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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Coltrane v Day  EWCA Civ 342 (14th March 2003)
Cite as:  1 WLR 1379,  EWCA Civ 342
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE COX
CLERKENWELL COUNTY COURT
London, WC2A 2LL
B e f o r e :
LORD JUSTICE TUCKEY
MR. JUSTICE WALL
| Andy COLTRANE
|- and -
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Simon BRAUN (instructed by Sherrards) for the Respondents
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Lord Justice Tuckey:
Both at the date of service of the notice under section 8 of this Act …. and at the date of the hearing –
(a) if rent is payable weekly … at least 8 weeks rent is unpaid;
(Schedule 2 Part 1 Housing Act 1988)
The question which arises on this appeal is whether rent is "unpaid" if a cheque for the arrears due at the date of the hearing is delivered to the landlord, which is accepted by the landlord but has not yet been paid by the date of the hearing.
…. on general principles rent should be paid in cash but can be waived and accept cheque. The court should be slow to come to the conclusion that waiver has occurred. [Counsel for the tenant] contends that rent had always been accepted by cheque, but up to the hearing no payment had been made for 17 weeks. So that may be the position when rent is regularly paid but this cannot bind the landlord always to accept cheque.
By issuing the notice seeking possession the agreement to accept the cheque was no longer in force and there was no doubt as to whether the landlord had accepted the cheque. As Mr Braun pointed out, the payment of a cheque at or shortly before a hearing of a ground 8 action would always defeat the purpose of ground 8 as the decision would not be capable of being made at the date of the hearing as required by the wording of ground 8.
On this analysis the rent was unpaid on 9th September so the District Judge had no power to adjourn and should have made an order for possession which the judge then made.
The general position in law … is clear. Where a cheque is offered in payment it amounts to a conditional payment of the amount of the cheque which, if accepted, operates as a conditional payment from the time when the cheque was delivered.
(per Lord Woolf at para. 35 in Homes v Smith (2000) Lloyds Law Rep. (Banking) 139)
For this summary of the principle, Lord Woolf relied on earlier cases and in particular what Farwell L.J. said in Marreco v Richardson (1908) 2 KB 584, 593:
The giving of a cheque for a debt is payment conditional on the cheque being met, that is, subject to a condition subsequent, and if the cheque is met it is an actual payment ab initio and not a conditional one.
Marreco was concerned with the effect of the Limitation Act, but Lord Woolf added that Farwell L.J.'s approach was of general application. This is demonstrated by three cases decided under the Agricultural Holdings Act 1948 to which we were referred.
Mr. Justice Wall:
Lord Justice Potter: I agree with both judgments.