoy or disturb other
occupiers of the park; and the successive appeals have proceeded on that
basis.
8. By letter dated 15 August 2006 to Mr Telchadder, Wickland wrote:
“… there is the … extremely serious matter of your behaviour
in that you are dressing in what appears to be military combat
clothing and obscuring your face with a mask while outside
your home in the Park area.
You are also making unwanted approaches to some Residents
while dressed in this manner causing alarm and distress.
Your apparel in itself is not a great problem but not really
desirable or in keeping with Meadowview Park, it is your
actions which are not acceptable in that:
A. ON NO ACCOUNT MUST YOU MASK OR OBSCURE
YOUR FACE WHEN YOU ARE IN ANY AREA OF THE
PARK OUTSIDE YOUR HOME
Page 5
B. ON NO ACCOUNT MUST YOU MAKE UNSOLICITED
APPROACHES OR ADVANCES TO OTHER RESIDENTS
ON MEADOWVIEW PARK
Should you ignore either A or B above you will leave us no
alternative but to apply to Colchester Court to have your
Agreement terminated and your home removed from
Meadowview Park.”
Judge Moloney held that the letter dated 15 August 2006 amounted to “a
notice to remedy the breach” which had occurred on 31 July 2006 for the
purposes of the para 4 term. The Court of Appeal agreed with him; and the
current appeal proceeds on that basis.
9. The central fact in this appeal is that Mr Telchadder committed no further
breach of the agreement until 15 July 2009, almost three years after the notice
dated 15 August 2006. It is true that in June 2007 and April 2008 Wickland
had written further letters to Mr Telchadder, prompted by further complaints
by residents of a relatively minor character, but the judge attached no
significance to them.
10. On 15 July 2009 Mr Telchadder (so the judge found) told Mr Carter, a
resident of the park, that two women had reported him for jumping out on
them in the woods and that he, Mr Telchadder, was going to kill them. When
Mr Carter told him to calm down, he said “I’ll fucking kill you as well – I’ve
got shotguns and air rifles”. Mr Carter called the police and Mr Telchadder
left. But he soon returned, swinging a stick and repeating that he was going
to kill him. The judge found, however, that Mr Telchadder never intended to
implement his threats to kill the women or Mr Carter and that the threats were
stupid and ill-advised.
11. By letter dated 12 August 2009 Wickland informed Mr Telchadder that,
because he had been harassing, threatening and terrorising other residents, it
proposed to apply to court for termination of his agreement. On 8 September
2009 it issued its claim for possession of Plot No.160. But the hearing of the
claim did not begin until 15 August 2011 and, in the intervening period of
almost two years, Mr Telchadder, so the judge found, perpetrated other acts
to which the judge had regard in considering, for the purpose of sub para (b)
of the para 4 term, whether it was “reasonable for the agreement to be
terminated”.
Page 6
12. The other acts were as follows:
(i) In October 2009 an anonymous note was delivered to Mr
Carter’s home. Mr Carter decorates his home with two Samurai
swords. The note asked Mr Carter to leave one of the swords
outside for the writer to collect. Later Mr Carter saw Mr
Telchadder lurking outside his house. Mr Telchadder (so the
judge found) had written the note.
(ii) In February 2010 Mr Telchadder harassed and intimidated two
elderly residents, one of whom was also disabled, as a result of
which, on his plea of guilty, the local magistrates made an order
restraining him from contacting them again.
(iii) In July 2010 Mr Telchadder behaved in a threatening manner
to a member of the family which owns and operates Wickland.
(iv) In March 2011 Mr Telchadder left empty shotgun cartridges
outside Mr Carter’s home.
(v) In April 2011 Mr Telchadder approached two elderly residents,
who asked him to go away and threatened to call the police. At
their request another resident joined them. Later Mr Telchadder
returned, confronted the other resident, used foul language
towards him and put his face up close to him. The other resident
pushed him away.
Legislation
13. About 85,000 households live in mobile homes on about 2000 sites governed
by the 1983 Act. The number of households is increasing: in 2002 there were
only about 65,000. As at Meadowview, a substantial proportion of the
residents of mobile homes (about 68% in 2002 and probably more today) are
elderly.
14. The law has been slow to bring security of tenure to occupiers of mobile
homes. First, limited, steps were taken in the 1968 Act. Section 2 provides
that, where a contract is terminable by notice, at least four weeks’ notice must
be given. Section 3(1) makes it a criminal offence for a site owner to recover
Page 7
possession of a plot otherwise than by court order. Section 4(1) empowers
the court to suspend execution of a possession order for up to a year at a time.
15. The Mobile Homes Act 1975 (“the 1975 Act”), by section 2(1), obliged a site
owner to enter into a written agreement with an occupier for a minimum of
five years. Section 3 required the agreement to include a number of terms
there specified, including provision for:
“(g) the right of the owner to determine the agreement for
breach of an undertaking, subject to the requirement, in the case
of a breach which is capable of being remedied, that he has
served written notice of the breach upon the occupier and has
given the occupier a reasonable opportunity of remedying it;”
16. Before proceeding to consider the 1983 Act, I should compare section 3(g)
of the 1975 Act with section 146(1) of the Law of Property Act 1925 (“the
1925 Act”), which replaced section 14(1) of the Conveyancing and Law of
Property Act 1881 (44 & 45 Vict c 41) and which restricts a lessor’s right of
forfeiture for breach of covenant on the part of the lessee. The right is
unenforceable
“unless and until the lessor serves on the lessee a notice –
(i) specifying the particular breach complained of; and
(ii) if the breach is capable of remedy, requiring the lessee
to remedy the breach; and
(iii) in any case, requiring the lessee to make compensation
in money for the breach;
and the lessee fails, within a reasonable time thereafter, to
remedy the breach, if it is capable of remedy, and to make
reasonable compensation in money… for the breach.”
In drafting section 3(g) of the 1975 Act the draftsman almost certainly had
section 146(1) of the 1925 Act in mind. Both subsections require service of
a notice of the breach which gives the lessee/occupier a reasonable
opportunity to remedy it. More importantly for present purposes, both qualify
Page 8
their provisions by reference to the case of a breach which is “capable of
remedy” or “capable of being remedied”. But the qualification operates at
different stages. Section 146(1) requires service of a notice in any event but,
if the breach is capable of remedy, the notice must require the lessee to
remedy it and he must be given a reasonable time in which to do so. Section
3(g), by contrast, did not require service of a notice at all unless the breach
was capable of being remedied.
17. For reasons irrelevant to this appeal, the limited security of tenure which, by
the 1975 Act, Parliament sought to give to occupiers of mobile homes proved
to be flawed. The 1983 Act largely replaced the 1975 Act and, in particular,
section 6(2) of the former (together with its related Schedule) repealed
section 3(g) of the latter.
18. The three terms implied by paragraphs 4, 5 and 5A of Chapter 2 of Part 1 of
Schedule 1 to the 1983 Act, and which represent the owner’s only means of
determining an agreement to which the Act applies, take an unusual form.
They provide that the owner’s very entitlement to determine the agreement
arises only once a court (or in some cases a tribunal) has been satisfied of one
of the three facts respectively there specified and has concluded that it is
reasonable for the agreement to be determined. If, at the end of the
proceedings, his entitlement thus arises, the owner can, as the history of the
present case demonstrates, there and then exercise his entitlement and obtain
an order that the licence be duly terminated.
19. Thus I arrive back at the para 4 term, set out in 1 above. The difficulties
surround the requirement in sub para (a), which it is convenient to set out
again, namely that the court should be
“… satisfied that the occupier has breached a term of the
agreement and, after service of a notice to remedy the breach,
has not complied with the notice within a reasonable time;”
20. Omitted from sub para (a) of the para 4 term is any reference to “a breach
which is capable of being remedied”, such as was included in section 3(g) of
the 1975 Act and as is, with minor terminological variation, included in
section 146(1) of the 1925 Act. Debate surrounds the omission. We should
surely assume that the draftsman of sub para (a) had in mind the words of the
provision which it was replacing and we should strive to attach significance
to the omission. But there is nothing in the para 4 term, even when considered
in the context of the other terms and of the apparent purpose of the entire
1983 Act, which casts any light on the reasons for the omission. In the end
Page 9
the question is whether to seek to attribute significance to the omission by
concluding that the twin requirements in sub para (a) to serve notice and to
afford to the occupier a reasonable time within which to comply with it apply
even to a breach which is incapable of remedy. In my opinion the question
has only to be asked for it to be rejected. It would be nonsensical to require
service of a notice to remedy a breach which is incapable of remedy.
21. A similar approach was adopted by Lord Reid in L Schuler AG v Wickman
Machine Tool Sales Ltd [1974] AC 235. The basis of the decision of the
House of Lords was that, in context, the word “condition” in the contract
between the parties did not mean a term, breach of which afforded to the other
party an immediate and unqualified right to rescind. But, in his reasoning to
that end, Lord Reid adverted to clause 11(a)(i) of the contract which entitled
either party to determine the agreement if “the other shall have committed a
material breach of its obligations hereunder and shall have failed to remedy
the same within 60 days of being required in writing so to do”. In a passage
with which Lord Simon of Glaisdale agreed, Lord Reid said, at p 249, that it
appeared to him that the clause was intended to apply to all material breaches
of the agreement which were capable of being remedied. So, although it was
contractual rather than statutory, the provision, as here, referred to a breach,
to a written requirement to remedy it and to a failure to do so; and,
notwithstanding the absence of any express limitation to breaches capable of
remedy, it was construed to be so limited.
22. I conclude that the twin requirements in sub para (a) of the para 4 term refer
only to a breach capable of remedy. Perhaps the draftsman of sub para (a)
considered that the reference in section 3(g) of the 1975 Act to a breach
capable of remedy was unnecessary. Alternatively his omission of it might
even have been a rare, inadvertent error.
Breach Capable of Remedy
23. The next challenge is to identify the nature of a breach which, in the context
of the 1983 Act, is capable of remedy. The only jurisprudence which affords
assistance relates to the interpretation of the clause in section 146(1) of the
1925 Act that “if the breach is capable of remedy…”. I see no danger in
borrowing from it.
24. The breach by a lessee (or a licensee) most obviously capable of remedy is a
breach of a positive obligation. Under the agreement Mr Telchadder had, for
example, obligations to pay the pitch fee monthly in advance and to keep his
mobile home insured and in a sound state of repair. Any breach of these
Page 10
obligations would ordinarily have been capable of remedy – by belatedly
paying the fee (together with interest) and by belatedly insuring or repairing
the home (together with damages for any loss caused by his delay in doing
so). In Expert Clothing Service and Sales Ltd v Hillgate House Ltd [1986] Ch
340, at p 355, Slade LJ, with whom the other members of the Court of Appeal
agreed, accepted that the breach of a positive covenant would ordinarily be
capable of remedy. Ordinarily… but not always. Slade LJ noted that, for
instance, the burning down of the premises during a period of the tenant’s
failure to insure would be irremediable. So, no doubt, would be their collapse
by reason of a failure to repair.
25. But what about a breach of a negative obligation?
26. In Rugby School (Governors) v Tannahill [1935] I QB 87 the school owned
a property in Great Ormond Street which, in breach of her covenant not to do
so, its lessee allowed to be used as a brothel. The Court of Appeal rejected
the trial judge’s conclusion that breach of a negative covenant was never
capable of remedy. But, although the lessee had closed the brothel, it
proceeded to hold that the stigma attaching to the property and the resultant
loss of value rendered the breach irremediable (Greer LJ, p 91) or, at least,
irremediable within a reasonable time (Maugham LJ, pp 93-94).
27. Notwithstanding an early grumble of discontent (see Hoffmann v Fineberg)
[1949] Ch 245), the law has proceeded from the foot of the observations of
the Court of Appeal in the Rugby School case that some breaches of negative
covenants are remediable within the meaning of section 146(1) of the 1925
Act. As O’Connor LJ said in the Expert Clothing case, at p 362:
“To stop doing what is forbidden by a negative covenant may
or may not remedy the breach even if accompanied by
compensation in money. Thus to remove the window boxes and
pay for the repair of any damage done will remedy the breach,
but to stop using the house as a brothel will not, because the
taint lingers on and will not dissipate within a reasonable time.”
28. In Savva v Hussein (1996) 73 P and CR 150 the breaches by a lessee of
commercial premises were of negative covenants, namely not to change the
exterior sign and not to alter the premises without consent. The Court of
Appeal held that the breaches were remediable. Staughton LJ said at p 154:
Page 11
“In my judgment…the question is: whether the remedy referred
to is the process of restoring the situation to what it would have
been if the covenant had never been broken, or whether it is
sufficient that the mischief resulting from a breach of the
covenant can be removed. When something has been done
without consent, it is not possible to restore the matter wholly
to the situation which it was in before the breach. The moving
finger writes and cannot be recalled. That is not to my mind
what is meant by a remedy, it is a remedy if the mischief caused
by the breach can be removed. In the case of a covenant not to
make alterations without consent or not to display signs without
consent, if there is a breach of that, the mischief can be removed
by removing the signs or restoring the property to the state it
was in before the alterations.”
Aldous LJ, at p 157, cited the conclusion of Slade LJ in the Expert Clothing
case that the test was whether the harm resulting from the breach could
effectively be remedied and noted that the breach in that case was of a
positive covenant. He observed:
“There is in my view nothing in the statute, nor in logic, which
requires different considerations between a positive and
negative covenant, although it may be right to differentiate
between particular covenants. The test is one of effect.”
29. In Akici v LR Butlin Ltd [2005] EWCA Civ 1296, [2006] 1 WLR 201, the
breach by a lessee of commercial premises was also of a negative covenant,
namely not to share possession of the premises. The Court of Appeal held
that the lessor’s notice failed to comply with section 146(1) of the 1925 Act
in that it specified only other alleged breaches which it had failed to establish.
But the court went on to observe that the breach was remediable and indeed
had been remedied by a discontinuance of the sharing of possession.
Neuberger LJ, with whom Mummery LJ agreed, suggested at para 64 that the
proper approach to the remediability of a breach should be practical rather
than technical; and he conjectured at para 65 that the great majority of
breaches of covenant should be capable of remedy.
30. The breaches of negative covenants in the Rugby School, Savva and Akici
cases had a continuing effect. They precipitated a state of affairs. The brothel
stayed open until it was closed – and even then the continuing stigma
precluded remediability. The sign stayed up until it was taken down; the
alterations remained until they were removed. Possession remained shared
until the sharing was discontinued. Mr Telchadder entered into negative
Page 12
covenants of analogous effect. He undertook, for example, not to erect a shed
on the plot licensed to him. Had he done so, the breach would surely have
been remediable by his dismantling it and paying any necessary
compensation. But the nature of the covenant which he broke and of his
breach of it was of a different order. The covenant was not to act so as to
annoy or disturb other occupiers and the breach was to jump out at Miss
Puncher while he was dressed in camouflage and thereby to startle her.
Nothing could thereafter have been done to “unstartle” Miss Puncher. That is
why the word does not exist. The incident had ended. It must have been
highly unpleasant for her but there is unsurprisingly no evidence that she
suffered other than transient distress. So its effects had ended too. Was that
breach remediable and, if so, how?
31. In my view the answer is to be found by a practical inquiry whether and if so
how (to adapt the words of Staughton LJ in the Savva case) the mischief
resulting from Mr Telchadder’s breach could be redressed. In relation to a
breach of a covenant against anti-social behaviour, there is no escape from
the conclusion that the inquiry requires a value judgement on the part, first,
of the covenantee and, then, of the court in determining whether the
requirements of section 146(1) of the 1925 Act, or, as the case may be, of the
para 4 term have been satisfied. Had Mr Telchadder not only jumped out at
Miss Puncher but, for example, deliberately perpetrated a significant injury
upon her, Wickland might well have been entitled to conclude that the breach
was irremediable; that there was therefore no need for it to serve a notice to
remedy; that it should apply directly to the court under the para 4 term; but
that, as a prelude to doing so, it should notify Mr Telchadder of its proposed
application and of its reasons for having concluded that the breach was
irremediable and that therefore there was no need for it to serve a notice to
remedy. Obviously there would have been a risk that the circuit judge would
either have disagreed with Wickland about the irremediability of the breach
or have declined to consider it reasonable for the agreement to be terminated.
Nevertheless, by reference only to the simple facts postulated, Wickland
might have contemplated that risk with equanimity.
32. But Mr Telchadder’s breach was in no way of that gravity. To an inquiry
whether, and if so how, the mischief resulting from it could be redressed, the
practical response is to say: yes, of course it can be redressed by his
committing no further breach of his covenant against anti-social behaviour
for a reasonable time. That was in effect Wickland’s own reaction to the
breach when it wrote the letter dated 15 August 2006, namely that Mr
Telchadder should remedy it by not perpetrating any further breach. I need to
recognise, however, that the para 4 term refers to a failure to comply “within”
a reasonable time. That preposition is apt when the necessary remedy is to do
something – say belatedly to pay the pitch fee required by a positive
Page 13
obligation or to remove an alteration effected in breach of a negative
obligation. It is inapt when the necessary remedy is not to do something: it
makes no sense to require Mr Telchadder not to commit a further breach
“within” a reasonable time. In this context sense can be made of the para 4
term only by reading the word “within” as if it meant “for”.
A Reasonable Time
33. In the Court of Appeal Mummery LJ, with whom the other members of the
court agreed, said at para 52:
“[Counsel for Mr Telchadder] objected that the notice could
not possibly have been intended by Parliament to have
perpetual effect. As there had been compliance for a reasonable
time following the 2006 notice, it was necessary, he asserted,
to serve another notice before commencing proceedings. I do
not agree. Paragraph 4 does not set any end-date for the
expiration of a notice. There is no reason why the notice served
in this case should not have continuing effect for the whole
period of [Mr Telchadder’s] occupation of the mobile home on
Plot Number 160. All that the notice was seeking to achieve
was future compliance with continuing obligations in
circumstances where [a breach] had already occurred.”
34. It is, indeed, tempting to reflect that Mr Telchadder had committed a breach
of the agreement; that it was hardly oppressive to require him to abide by it
for as long as it was to subsist; and that, even were he to commit a further
breach, the safety net of sub para (b) of the para 4 term remained in place to
protect him unless it was reasonable for the agreement to be terminated. But,
with respect to a distinguished judge, I consider that Mummery LJ has failed
to afford proper value to sub para (a) of the para 4 term. If, which I doubt, it
is helpful to speak of the “expiration” of the notice, it occurs under sub para
(a) once the occupier has complied with it within a reasonable time. It is
wrong to say that para 4 sets no end-date for its expiration. To equate the
phrase “within a reasonable time” with “throughout the subsistence of the
agreement” is, in this context, to deprive it of all significance. It raises the
prospect of an order for termination based primarily upon a breach committed
perhaps 20 or 30 years earlier, provided that (which seems doubtful) the site
owner is then in a position to prove it. And it places the occupier for whom,
like Mr Telchadder, the requisite remedy happens to be not to do something
in an anomalously different situation from that of the occupier for whom the
requisite remedy happens to be to do something. The latter can do it promptly,
Page 14
thereby comply with the notice and rid himself of its overhanging effects
under sub para (a).
35. Wickland protests that to reject the Court of Appeal’s conclusion that the
requirement to comply with the notice continues indefinitely is to permit the
anti-social occupier to play cat and mouse with the site owner to the distress
of the park community. The spectre is that the occupier commits a breach and
is served with a notice; that he commits no further breach for a reasonable
time and thereby complies with the notice; that thereupon he commits a
further breach; that the cycle begins again; and that his licence cannot be
terminated. I trust that the spectre is indeed just that – unreal; but I am
confident that, all other things being equal, a reasonable time for compliance
with a notice to remedy a second breach will be longer than for compliance
with a notice to remedy a first.
Conclusion
36. It remains only to consider whether in all the circumstances the period of
almost three years during which Mr Telchadder complied with the notice
dated 15 August 2006 amounted to a reasonable time for him to comply with
it. My view is that it clearly did so; and it is inappropriate to speculate about
whether some shorter period would also have done so. In retrospect it is
obvious that, following the breach dated 15 July 2009, Wickland should have
served a further notice to remedy; or, in the light of its seriousness, have
raised an allegation that it was irremediable, upon which, no doubt, there
would have been lively argument. Relevant to that issue would have been a
finding (which the judge did not make) as to whether, although Mr
Telchadder never intended to implement his threats to kill, Mr Carter took
them seriously. It is too late to introduce into these proceedings the issue of
whether that breach was irremediable. But, in the light of the surprising
absence, until now, of any analysis of the proper application of the para 4
term to a breach of a covenant against anti-social behaviour, Wickland can
hardly be criticised for having proceeded as it did.
37. I would allow Mr Telchadder’s appeal and would determine the issues
identified in para 2 above as follows:
(i) An occupier can in principle ‘remedy’ a breach of a covenant
against anti-social behaviour but some such breaches are so
serious as to be irremediable.
Page 15
(ii) Not applicable
(iii) (a) The occupier ‘complies’ with a notice to remedy a
remediable breach of such a covenant by not committing any
further breach of it within a reasonable time.
(b) The effect of his obligation not to do so within a reasonable
time is that he must not do so for a reasonable time.
38. Since drafting this judgment, I have read, in draft, the judgments of Lady
Hale, of Lord Carnwath (with which Lord Reed agrees) and of Lord Toulson.
I suggest that the effect of the four judgments is as follows:
(a) I, Lady Hale and Lord Toulson conclude that, in the case of an
irremediable breach, the para 4 term does not require service of
a notice to remedy it. But our conclusion in this respect is not
central to this decision because the breach dated 31 July 2006
was not irremediable and in any event a notice to remedy it was
duly served.
(b) All members of the court conclude that Mr Telchadder’s appeal
should be allowed but the reasons given by Lord Carnwath and
Lord Reed for their subscription to that conclusion represent a
minority view. Their reasons are that, in the case of a
remediable breach of a covenant against anti-social behaviour,
compliance with the notice to remedy must continue
indefinitely (Lord Carnwath, para 91 below) but that there
needs to be a causal or temporal link between the notice to
remedy and the subsequent breach (para 92 below), which was
absent in the present case (para 96 below).
(c) By contrast, the reasons of the majority are, in essence, that a
breach of such a covenant is remediable if the mischief resulting
from it can be redressed; and that Mr Telchadder redressed the
mischief resulting from the breach dated 31 July 2006, and
thereby complied with the notice to remedy, by not committing
a further breach prior to 15 July 2009.
Page 16
LADY HALE
39. The issue in this case is simple to state but difficult to decide: is it open to the
owner of a mobile home park to launch proceedings to evict the occupier of
a plot, on the basis of a notice to remedy a breach of the term of his licence
to occupy which prohibited anti-social behaviour, some years after that notice
was served? The answer is important for the large and growing number of
people who live in mobile homes and to the owners of the sites where their
homes are located. It is important that the occupiers, many of whom are
elderly or vulnerable, are protected, not only from anti-social behaviour by
their neighbours, but also from over-hasty eviction from their homes.
40. The site owner is only able to terminate his agreement with the occupier in
the circumstances laid down in Part 1 of Schedule 1 to the Mobile Homes
Act 1983. The relevant one for our purposes is para 4:
“The owner shall be entitled to terminate the agreement
forthwith if, on the application of the owner, the appropriate
judicial body [in this case the local county court] –
(a) is satisfied that the occupier has breached a term of the
agreement and, after service of a notice to remedy the breach,
has not complied with the notice within a reasonable time; and
(b) considers it reasonable for the agreement to be terminated.”
41. The problem lies with the interpretation of paragraph 4(a). This has three
elements:
(i) that the occupier has breached a term of the agreement;
(ii) that the owner has served a notice to remedy that breach; and
(iii) that the occupier has not complied with the notice within a
reasonable time.
42. It is easy to see how this works in the case of a breach of a positive obligation
which can readily be put right. If the mobile home has not been painted when
it should have been painted, the owner can serve a notice telling the occupier
to paint it, and if the occupier does not paint it within a reasonable time, then
para 4(a) is satisfied. If the occupier has not paid his site fees on time, the
Page 17
owner can serve a notice telling him to pay, and if he does not do so (with
interest) within a reasonable time, then para 4(a) is satisfied. Incidentally, it
is for the court, not the owner, to decide what is a reasonable time, but there
is nothing to prevent the owner telling the occupier what he thinks will be a
reasonable time, after which he may go to court.
43. It is not so easy to see how this works (a) in the case of a breach which cannot
be put right; and (b) in the case of a breach of a negative obligation which
can be put right. Does the owner have to serve a notice at all in case (a)? What
is the effect of a notice in case (b)?
44. On the first question, I agree with Lord Wilson (para 20) that, strictly
speaking, the site owner does not have to serve a notice in respect of a breach
which cannot be put right. I do not see this as writing words into the Act. A
“notice to remedy” necessarily implies that a remedy is possible. The site
owner is telling the occupier to remedy the breach and how to do it. How can
he do that if no remedy is possible? Why indeed, in such a rare and egregious
case, should he have to wait for a reasonable time to elapse before bringing
proceedings?
45. If a notice to remedy were always required, then it seems to me that a failure
to remedy within a reasonable time would also be required. I have difficulty
in seeing how the first can be required, even in the case of an irremediable
breach, without the second. It follows that the owner would have to wait for
a reasonable time before bringing proceedings even in respect of an
irremediable breach. I do not myself see any room for the common law
doctrine of a repudiatory breach of contract to apply (the first possibility aired
by Lord Toulson at para 57). The site owner is not entitled to bring the
agreement to an end otherwise than in accordance with the provisions of
Schedule 1: para 1 provides that (subject to an irrelevant exception) “the right
to station the mobile home on land forming part of the protected site shall
subsist until the agreement is determined under paras 3, 4, 5 or 6 below”.
46. In practice, however, given the view expressed by the Court of Appeal in
Akici v LR Butlin Ltd [2005] EWCA Civ 1296, [2006] 1 WLR 201 that the
great majority of breaches should be capable of remedy, it would be unwise
for a site owner to bring proceedings without giving the occupier some sort
of either/or notice: “You have done [this] in breach of [this] term of your
agreement. I do not consider that this breach is capable of remedy. However,
in case the court takes a different view, I hereby give you notice that you must
remedy the breach within a reasonable time of this notice. If you do not, I
may bring proceedings against you.”
Page 18
47. The views of the court on this issue are, strictly speaking, obiter dicta, as we
are all agreed that the breach in respect of which the notice was served in this
case, the incident on 31 July 2006 (see para 7) which prompted the letter of
15 August 2006 (see para 8), could be put right.
48. This brings me to the second question. What is the effect of a notice in the
case of a breach of a negative obligation which can nevertheless be put right?
Lord Wilson has helpfully pointed out (para 28) that it is easy to see how a
breach of some negative obligations can be put right: putting up a prohibited
shed can be put right by taking the shed down; allowing children under 16 to
live in the mobile home can be put right by turning them out. It is not so easy
to see how breach of a covenant not to annoy or disturb other residents can
be put right: but I agree with Lord Wilson (para 30) and Lord Toulson (para
64) that an incident such as that on 31 July 2006 can be put right by refraining
from such behaviour for a reasonable time, time enough for the fears and
anxieties it caused to calm down. I also agree with Lord Toulson (para 63)
that, while the occupier remains under a contractual obligation not to annoy
or disturb other residents throughout the term of the agreement, the effect of
a notice to remedy lapses once a reasonable time has elapsed without further
incident.
49. This is the majority view and constitutes the ratio decidendi of this case.
Whatever the reasonable time in question, it must have elapsed before the
incident on 15 July 2009 which prompted these proceedings. I would only
add that the minority view, that there must be some causal or temporal link
between the notice to remedy and the acts which justify the court’s
intervention (para 92 of Lord Carnwath’s judgment), is likely to lead to the
same result in most cases.
50. The different analyses of para 4(a) lead to different conclusions as to how the
site owners should have dealt with the much more serious incident on 15 July
2009. There would, as Lord Wilson points out (para 36), have been lively
argument about whether the breach was remediable. If it was not, then on the
majority view, no notice was required and the site owners could have begun
proceedings immediately, although they would have been wise to serve the
sort of notice he suggests (at para 31). It appears that, in the minority view,
notice would have been required. But it also appears to be their view that the
site owners would not have had to wait for a reasonable time before launching
proceedings (note that the court has to make its findings before the site owner
is entitled to terminate forthwith). For the reasons given earlier, I have
difficulty in accepting that analysis. That difficulty reinforces my view that
Lord Wilson’s analysis is the correct one.
Page 19
LORD TOULSON
51. The interpretation of para 4(a) of the Mobile Homes Act 1983 raises the
question what is required to remedy a breach. A linked question is, ‘what is
the correct procedure if a breach cannot be remedied within a reasonable
time?’
52. I agree with Lord Wilson that the answer to the first question calls for a
practical approach, that is, whether and how the mischief caused by the
breach can be redressed. The context is a relationship between an occupier of
land and the owner of the land, who also has responsibilities towards others
living in close proximity including the elderly and vulnerable. In a case of
anti-social behaviour by an occupier towards a neighbour, much must depend
on the nature of the conduct in determining whether and how the mischievous
effect of a particular breach may be remediable.
53. A minor incident may not be expected to cause lasting harm to the peace of
mind of other residents. In some cases an apology may be an appropriate
means of redress. But human nature being what it is, there may be cases (for
example, involving serious violence or threats of violence) where the conduct
is such as to cause physical harm or feelings of fear and anxiety which the
injured person could not be expected to get over within a reasonable time
period, regardless of the other person’s subsequent behaviour. There is no
reason why neighbours, especially if elderly and vulnerable, should be
expected to live for months (let alone years) in a state of fear and anxiety.
54. The second question presents a difficulty because of the wording of the term
implied by para 4, which entitles the owner to terminate the agreement if the
appropriate judicial body
“(a) is satisfied that the occupier has breached a term of the
agreement and, after service of a notice to remedy the breach,
has not complied with the notice within a reasonable time; and
(b) considers it reasonable for the agreement to be terminated.”
55. Lord Wilson observes that it would be nonsensical to require service of a
notice to remedy a breach which is incapable of remedy. Therefore he says
that the requirement to serve a notice to remedy should be read by necessary
implication as limited to a breach which is capable of remedy (within a
reasonable time).
Page 20
56. Lord Carnwath observes that para 4 replaced (with amendments) an
analogous provision in section 3 of the Mobile Homes Act 1975 which
expressly limited the requirement for service of a notice to “a breach which
is capable of remedy”. He says that the omission of similar words from para
4 must have been deliberate and that the court should not read into it words
which the drafter has omitted. Lord Carnwath concludes that a notice to
remedy must be served in all cases. He also says that in the case of a negative
user condition, compliance with a notice to remedy will require ceasing the
use indefinitely. There is no shorter “reasonable” period for compliance with
obligations which the occupier is already contractually bound to observe for
the full term of the agreement.
57. It is not difficult to imagine cases where the irreparable effects of an
occupier’s conduct may be such that the only reasonable course is for the
owner to be able to terminate the contract forthwith. Four possible
approaches have been canvassed in the course of argument. First, some
egregious misconduct might arguably be treated as amounting to a
repudiation of the contract, and so entitling the owner to treat the contract as
terminated without going through the statutory procedure of Schedule 1; but
even if that were so, it would be unlikely to cover every instance of an
irremediable breach. As a possible solution to the problem of an irremediable
breach, it would therefore be incomplete.
58. No such limitation applies on Lord Wilson’s approach, which is that a notice
to remedy is not required in the case of an irremediable breach as a matter of
construction of the Schedule.
59. A third possible solution is that the owner must serve a “notice to remedy” as
a matter of form, but that the notice may adopt the Hill & Redman formula,
quoted by Lord Carnwath at para 79, of stating the occupier must remedy the
breach if he can; and that the notice may also state that the owner does not
believe it to be capable of remedy and will therefore be issuing proceedings.
60. A fourth approach is that a notice to remedy is required in all cases and that
even in the case of an irremediable breach the occupier must be allowed a
period of time amounting to a reasonable time to comply with the notice
before possession proceedings are begun. I would reject that approach. If the
consequences of the breach are such that they are impossible to remedy, I
cannot see how a reasonable time to comply with the notice could be assessed
by the owner or the court. They would face the conundrum “what is a
reasonable time to perform the impossible?” The question defies an answer.
Any period chosen would be arbitrary and purposeless. It would serve simply
Page 21
to delay matters in circumstances which may sometimes be dangerous or
intolerable for other occupiers.
61. Both Lord Wilson’s and Lord Carnwath’s favoured solutions involve some
straining of language. The former involves reading words of limitation into
the provision about service of a notice to remedy. The latter involves reading
the words “after service of a notice to remedy the breach, has not complied
with the notice within a reasonable time” as satisfied in a case where there
was nothing which the occupier could have done to comply with it, and so
was not given any time to do so.
62. In practical terms it makes no difference whether the notice requirement in
para 4 (a) is construed as limited to breaches which are capable of remedy
(within a reasonable time) or applies in all cases but may be satisfied in the
case of an irremediable breach in the way just considered. In that sense the
difficulty which arises from the unsatisfactory wording of the statute does not
matter in terms of the result, but I prefer the approach of Lord Wilson. It
makes no sense to require a person to remedy something which is incapable
of remedy, and, but for the legislative history, I would have little difficulty in
reading the requirement of service of a notice to remedy as confined to a
remediable breach, just as the House of Lords in L Schuler AG v Wickman
Machine Tools Ltd [1974] AC 235 construed a contractual requirement of a
notice to remedy in a similar fashion. The legislative history to which Lord
Carnwath has referred makes it all the more of a mystery why para 4(a) omits
any words of qualification, but it is a matter of judgment what weight should
be given to the legislative history in a given case. Sometimes it may throw
considerable light on the proper interpretation of a later statute; in other cases
the court may be left uncertain about the reason for a change of wording, in
which event a comparative study will not help the court in its task of giving
to the current statute the meaning which appears to fit best with its purpose.
In this case the statutory scheme of serving a notice to remedy a breach and
allowing the occupier a reasonable time in which to do so serves an obvious
purpose in the case of a remediable breach, but would serve no
comprehensible purpose if the breach is irremediable and would therefore be
a vain requirement.
63. The question which I have been discussing arose in argument but it is strictly
obiter. The issue at the heart of the appeal arises from the proposition that a
notice to remedy a breach of a negative user condition requires “indefinite
compliance”. Contractual conditions have effect throughout the life of the
contract. A notice to remedy a breach which has occurred is rather different,
and I do not share the view that it is continuing and indefinite in the same
way.
Page 22
64. I come back to my starting point that whether a breach can be remedied for
the purposes of the para 4 procedure depends on whether the mischief caused
by that breach can be redressed within a reasonable time. A notice to remedy
gives the occupier the opportunity to do so, and should not be regarded as a
gateway throughout the remainder of the contract for termination in the event
of a subsequent breach. That does not mean that in the case of a serial
offender every breach must be looked at without reference to past history.
Repeated misconduct may lead to the proper conclusion that the cumulative
mischief caused by him has passed the point of being remediable and that the
owner should be entitled to terminate the contract forthwith. Although I have
expressed myself differently from Lord Wilson, in practical terms I suspect
that the result is likely to be the same.
65. In the present case the owner did not regard the offensive behaviour towards
Miss Puncher in July 2006 as causing irremediable harm. The incident in July
2009, which the judge described as very serious, might have been seen as
sufficiently harmful to justify immediate termination of the agreement, with
or without reference to the past background, but the case was not argued
before us on that basis. Like Lord Wilson, I do not consider that the
possession order can be justified on the platform of the notice which had been
served on the appellant 3 years earlier. So I agree that the appeal must be
allowed.
66. I agree with Lord Wilson’s summary of the effect of the judgments.
LORD CARNWATH (with whom Lord Reed agrees):
67. I gratefully adopt Lord Wilson’s exposition of the relevant facts and the legal
background. In this judgment I will address:
i) The structure and effect of the para 4 term;
ii) The particular problem of negative user conditions and repeated
breaches;
iii) The resolution of this appeal.
Page 23
The structure of paragraph 4
A long pedigree
68. Paragraph 4 is best understood, in my view, as the draftsman’s attempt to
reproduce the essential features of the section 146 regime as it had evolved
through the authorities, but in simpler and more modern form, appropriate
for the relatively uncomplicated legal world of the mobile home. So seen it
is not in my view necessary to depart materially from its ordinary wording.
In this respect I respectfully disagree with Lord Wilson’s approach to
construction (para 20) for reasons I shall explain in this section.
69. As he shows (para 16), provisions restricting the right of an owner to
terminate a lease or licence for breach of its terms have a pedigree dating
from the 19th century. Relevant in the present context are the following:
i) Section 146(1) of the Law of Property Act 1925 (replacing section 14
of the Conveyancing and Law of Property Act 1881) provided that a
right of forfeiture under a lease for breach of covenant –
“shall be unenforceable, by action or otherwise, unless
and until the lessor serves on the lessee a notice –
(a) specifying the particular breach complained of; and
(b) if the breach is capable of remedy, requiring the
lessee to remedy the breach; and
(c) in any case, requiring the lessee to make
compensation in money for the breach;
and the lessee fails, within a reasonable time thereafter,
to remedy the breach, if it is capable of remedy, and to
make reasonable compensation in money, to the
satisfaction of the lessor, for the breach.”
Even where these requirements were satisfied, the landlord faced a
further hurdle in the right of the tenant (under s 146(2)) to apply to the
Page 24
court for relief from forfeiture, in relation to which the court had a
wide discretion to –
“grant or refuse relief, as the court, having regard to the
proceedings and conduct of the parties under the
foregoing provisions of this section, and to all the other
circumstances, thinks fit”.
ii) The Mobile Homes Act 1975 section 3 (no longer in force) provided
that the written agreement for stationing a mobile home to be occupied
as a residence (required by s 1) was to contain specified “terms and
conditions”, including:
“(g) the right of the owner to determine the agreement
for breach of an undertaking, subject to the requirement,
in the case of a breach which is capable of being
remedied, that he has served written notice of the breach
upon the occupier and has given the occupier a
reasonable opportunity of remedying it;”
iii) Finally, para 4 itself: the Mobile Homes Act 1983 Schedule 1,
provided for certain terms or conditions to be “implied by [the] Act”,
including :
“4. The owner shall be entitled to terminate the
agreement forthwith if, on the application of the owner,
the appropriate judicial body –
(a) is satisfied that the occupier has breached a term of
the agreement and, after service of a notice to remedy
the breach, has not complied with the notice within a
reasonable time; and
(b) considers it reasonable for the agreement to be
terminated.”
Reference was also made before the Court of Appeal (paras 34, 40) to
analogous provisions under the Housing Acts 1985 and 1988, but it was noted
that the contents of the notices are generally prescribed by regulations. They
were not relied on by either party in this court.
Page 25
70. Common to each of these provisions is the concept of giving notice of the
breach to the tenant or licensee and allowing him a reasonable time (or
opportunity) to remedy it.
The 1983 Act
71. In the present case we have to look at the issue of construction through the
eyes of the draftsman of the 1983 Act. In doing so it is clearly reasonable to
assume that he would have had in mind the approach adopted in authorities
under section 146 and its predecessor.
72. Lord Wilson has referred to Rugby School v Tannahill [1935] 1 QB 87, which
in 1983 was still the leading authority on the subject. (It was so regarded by
the Court of Appeal in Expert Clothing Service in 1985.) The judge,
MacKinnon J [1934] 1 KB 695, had taken the apparently logical view that a
negative covenant was in principle incapable of remedy. The Court of Appeal
declined to endorse such an absolute rule. Greer LJ said:
“I think perhaps [the judge] went further than was really
necessary for the decision of this case in holding that a breach
of any negative covenant —the doing of that which is
forbidden—can never be capable of remedy. It is unnecessary
to decide the point on this appeal; but in some cases where the
immediate ceasing of that which is complained of, together
with an undertaking against any further breach, it might be said
that the breach was capable of remedy.” (p 90)
However, the court accepted the landlord’s argument so far as directed to a
case where the nature of the particular breach (use as a brothel in that case)
would have an effect on value even after the use had ceased.
73. Maugham LJ referred in his concurring judgment ([1935] 1 KB 87 at pp 92-
93) to authorities dating from 1893 (including the House of Lords case of Fox
v Jolly [1916] 1 AC 1), which showed that the section –
“has always been construed, having regard to the common
sense of the matter, that the tenant is to be given reasonable
information as to what he is required to do, and he is given the
right to apply to the Court for relief”.
Page 26
He cited, as an example of this “common-sense interpretation”, the early
decision (Lock v Pearce [1893] 2 Ch 271) that “although its language pointed
in the opposite direction” the section did not require the notice to claim
compensation which the lessor did not want.
74. The draftsmen of what became the relatively short-lived 1975 Act borrowed
from section 146 the distinction between remediable and irremediable
breaches, but none of its other significant features. There was no general
requirement for a notice specifying the breach, and no general discretion for
the court to oversee the process of enforcement.
75. The structure of the 1983 provision was quite different from the 1975 model,
but much closer to that of section 146 as it had evolved. The key features
were the service of a notice to remedy the breach (not in terms limited to
breaches capable of remedy), non-compliance with the notice after a
reasonable time, and a judgment of the court as to the merits
(“reasonableness”) of termination. As under section 146, the reference to
compliance “within a reasonable time” was not to something needing to be
specified in the notice itself, but rather a matter to be judged retrospectively
by the court in considering the merits of enforcement.
76. It is hardly surprising that the draftsman of a modern Act for a different
subject-matter did not find it necessary or desirable to replicate all the 19th
Century language. For example, the phrase “considers it reasonable” was an
entirely adequate substitute for the convoluted language used to express the
comparably broad discretion conferred on the court by section 146(2). The
more controversial feature of the 1983 model was the omission of the
reference to breaches “capable of remedy”. I shall return to that after
considering the post-1983 case-law. (For completeness I should note that new
“parliamentary materials” on the background to this provision, submitted by
the respondents following the hearing, were at best inconclusive and for the
most part clearly inadmissible under ordinary principles of statutory
construction.)
Post-1983 developments
77. As Lord Wilson has shown, the courts have continued to grapple with these
issues since 1983, but in context of breaches of covenant quite different from
the present. The more significant include Expert Clothing (1986) (breach of
positive covenant to reconstruct), Savva (1996) (covenant against alteration
of premises without consent), and Akici (2005) (covenant against sharing
possession of commercial premises). As the judgments in the last case
Page 27
indicate, the approach of the courts is “practical rather than technical” ([2006]
1 WLR 201, para 64), and most breaches are now regarded as capable of
remedy. As regards negative covenants relating to user, it appears to be
accepted that breaches can be remedied by ceasing the unlawful use
concerned, save where the breach causes the premises to be “stigmatised”
(Hill & Redman’s Law of Landlord and Tenant para [4685]).
78. The result of the narrowing of categories of breach regarded as incapable of
remedy is conveniently summarised in Woodfall: Landlord and Tenant para
17.132.1, after referring to the “stigma” cases:
“Until recently it was assumed that breach of a covenant
against carrying out alterations without consent was also
irremediable. However, the position appears to have changed.
The test is now one of fact and degree as to whether in reality
the mischief can be remedied. Similarly, it now appears that
parting with or sharing possession, at least where it falls short
of creating or transferring a legal interest, is a remediable
breach.
In addition the following breaches have been held to be
incapable of remedy:
1. running catering premises contrary to the licensing laws in
breach of a covenant to conduct them according to those laws;
2. contravening the Food and Drugs Act resulting in 14
convictions;
3. assigning the lease without the landlord’s consent;
4. sub-letting the premises or part thereof;
5. using the property for the sale of obscene material;
6. using the premises for espionage resulting in convictions
under the Official Secrets Act.”
Page 28
(The references to all but the last of the six examples are from cases
decided before 1983.)
79. In the modern law, technical issues about such distinctions, and the contents
of a section 146 notice more generally, should not normally be of practical
concern for landlords or the courts. A well-drafted notice will simply state
that the tenant is “required to remedy the breach, if it is capable of remedy…”
(Hill & Redman para [4681]). Nor need the notice itself specify what is “a
reasonable time” for compliance. “All that the statute requires is that a
reasonable time to remedy the breach must elapse between service of the
notice and the exercise of the right of re-entry or forfeiture” (Billson v
Residential Apartments Ltd [1992] 1 AC 494, 508 per Sir Nicolas BrowneWilkinson V-C).
80. Thus, unless the breach is one of the limited categories now regarded as
incapable of remedy under section 146, the practical purpose of the notice is
simply to alert the tenant to the nature of the alleged breach and give him an
opportunity to remedy it, and, if he is unwilling or unable to remedy to do, to
trigger his right to invoke the jurisdiction of the court to consider the overall
merits of enforcement in the context of an application for relief. Although
these principles have been refined and restated in more recent cases, the
general approach has not changed materially, at least since the Rugby School
case in 1935.
Alternative interpretations
81. I turn to Lord Wilson’s proposed explanation for the omission of the
reference to breaches “capable of remedy”, and of its consequences (para 20).
He suggests that, assuming no “rare, inadvertent error”, the words were
treated in effect as surplusage, because it would have been “nonsensical” to
require notice to remedy a breach which was incapable of remedy (para 20).
He concludes that the “twin requirements” to serve notice and to afford the
occupier a reasonable time to comply apply only to a breach capable of
remedy.
82. That seems to me, with respect, to involve unwarranted violence to the
statutory language. I would discount the possibility of an error by the
draftsman, who was replacing the very recent wording of the 1975 Act,
covering the same issue on a matter of some public controversy. We must
proceed on the basis that the omission was deliberate.
Page 29
83. There is another explanation which is no less plausible in my view, and has
the merit of consistency with the language used. The draftsman was seeking
to reproduce the general effect of the section 146 protection in simplified
form, including the general requirement for a formal notice as a preliminary
step to enforcement. However, he may have thought it desirable to dispense
at the notice stage with the historic distinction between remediable and
irremediable breaches, and the baggage of sometimes confusing case-law
associated with it. He may have considered it an unnecessary complication,
given the very limited categories of breach still recognised as in principle
incapable of remedy, following the Rugby School cases, and the even more
limited significance of most of them for ordinary owners and occupiers of
mobile homes. In those circumstances no practical harm would result from a
general requirement for a notice to remedy as a preliminary to court action.
84. As I understood it the alternative reading now proposed by Lord Wilson was
not advanced by either side at the hearing in this court. There was, however,
some discussion of the operation of the paragraph in relation to breaches
which on any view would be incapable of remedy, one of the more extreme
examples being setting fire to the adjoining mobile homes. One suggested
answer was that such a breach might be treated as a repudiation of the contract
under common law principles, and thereby implicitly excluded from the
protection of Schedule 1 of the 1983 Act. Whatever the merits of that
argument, I agree with Lord Toulson that the general requirement for a notice
to remedy cannot sensibly be understood as carrying with it the implication
that every breach, however grave, must be treated by the court as remediable.
There will be breaches sufficiently serious that, as he suggests, the owner will
be entitled to treat the notice to remedy as “a matter of form” only, and to
commence proceedings for possession forthwith. In such cases the court may
be satisfied that the occupier has failed to comply, not because he has failed
to act within a particular time, but, because having regard to the nature of the
breach, there was nothing he could have done to remedy it. This will be matter
to be determined, by reference to the practical realities of mobile home life,
rather than to parallels with cases in a different context under a different
statute.
Negative user conditions and repeated breaches
85. Whatever the true explanation for the structure and wording of para 4, the
principal difficulty in the present case arises from the intermittent nature of
the breaches in question. The mischief lies not so much in that of the initial
breach, which in common sense terms can be readily dispelled (as Lord
Wilson says: para 30), but in its repetition at irregular intervals over a
significant period. Those features do not appear in any of the cases to which
we have been referred under section 146. Indeed, none of the more recent
Page 30
authorities was concerned with breach of a negative user condition, that is
one prohibiting conduct of a specified kind. In respect of such breaches, the
law does not appear to have developed materially since the Rugby School
case in 1935.
86. Lord Wilson (para 33) has referred to an argument relied on by the owners in
the present case, which he describes as the “cat and mouse spectre” –
“The spectre is that the occupier commits a breach and is served
with a notice; that he commits no further breach for a
reasonable time and thereby complies with the notice; that
thereupon he commits a further breach; that the cycle begins
again; and that his licence cannot be terminated.”
He discounts this concern as “unreal”.
87. I do not think that the argument can be dismissed so summarily. It is of
interest that some 80 years ago a similar argument was successful at first
instance in the Rugby School case. In holding that negative covenants were
in principle irremediable, McKinnon J took account of “a very obvious
disadvantage” from the landlord’s point of view of the opposite approach:
“… supposing the case of a breach of covenant not to do
something and, when the landlord complained, an immediate
abstention from the user of the premises in breach of the
covenant, the landlord would be deprived of any cause of
action, or, if he had already begun one, he would have it
dismissed with costs. And that might happen again and again;
the landlord would have to give a fresh notice in each case, with
the same result.” ([1934] 1 KB 695, 701).
This passage was also cited with approval as part of Harman J’s “grumble of
discontent” in Hoffmann v Fineberg [1949] Ch 245, 254: Lord Wilson para
25.
88. The Court of Appeal in Rugby School did not find it necessary to address the
point, in view of its conclusion on the facts of the case. However, its
reasoning may provide a clue to the answer. The assumption behind
McKinnon J’s concern was that a notice to remedy the breach would become
spent as soon as there had been compliance, for however short a period, and
would have no effect if the offending use was resumed thereafter. That does
Page 31
not appear to be how Greer LJ saw the matter (para 72 above). His view of
compliance required not simply “the immediate ceasing of that which is
complained of” but also “an undertaking against any further breach”.
Although it was unnecessary for him to explore the legal practicalities of that
suggestion, it shows that immediate cessation by itself was not enough.
89. Thus, in the context of a negative user condition, compliance with the notice
meant not simply a temporary pause, but ceasing the use altogether and
indefinitely. If when the matter came to court, it was found that the tenant
had, following a period of abstinence, resumed the offending use, the court
would be able to hold both that a reasonable time had elapsed and that he had
failed to comply, and (subject to questions of relief under section 146(2)) to
uphold the landlord’s right to enforce. The same approach in my view can be
applied under the 1983 Act, and it provides a practical and common sense
answer to the “cat and mouse” problem as it arises under para 4.
90. That reading also provides an answer to Lord Wilson’s concern about the
need to give some meaning to the words “within a reasonable time”. He
concludes that, in relation to breach by an occupier of a negative user
condition, the effect of the obligation not to do the prohibited act “within a
reasonable time” is that he must not do it “for a reasonable time” (paras 30,
35(iii)). The implicit assumption is that the landlord, and ultimately the court,
would have to determine what was the “reasonable time” during which the
occupier should be expected to comply with the covenant, so as to bring any
repetition of the breach within the scope of that particular notice to remedy.
Again, with respect, I find this an unwarranted distortion of the wording of
the provision. First, it would be strange to find the same phrase “within a
reasonable time” being used in two quite different senses in the same
provision. Secondly, I find it difficult to understand why or on what basis the
landlord or the court should be expected to specify a “reasonable” period for
the occupier to comply with his obligations under the agreement, other than
the full term for which he is already contractually bound.
91. On the reading I have proposed, it is an unnecessary distortion. Compliance
within a reasonable time in this context means immediate and continuing
compliance. If when the matter comes to court, that has not been achieved,
the court can be satisfied of the matters required under para 4(a), and the
determining issue will be that of reasonableness under (b). That approach
seems to me both consistent with the wording of the paragraph, and one
which maintains a fair balance between the interests of owner and occupier.
Page 32
The present case
92. It remains to apply these principles to the present case. The application of the
analysis outlined above would have presented no real difficulty if the later
breaches had occurred within a short time after the first (and only) qualifying
notice to remedy. Further incidents within a few weeks or even months of the
notice to remedy could fairly have been treated as parts of a continuing failure
to comply, properly referable to the same notice, regardless of the intervening
periods of good behaviour. The problem arises because of the very long gap
(some three years) between that notice to remedy and the breaches which in
the event triggered the court action. The structure of para 4 suggests the need
for some causal or temporal link between the notice to remedy and the acts
which justify the court’s intervention. As Lord Toulson says, a notice to
remedy should not be regarded as a gateway for termination for any breach
throughout the remainder of the contract. I agree with him, however, that the
history may be relevant in judging whether a later breach is truly
irremediable.
93. In the Court of Appeal, Mummery LJ did not see the gap in time as an
obstacle. As he explained in a passage quoted by Lord Wilson (para 31), he
saw no reason why the notice served in 2006 should not have continuing
effect for the whole period of the defendant’s occupation of the mobile home
(para 52).
94. As I understand it, the judge had adopted a similar approach. He had helpfully
explained his view of the law at the beginning of his judgment:
“First of all, my interpretation of clause 4(a) is that what is
required is that there be what I might call an initial breach, then
a notice to remedy that breach, and a failure to comply with the
notice within a reasonable time. In the context of this case,
which concerns what I can roughly call antisocial behaviour,
that would mean an instance of antisocial behaviour, a notice
complaining of it and requiring him to desist from it and then a
proven instance of further antisocial behaviour in disregard of
the notice.” (para 4)
95. His factual conclusion under para 4(a) came towards the end of the judgment
(para 33). Having set out the relevant clause 14 prohibiting any act “which
may be or become a nuisance, damage, annoyance or inconvenience” to the
neighbours. he said:
Page 33
“I do find, first of all, that he was warned against antisocial
behaviour of that kind by the notice of 15 August 2006 ‘No
unsolicited approaches or advances to other residents on
Meadowview Park causing alarm and distress’ and it appears
to me that that is sufficient, though I think only just sufficient,
to constitute a notice complaining of harassment of neighbours
and warning him of the consequences of harassment to
neighbours. As I have found, I take the view that on 15 July
2009 he did engage in a very serious incident of such antisocial
behaviour when he made the threats to kill to Mr. Carter and
made threatening gestures with a pole in the manner that I have
found. So I do I consider that that is a pleaded and actionable
and proven breach after notice, satisfying the requirements of
clause 4(a) and opening the way to the court to remove him if
it considers it reasonable to do so.”
He then went on to express his conclusions on the issue of reasonableness
under (b), in relation to which no there is no challenge.
96. In agreement with the other members of the court, I have concluded that this
reasoning cannot be supported. He does appear to have treated the notice to
remedy the August 2006 breach as a sufficient platform in itself for the action
in respect of the breach three years later. Although my interpretation of para
4 differs in some respects from that of Lord Wilson, I agree with him, and
with Lord Toulson, that the lapse of that period between the notice to remedy,
and the conduct on which the court ultimately based its order, was too great.
97. I reach this conclusion with some regret. Faced with a very disturbing case,
and in the absence of clear guidance in the statute or the cases, the judge
adopted what seemed a sensitive and practical approach, and his conclusion
on the reasonableness of termination is not under challenge. I also agree with
what Lord Toulson says about the July 2009 incident, viewed as a potential
ground for proceedings in its own right. However, that was not the basis on
which the case has proceeded.
98. Accordingly, for the reasons given above, but in agreement with Lord Wilson
as to the conclusion, I would allow the appeal. The main practical difference
of my approach is that it gives effect to the natural reading of the paragraph
by requiring a formal notice to remedy in every case, even where the owner
intends to assert that it is irremediable. As to the issues identified by Lord
Wilson (paras 2, 35) I agree with his answer to questions (i) and (ii), but
would answer question (iii) as explained in para 91 above.
