B2/2000/3247

Neutral Citation Number: [2001] EWCA Civ 621
IN THE SUPREME COURT OF JUDICATURE        
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PONTEFRACT COUNTY COURT
(HIS HONOUR JUDGE BARR YOUNG)
							Royal Courts of Justice
							Strand
							London WC2A 2LL

							Monday 30 April 2001
B e f o r e:

LORD JUSTICE ROBERT WALKER
LORD JUSTICE KEENE

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DONALD SHAW
Claimant/Respondent

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LAWRENCE DAVIS
Defendant/Applicant

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040  Fax: 020 7831 8838
Official Shorthand Writers to the Court)

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MR G ASPREY appeared as a litigation friend on behalf of The Applicant, Mr Davis.

The Respondent did not attend and was not represented.
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J U D G M E N T
1.	LORD JUSTICE ROBERT WALKER: This is an application for an extension of time for appealing and for permission to adduce new evidence on an appeal from an order of His Honour Barr Young made in the Pontefract County Court on 8 June 2000. The judge found Mr Lawrence Davis guilty of contempt of court in breaching the terms of an injunction granted in the same court on 28 April 1999 in proceedings in which Mr Donald Shaw was the claimant and Mr Davis was the defendant. 
2.	They were respectively the tenant (or, as Mr Davis has contended, the former tenant) and landlord of premises known as the Jolly Sailors Yard at Low Street, Brotherton, West Yorkshire. Brotherton is a village near Pontefract, bordered by the River Aire on one side and by the Great North Road on the other side. The premises, which back onto the river, originally included a large garage, some office premises, toilet facilities and some smaller garages either inside or outside the enclosed yard. 
3.	Mr Davis, the owner of the premises, is in his mid-70s. He suffers from diabetes and some other disabilities. He cannot read or write, although he can sign his name. At the time when the injunction was granted he was represented by solicitors, Messrs Carter Bentley & Gundill of Pontefract, but they ceased to act for him soon after the injunction was granted. Since then Mr Davis has been advised by Mr Geoffrey Asprey, who the judge permitted to appear as Mr Davis' Mckenzie friend, despite the fact that Mr Asprey was also a witness of fact at the hearing. This court has also heard submissions on behalf of Mr Davis from Mr Asprey. 
4.	The history of the matter began in November 1997 when Mr Shaw and some friends of his decided to start a taxi service. Mr Davis agreed with Mr Shaw for him to have a tenancy for 5 years: 
“Unless terminated by either party giving 6 months' notice in writing to the other party.” 
5.	The rent was to be £120 per week payable monthly in advance. The landlord was to be responsible for insurance and repairs and the tenant for electricity and 'phone charges. These terms were recorded in a simple written agreement. 
6.	In an affidavit sworn on 22 April 1999, Mr Davis denied having signed the original agreement of 24 November 1997. That is a manuscript document not in Mr Davis' hand, apparently signed both by Mr Davis and by Mr Shaw over a postage stamp. In a witness statement made on 30 April 2000, Mr Davis stated: 
“I vehemently deny any agreement on the written side, but I agree to a verbal one, exhibit 'LD1'. 
Exhibit “LD1” consists of copies of three manuscript tenancy agreements, each for a term of 5 years terminable on six months' notice, apparently signed by Mr Davis on 24 November 1997, 1 July 1998 and 1 August 1998. It is hard to know what to make of this evidence. When he was cross‑examined at the committal proceedings, Mr Davis appears to have accepted that he signed the most recent tenancy agreement, that dated 1 August 1998. 
The explanation for the new tenancy agreements was that the area of the property originally let was quite extensive. Mr Davis asked Mr Shaw to agree to parts being relet to other tenants, presumably on more advantageous terms. Mr Shaw agreed to this and the extent of the property let to him was successively reduced by the new agreements. So was his rent, first to £70 per week and then to £40 per week. Unfortunately the arrangements about the supply of electricity were not revised and Mr Shaw found himself faced with bills from the Yorkshire Electricity Board, not only for the fairly modest requirements of his business (according to the evidence a two-way radio, lighting and a refrigerator) but also for the requirements of other businesses including that of other car repairs carried on by other tenants at the Jolly Sailors Yard. 
The trouble started early in 1999 when Mr Davis gave occupation of part of the premises to two young men who wanted, Mr Shaw thought, to become tenants of the whole of the premises. Mr Shaw suspected, rightly or wrongly, that they were in the business of ringing (that is changing the identity of stolen cars) and he informed the police. His evidence was that Mr Davis was very angry about that and said that he wanted Mr Shaw out. The electricity supply to Mr Shaw's premises was disconnected on 22 March 1999 and again after a temporary reinstatement on 25 March 1999. Mr Shaw gave evidence of other threats by the young men, not I emphasise by Mr Davis himself.
There were incidents, which I need not describe in detail, on 5, 6 and 7 April 1999 which led to Mr Shaw's application for an injunction. They also led to proceedings against one of the young men, Mr Paul Baker, at the Selby Magistrates' Court. Mr Shaw obtained an injunction, not on notice, on 7 April 1999 and it was continued after an on notice hearing on 28 April 1999. The terms of the negative injunctions were that Mr Davis was forbidden: 
“....(whether by himself or by instructing or encouraging any other person) 
(a) from interfering with the electricity supply to the Claimant's property
(b) from using or threatening violence towards the claimant, Donald Shaw, and his servants or agents
(c) from otherwise disturbing the Claimant's peaceful enjoyment of the property.”
7.	The order continued:
“This order shall remain in force until the termination of the Claimant's lawful occupation of the property unless before then it is revoked by further order of the court.”
8.	There was also a mandatory order for restoration of the electricity supply. On 16 June 1999 the solicitors acting for Mr Shaw wrote to Carter Bentley & Gundill. The letter is largely concerned with a visit from a Yorkshire Electricity Board investigator who was inquiring into how the supply had been altered, but the last paragraph stated, in the context of responding to a notice served under section 146 of the Law of Property Act 1925: 
“If your client is still intent on taking possession of the premises, we would suggest that he takes the only step open to him and serves Mr Shaw with the required six months' notice.” 
9.	Mr Asprey, on behalf of Mr Davis, has claimed that this is important new evidence. It had been on the file of Mr Davis' former solicitors since soon after the injunction was granted. It is not in dispute that Mr Davis did decide to serve a notice. However, he did not employ solicitors to do that. Instead he had the assistance of Mr Asprey. Mr Asprey, himself, said in his evidence in chief at the committal proceedings, referring to an earlier notice to quit given by Mr Davis on 29 March 2000: 
“Mr Davis and I have worked together to try and evict or get rid of Mr Shaw in a lawful manner. By doing so I read the quit notice that Mr Davis had put forward to the Court and thought it was inadequate. I told Mr Davis that I would sit down and write on my computer a notice for Mr Shaw to quit the premises, which I did, and that is the evidence, D6.” 
10.	The notice was in the following form. It began with Mr Davis' name and address and the date, 20 June 1999, and a reference to the property let. Then it continued: 
“I the above named being the landlord off [sic] the said premises, do hereby give you Donald Shaw notice to quit the above said premises. You as the tenant have failed to pay the rent & are in arreas [sic] some £560. It is also fact that you have failed to pay the rates & Electricity. Subsequently the supply of Electricity to the said buildings has now been terminated. Falsifying my signature on bogus agreements. Through your actions & unreasonable behavior I have had no alternative but to take the course off [sic] action mentioned in the above. I will be applying to court for the arreas [sic] & also your eviction.
Yours L Davis.”
11.	It will be apparent that there was no reference either to six months' notice or to any specified date on which the notice would expire. It was more like a notice complaining of breaches of obligations of the tenancy, especially as it referred to an application to court. Mr Shaw's evidence was that Mr Davis was at that time refusing to accept the rent. Mr Shaw also said that he was expecting a notice but his understanding was that he would receive a proper notice through solicitors. Mr Davis did at some stage apply to the Pontefract County Court, but it was an application for permission to appeal rather than any new application relating to the tenancy. Mr Shaw did not vacate the premises. His evidence was that he never received the notice dated 20 June 1999. 
12.	Matters then went on until early in the year 2000 when Mr Davis received from Selby District Council an enforcement notice dated 17 January 2000 complaining of the use of the premises for a taxi service without planning permission. That may have come as something of a surprise to Mr Shaw since the documents before us show that the same local authority had granted a licence, not to Mr Shaw but to his partner, Miss Jan Hopkins, to carry on a taxi service at the premises. The enforcement notice gave until 25 February 2000 for compliance with it. A further three months would have been available if an appeal against the enforcement notice had been made. 
13.	According to Mr Davis' statement dated 30 April 2000:
“We....”
14.	Mr Davis and Mr Asprey,
“....put a note through his porto cabin giving him seven days to remove all of his possessions. After the seven days we removed Mr Shaw's locks & replaced them with my own locks.” 
15.	That was his written evidence which had, according to Mr Asprey, been read to him before he signed it. In the oral evidence which he gave at the committal proceedings his general attitude was that he knew nothing about any material issue. 
16.	It seems reasonably clear that after excluding Mr Shaw in this way, Mr Davis, through Mr Asprey, went through papers which had been left on the premises and exhibited to Mr Davis' witness statement various documents, some of them confidential, which had been sent to Mr Shaw or his partner. These included some letters covered by legal professional privilege. It is most regrettable that documents of that sort should have been exhibited without the permission of Mr Shaw in these proceedings. 
17.	When he found himself locked out, Mr Shaw went to the police but they took the view that it was a civil matter in which they could not interfere. Mr Shaw recovered some of his cars and attempted to run his business from his home, but he encountered great difficulties in doing so. On 14 February 2000 his previous solicitors came off the record. It was not until April 2000 that his present solicitors, Emsleys of Castleford, came on the record and Mr Shaw, with the benefit of legal aid, applied to have Mr Davis committed for contempt of court. 
18.	The adjourned application was heard at Pontefract on 8 June 2000. There is a complete transcript of the whole hearing. The most important breach alleged, once the issues had been clarified, was that of disturbing the tenant's peaceful enjoyment of the property. At the beginning of the hearing the judge was told that no breach of the injunctions was admitted and the judge said he would be applying the criminal standard of proof. 
19.	The judge heard evidence from Mr Shaw and his partner, Miss Jan Hopkins, who were cross‑examined by Mr Asprey. The judge had to intervene during the course of the cross-examination in order to maintain calm. By the end of this evidence it was admitted that Mr Davis had, after his seven day notice to Mr Shaw to remove himself and his possessions, locked the gates so as to exclude Mr Shaw (and the electricity supply had ceased to be an issue in the proceedings). 
20.	The judge then heard evidence from Mr Davis, Mr Derek Brown (who was building a boat in part of the yard) and Mr Asprey himself. Mr Asprey admitted that he had advised changing the locks and that Mr Nairn Wood, who was one of the young men who wanted to take over the yard, had actually done the changing of the locks. Mr Davis said that there were two new padlocks which had cost £6 each. 
21.	By halfway through the hearing it was quite clear that one of the central issues was whether the so called notice to quit had been served on 20 June 1999. Mr Asprey gave evidence of having prepared it, having got Mr Davis to sign it and having taken it to the portacabin to serve it on Mr Shaw. However, Mr Shaw was not there. Mr Asprey said that he gave it to a man who worked in the taxi firm whose name he did not know. It now appears that that man was Mr Robert Williamson. Some of that evidence was confirmed by Mr Brown who appears to have been an impartial witness of these events. 
22.	The judge's critical findings, after seeing and hearing all those witnesses, was as follows: 
“On a date in January of this year the claimant, or applicant in this matter, was denied access by virtue of the gates to the property being secured by a padlock to which he did not have the means of opening. He was thus denied access. I have to be satisfied so that I am sure that there has been a breach of this injunction. I say the standard of proof that is required is that that is required in a criminal Court. I am satisfied so that I am sure that the claimant was denied access. Had his lawful occupation ceased? I am satisfied it had not.”
23.	The judge then summarised the evidence as to the service of the notice. Of Mr Asprey's own account, it was not served on Mr Shaw himself. The judge accepted Mr Shaw's evidence that he had never seen the notice. The judge found contempt of court proved and fined Mr Davis £500 payable at the rate of £40 per month with 14 days imprisonment in default of the payment of the fine. He also ordered Mr Davis to pay the costs of Mr Shaw, who was legally aided, and the judge gave directions for the supervised recovery of Mr Shaw's and Miss Hopkins' effects from the premises. 
24.	In his notice of appeal prepared by Mr Asprey, Mr Davis has relied on two grounds: that there are more witnesses to confirm, as he puts it, that Mr Shaw did receive his six months' notice and that the judge misunderstood the sequence of events as regards the changing of the locks. 
25.	I have carefully read the transcript of all the evidence about the changing of the locks, and indeed about every aspect of this matter. The evidence about the locks was certainly confused since Mr Davis' own evidence was in places either inconsistent or incoherent. But it is quite plain that both he and Mr Asprey accepted that they changed the locks and excluded Mr Shaw after the expiry of the peremptory 7-day notice which they put on or through the door of the portacabin after the enforcement notice had been served. The judge well understood the essentials of the position. The relevant evidence appears in particular on pages 34 and 35 of the transcript. 
26.	As regards the application to adduce new evidence, one of the new witnesses is said to be Mr Robert Williamson who worked in the taxi firm. He was to have been called as a witness for Mr Shaw at the hearing, however it was agreed that his evidence was about changing the locks was not needed because that had by that stage been admitted. There is no new witness statement from Mr Williamson and there is no question of his being subpoenaed to give evidence in this court. 
27.	The other witnesses are Mr Nairn Wood and Mr Mick Vickers, both of whom should have been readily available to give evidence at the hearing. Mr Wood had given a witness statement and he seems to have been present at the hearing, but it was agreed that there was no need to call him. The most significant point, to my mind, is that the evidence of these two witnesses adds nothing to what was before the judge, except for a somewhat unconvincing identification of Mr Williamson as the person to whom Mr Asprey handed the notice. 
28.	The judge was not referred to section 196 of the Law of Property Act 1925, which relates to the service of statutory and other notices. It may be that, under section 196, service of the notice on Mr Williamson would have been adequate. However, the service of the notice dated 20 June 1999 is ultimately a completely irrelevant issue since it cannot possibly have been a valid notice to quit. I have read that notice. It says nothing about either the length of the notice that has been given or, more importantly, the date on which the notice is to expire. 
29.	The decision of the House of Lords in Mannai Investments v Eagle Star [1997] AC 749 has in no way altered the fundamental rule that a notice to quit is not valid unless the recipient would, on an object of approach, be in no doubt as to its intended effect. That cannot be said of the notice of 20 June 1999. It was more like a notice of proceedings for forfeiture. It also appears to have been defective as not complying with part II of the Landlord and Tenant Act 1954 relating to the termination of business tenancies. 
30.	In these circumstances, and for these reasons, I have come to the conclusion that either with or without the new evidence which Mr Davis wishes to adduce, an appeal in this matter would be hopeless. Some of the so-called new evidence is, as I have explained, privileged material. The other two new witness statements add nothing significant.
31.	I would, therefore, dismiss these applications.
32.	LORD JUSTICE KEENE: I agree.
Order: Permission to appeal refused.