Application for new tenancy - tenant erroneously giving counter-notice indicating willingness to give up possession - subsequent counter-notice to contrary effect - convention rights not requiring original counter-notice to be revocable

Pennycook v Shaws (EAL) Ltd: CA (Lord Justice Thorpe, Lady Justice Arden and Sir Martin Nourse): 12 February 2004

The landlord served a notice under section 25 of the Landlord and Tenant Act 1954 terminating the tenant's business tenancy, relying on certain breaches of covenant.

The tenant served a counter-notice which stated in error that the tenant would be willing to give up possession of the property.

The error in the counter-notice was spotted before the two months for serving a counter-notice had expired.

The tenant then served a negative counter-notice.

He subsequently applied to the county court for the grant of a new tenancy in pursuance of section 24(1) of the 1954 Act which was refused by a county court judge.

The tenant's appeal was allowed by Mr Justice Pumfrey [2003] Ch 399.

The landlord appealed.

Judith Jackson QC (instructed by ASB Law) for the landlord.

William Geldart (instructed by Hallmark Atkinson Wynter) for the tenant.

Held, allowing the appeal, that although the county court judge gave permission to appeal on human rights grounds, the judge did not decide the case on those grounds as anticipated; that he had taken the view that In re 14 Grafton Street [1971] Ch 935 was distinguishable and concluded that a second counter-notice could be served within the two-month period allowed by the 1954 Act; that since the appeal to the High Court had been expected to turn on the human rights authorities Bridgers & Hamptons Residential v Stanford (1991) 63 P & CR 18, in which the Court of Appeal had affirmed In re 14 Grafton Street, and which was binding on the judge, had not been cited to him; that the judge's decision could not stand unless the flexible result which he had held should apply was the construction now required to be placed on the 1954 Act by reason of the court's duty under section 3 of the Human Rights Act 1998 to construe legislation whenever enacted compatibly with convention rights so far as it was practicable so to do; and that even though article 1 was engaged it was not violated.

(WLR)