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Cite as: [2001] EWHC Ch 387

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Yenula Properties Ltd v. Naidu. [2001] EWHC Ch 387 (18th July, 2001)

 

Case No: CL 851152

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 18 July 2001

B e f o r e :

THE HONOURABLE MR JUSTICE LLOYD

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YENULA PROPERTIES LIMITED

Appellant/ Claimant

 

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VENKAT MUN SWAMI NAIDU

Respondent/ Defendant

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Jonathan Brock Q.C. and Emily Windsor (instructed by
S J Berwin for the Appellant / Claimant)

Christopher Pymont Q.C. and Nigel Thomas (instructed by
Rippon Patel & French for the Respondent / Defendant)

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Hearing dates: 12 and 13 June 2001

JUDGMENT

 

I direct that no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.

 

Mr Justice Lloyd:

Introduction - the appeal to the High Court

  1. These proceedings were commenced on 9 March 2000, by the issue of a Part 8 Claim Form. They concern a tenancy held by the Defendant of premises (which I will call the Flat) known as Flat 4 (or as Duplex Apartment), 6th and 7th Floors, York House, 17 Great Cumberland Street London W1, the entrance being from Bryanston Street. The Claimant sought a declaration that the tenancy, created by an agreement in writing dated 4 August 1995, is an assured shorthold tenancy. A Part 8 Claim Form was presumably used in the belief that there was no substantial dispute of fact: see CPR 8.1(2)(a). That belief turned out not to be justified. On 4 May 2000 an order was made for the Defendant to serve a Defence, which he did. The order did not, as it could have done under CPR 8.1(3), include an order that the claim continue as if the Part 8 procedure had not been used, though the substance of the directions was such as might have been ordered on that basis. If the court had made such an order, it could also have allocated the claim expressly to the multi-track: see PD supplementing Part 8, para. 1.6. Since it did not make such an order, the claim is deemed to have been allocated to the multi-track: see CPR 8.9(c). Because of the deemed allocation, the appeal from the eventual judgment is not one of those which, under the Access to Justice Act 1999 (Destination of Appeals) Order 2000, article 4, lies to the Court of Appeal. That article only applies to final decisions in cases allocated to the multi-track under CPR 12.7, 14.8 or 26.5, not to those deemed to be allocated under CPR 8.9(c).
  2. As a result of this quirk, which could not have been foreseen at the issue of the proceedings, and hardly at the time of the directions order on 4 May, the matter having in due course been decided against the Claimant at trial by His Honour Judge Bradbury on 30 October 2000, the appeal lay to the High Court. Permission to appeal was refused by the judge and, on paper, by Ferris J, but that judge was then persuaded to grant permission at an oral hearing, and I have accordingly had the pleasure of hearing Mr Brock Q.C.'s and Mr Pymont Q.C.'s able arguments for and against the appeal over 2 days. It would be as well for practitioners to be aware of this oddity of the regime as regards the destination of appeals, and to take it into account both in deciding whether to use a Part 8 Claim Form and, where one has been used but the matter is to proceed with statements of case and disclosure, whether to ask the court to make an order under CPR 8.1(3) and an express allocation order.
  3. The issues in the case

  4. In the Particulars of Claim the Claimant alleged an agreement in writing dated 4 August 1995 by which the Flat was let by the Claimant to the Defendant for a term from 4 August 1995 to 25 March 2001. The Defendant admitted that allegation in paragraph 2 of the Defence. The Claimant next alleged that the Defendant employed an agent, a Mr Mendis who was a licensed conveyancer, to act on the Defendant's behalf in respect of all matters leading up to and including the signing of the tenancy agreement. The Defendant admitted retaining Mr Mendis, but not that the scope of his instructions was as wide as the Claimant said. The Claimant then alleged the service on Mr Mendis, as agent for the Defendant, of a notice under section 20 of the Housing Act 1988, on 4 August 1995 prior to the granting of the tenancy agreement, such as was necessary for the tenancy to be an assured shorthold tenancy. As to this the Defendant denied service of the notice on Mr Mendis on 4 August 1995 (though at trial this was not disputed) and also denied that, even if it was served on him, it was effective as against the Defendant. By this the Defendant put in issue two points: first, whether a notice under section 20 can validly be served on an agent at all, and secondly whether, if it can, Mr Mendis was the Defendant's agent for this purpose. Accordingly, on the statements of case (and ignoring the question as to whether a notice was served on Mr Mendis on 4 August 1995) there appeared to be two issues: as a matter of law could a section 20 notice be served on an agent, and as a mixed matter of fact and law, was Mr Mendis the Defendant's agent for the purpose of service on him of the notice.
  5. As the case proceeded at trial, however, two other matters were in issue, namely whether the Defendant's tenancy in fact started before 4 August 1995, he having had access to the Flat from 2 August, and if so whether an earlier section 20 notice had been served on Mr Mendis on 31 July or 1 August 1995, before the entry into any tenancy agreement which antedated 4 August. These two issues were never defined on the statements of case, and they developed during the two days of the trial, held on 12 and 13 October 2000.
  6. At trial the judge held that the Defendant had been allowed to move into the Flat on 2 August 1995 as a tenant, accordingly that the tenancy had been entered into before 4 August, and in fact on 1 August, and held that no section 20 notice had been served before that date. He also held that, even if a notice had been served on Mr Mendis, first, it was not within the latter's authority to receive it on behalf of the Defendant and secondly it would not have been valid in law even if he had had such authority.
  7. The Claimant appeals both on the point of law, as to whether a section 20 notice can be served on an agent at all, and on the questions of fact, as to when the tenancy agreement was made and whether Mr Mendis had relevant authority. It also challenges the ruling that no notice was served on 31 July or 1 August, in case its appeal on the starting date of the tenancy is unsuccessful. The appeal thus challenges the judge's findings of fact, and does so in the face of the judge having made findings as to the reliability of some of the material witnesses who gave evidence as to the relevant facts.
  8. The history of the case in the County Court

  9. In the light of the criticisms made on the appeal of the judge's findings and reasoning, it is necessary to pay close attention to the way in which the new issues came to light. For that purpose, I will summarise the way in which the matter developed. The Defence to which I have referred was served on 18 May. Disclosure had been ordered to be given by both parties and, after an extension of time, was given on 5 June. Witness statements were to be, and were, exchanged on 15 June. On the Claimant's side there was only a short witness statement from Ms Amin, the solicitor then employed by S J Berwin who acted for the Claimant in relation to the tenancy agreement. For the Defendant there was one from Mr Mendis and one from the Defendant. Mr Mendis' witness statement showed that he had received a section 20 notice on 4 August, but did not otherwise affect the issues that appeared to be relevant. The Defendant's witness statement stated that he received the keys and moved in on 2 August. Thus it seemed to be the basis of an argument that, even if a section 20 notice was validly served on 4 August, that was too late. It did not explain how a tenancy was created at an earlier date.
  10. The Claimant then put in some further witness statements, by permission granted on 27 September: one more from Ms Amin, and one each from Sara Tack and Ian Hack, both of Conrad Ritblat, the Claimant's managing agents. These went into more detail about the negotiations leading up to the entry into the tenancy agreement, and, as regards Ms Amin, denied that the Defendant had moved in before 4 August. In response the Defendant served three further witness statements, one of them under the Civil Evidence Act and one pursuant to permission granted at the trial: one of these was another from Mr Mendis, and the other two were from people who said they had helped the Defendant to move in on 2 and 3 August. Mr Mendis' further statement took issue with one point in Ms Amin's second statement, as to whether a draft or blank section 20 notice had been sent by her on 18 July. She had not mentioned in her statement another section 20 notice sent on 31 July, and Mr Mendis was also silent on this. Nor did he say anything about the Defendant being let into the Flat before 4 August, or about the creation of a tenancy agreement at any earlier date.
  11. That was how the matter stood at the outset of the trial. When Ms Windsor opened the case to the judge for the Claimant, she gave him several additional documents to be included in the trial bundle: a draft, or blank, section 20 notice from S J Berwin's file, said to have been sent with a letter of 18 July, a completed (but not signed) section 20 notice from the same file dated 31 July 1995, and a receipt form for access cards to the outside door in Bryanston Street to the property as a whole signed by the Defendant and dated 1 August 1995, obtained from the Claimant's records. Ms Windsor then opened the issues to the judge. She explained that the Defendant now admitted that Mr Mendis had received a section 20 notice on 4 August, that even if strictly the defence ought to be amended she took no point on that, and then said that she understood that it was now said the tenancy agreement was entered into before 4 August. In retrospect, it is unfortunate that this allegation, at any rate, was not required to be the subject of some form of particularisation in writing as an amendment to the admission of the Claimant's case in paragraph 2 of the Defence. It is understandable that no-one wanted to insist on something that would lead to unnecessary delay, especially as the judge only had 2 days available for the hearing, and even as things were, it took the whole of those 2 days. But as a result of the course in fact taken, the Defendant was free to advance a case that the tenancy was entered into before 4 August, which is entirely inconsistent with his Defence, without indicating clearly at any stage, and certainly not in advance, how he said it came into being.
  12. Moreover, as it turned out, both the Defendant and Mr Mendis gave evidence, which had not in any way been foreshadowed before, or put to Ms Amin in her cross-examination, that Ms Amin and Mr Mendis had a telephone conversation on 1 August in the course of which they agreed that the tenancy should be effective immediately. By then Ms Amin had left the court, and she was not recalled to be asked about this new evidence. Mr Thomas, then appearing for the Defendant, cannot be criticised for not having put this case to Ms Amin, because it is quite clear that he had no idea, before it came out in cross-examination, that his client or Mr Mendis would say that any such telephone conversation took place. If, however, he had been made to put down on paper at the outset his case as to when, how and on what terms any tenancy agreement predating 4 August was entered into, he might have found out that this was his client's evidence, in which event it would have been put to Ms Amin and the case would have been clearer and less difficult to deal with because of the way it emerged.
  13. The benefit of hindsight is a wonderful thing, but not very useful in dealing with what actually happened. Nevertheless, it does seem to me that, in considering an appeal against the judge's finding that the tenancy agreement was indeed entered into on 1 August, it is important to bear in mind the state of the matters in issue on the statements of case and as the matter was opened to the judge, and the unsatisfactory way in which the eventually successful allegation emerged in the course of the trial. I will also have to examine in much greater detail than would otherwise be necessary the evidence of the three principal witnesses, Ms Amin for the Claimants, and the Defendant and Mr Mendis. This has contributed to the length of this judgment and to the time required for its preparation both being greater than I would have wished.
  14. Mr Brock laid considerable emphasis on the story as it appears from the documents. Mr Pymont criticised this approach as suggesting that the documents have a greater significance than they really do. Clearly documents have to be seen in the context of evidence as to what actually happened, but, except to the extent that it is suggested that the documents put in evidence are not what they purport to be, they do at least provide a solid framework within which to determine the factual issues. I therefore propose to summarise the history, mainly by reference to the principal documents, and I will then address the points in dispute against that background.
  15. Summary of the history

  16. The Defendant appeared on the scene for the first time, so far as the documents are concerned, at the beginning of June 1995. By way of context, the Flat was being used by a Mr Bescoby, who is now dead, and was the Claimant's caretaker at the block. The Flat was not otherwise let, and he was using it for the time being to live in. The Defendant was in need of living accommodation for himself as he had recently separated from his wife and had left the matrimonial home. According to his evidence he had seen the Flat on several occasions before the beginning of June, and had expressed interest in taking a tenancy of it. The Claimant's managing agents, Conrad Ritblat, have an internal note recording the Defendant's interest in the Flat, and his offer of 10,000 per year rent, with a year rent free, and the names of several people, possibly as referees, one being Mr Mendis, identified as the Defendant's solicitor.
  17. The Defendant himself wrote to Conrad Ritblat in the middle of June (the letter is not dated) putting forward his detailed proposal. He knew that the tenancy would be for a term expiring in 2001. He said that much work needed to be done to the Flat to improve and repair it, which justified the rent free period. On 20 June Conrad Ritblat replied, subject to contract, accepting his proposal in principle. They said, among other things, that a new lease would be granted for a period expiring in March 2001 on an assured shorthold basis. On 23 June Conrad Ritblat took up references, including from Mr Mendis. On 28 June S J Berwin wrote to Mr Mendis to say that they had been instructed to act for the Claimant on the proposed letting. They stated the principal terms, including that the tenancy would expire in March 2001 and be on an assured shorthold basis. They asked Mr Mendis to confirm whether he had instructions and whether the points were agreed in principle. Mr Mendis wrote back on 30 June, in a characteristically succinct letter, confirming that he was instructed by the Defendant and saying that he awaited the draft documents.
  18. It took Ms Amin some time to get the draft documents out, not least, it seems, because she was accustomed more to commercial than to residential lettings. She produced a draft tenancy agreement which is certainly a lot longer than would be normal, and therefore, perhaps, took longer to produce. On 18 July she wrote the first of the letters as to which the judge made findings which are controversial. In the first paragraph of the letter she said that she enclosed: (1) a draft tenancy agreement in duplicate, (2) a copy of "the notice which will be served by the landlord prior to entering into the agreement", and (3) copies of two superior leases and the land certificates relating to the Claimant's title. She commented on various points of detail, and apologised for the delay in getting the documents out, explaining the need to liaise with Conrad Ritblat about the form of the documentation, owing to the building being primarily commercial. She said that the draft agreement had not yet been approved by her client and Conrad Ritblat and that changes might be made once they had been consulted. The copy letter in evidence was from her file, and shows that it was copied, as blind copies, to Conrad Ritblat and to the British Land group (of which the Claimant is a member company). Among the documents added to the bundle at the trial was a copy of a blank section 20 notice form which the judge was told came from S J Berwin's file immediately after this letter. He held that no such notice had been sent with the letter, and that the form of notice said to have been found in the file had been placed there after the event, and indeed after service of the Claimant's list of documents (early in June) in the course of preparation for the trial. That finding, not in itself relevant as to the issues at trial, but highly relevant on issues of credibility, is directly challenged by Mr Brock.
  19. It is not in dispute that the letter itself was sent, nor that the items said to have been enclosed and mentioned in paragraph 15 above at (1) and (3) were enclosed. Documents from a file of Mr Mendis' were disclosed, as was the folder itself in which the file was kept. This folder had written on it the only attendance note which was before the judge, in Mr Mendis' hand. This records that on 21 July the Defendant called and collected the draft agreement, the land certificate and the copy lease. It does not refer to a section 20 notice form.
  20. On 27 July Ms Amin wrote again to Mr Mendis, saying that she understood that the Defendant had met Conrad Ritblat and discussed the terms of the agreement. She said that she enclosed a further draft agreement, and referred to a number of particular points. One point calls for mention now. Clause 5.9.1, as to user, had been amended to include ancillary office use "in accordance with your client's requirements". But she said that Conrad Ritblat were checking with the head landlord to ensure that this was acceptable, since under the head lease the upper floor was to be used only for residential purposes. She also recorded that she understood the Defendant wanted to take possession on 1 August, and therefore asked for confirmation by return that the terms were agreed, so that engrossments could be prepared for execution by both parties. On the same day Conrad Ritblat wrote to the head landlord, the Portman Estate, asking, among other things, if it would be acceptable for the Defendant to be allowed ancillary office use of part of the premises, perhaps on a basis personal to him. They too were asked to confirm the position urgently as the Defendant wanted to move in on 1 August. That letter was copied to Ms Amin. On 28 July Mr Mendis acknowledged the letter of 27 July, said that he had discussed the draft tenancy with the Defendant who was happy to proceed on the basis of the draft documentation as it stood, and would like to complete by 1 August.
  21. The next letter from Ms Amin to Mr Mendis, as to which the judge made findings which are challenged by Mr Brock, is dated 31 July. According to the letter, as appears from the copy on S J Berwin's file, it enclosed a notice under section 20 and an engrossment of the agreement for execution by the Defendant. It also enclosed a copy side letter which was to be signed by the Claimant to deal with the question of ancillary office use by the Defendant. It stated that a copy of the agreement and side letter had been sent to the Claimant and that she would be able to complete when she had them back duly signed by the Claimant. Last, she asked Mr Mendis to acknowledge receipt of the section 20 notice on behalf of the Defendant by return. The judge accepted that the letter had been posted, but not that any section 20 notice had been sent. The second of the documents added to the bundle at the trial was a copy section 20 notice, completed but not signed, from S J Berwin's file, dated 31 July and expressed in relation to a tenancy starting on 1 August.
  22. There is no doubt that the engrossment, at least, reached Mr Mendis. On 1 August he wrote back to Ms Amin enclosing it duly signed by the Defendant and asking for the landlord's part of the agreement, with the side letter and the keys, to be sent directly to his firm that day. This was sent to S J Berwin by hand and is stamped received at 1.20 pm.
  23. Meanwhile, on 31 July the Portman Estate wrote to Conrad Ritblat, asking for clarification of the Defendant's intentions so that a final decision could be made. They indicated that use of part as a study would be consistent with residential use and would not require consent, whereas if it was intended that employees should be in occupation of the premises consent would be needed. Conrad Ritblat no doubt spoke to the Defendant and on 1 August they replied, saying that he would be using one room as a study for ancillary office use, with a fax, computer, filing cabinets etc and occasional visits from a secretary but no other use by employees. It seems that over the telephone mention was also made of using the address as the registered office for one or more companies. On 1 August the Portman Estate replied saying that the degree of business use would be consistent with residential use and did not require consent, but that the address could not be used as a registered address for companies. That letter seems to have been faxed by the Portman Estate to Conrad Ritblat on 1 August, and sent on by them to S J Berwin by fax on 2 August in the afternoon. I will revert to the evidence as regards the Defendant gaining access to the premises and the Flat on 1 and 2 August. As regards the dealings between the professionals, on 3 August Ms Amin wrote again to Mr Mendis, referring to a telephone conversation the previous afternoon, which from the context looks as if it was concerned with the question of business use. By the letter she explained that the side letter would no longer be used, and explaining also the basis on which the sort of limited use that had been described would be regarded as permissible, though not the use of the address as the registered address for any company. She concluded by saying that she was waiting for the return of the Claimant's part of the agreement. S J Berwin's files include a letter of 2 August from British Land, stamped as received at 11.30 on 3 August, enclosing the Claimant's copy of the agreement duly signed. On 4 August (a Friday) she wrote again (by fax, transmitted shortly before 11 a.m.) to Mr Mendis to confirm that she had received her client's part of the agreement, and enclosing a revised section 20 notice, with the commencement date of 4 August. She went on:
  24. "We shall be in a position to complete the agreement upon receiving your written confirmation of receipt of the enclosed notice and upon hearing from you later today."

  25. In reply Mr Mendis did respond, also by fax (it is stamped as having been received in S J Berwin's office at 12.50), acknowledging receipt of the letter and the enclosed revised section 20 notice, specifically confirming receipt of the notice and that the commencement was to be that day. He went on to refer to a van and to describe the limited contents of the van: personal belongings and a computer only. He also asked that the managing agents be asked to allow the Defendant to "at least unload his belongings" from the van, in order to avoid unnecessary storage and delivery costs being incurred. I will refer later to what lies behind these references to the van. Having received this fax, Ms Amin inserted the date of 4 August on the front page and the first page of both copies of the tenancy agreement, and inserted appropriate dates consequentially at other points in the agreement where needed (see clauses 3 and 4.2.1, as to the term and the duration of the rent free period). On 8 August she wrote again to Mr Mendis, "further to completion of the tenancy agreement last Friday", enclosing the Claimant's part of the agreement.
  26. Mr Mendis retired from practice as a licensed conveyancer in 1998. His files were lodged with the Council of Licensed Conveyancers. They therefore had to be recovered for the purposes of disclosure. Mr Mendis gave his authority for that to be done. The Defendant's solicitors obtained in this way one file, documents from which were disclosed and which was itself produced at the hearing before the judge and indeed on the appeal. It contains Ms Amin's letters of 28 June, 18 and 27 July, 3 and 4 August, and the original draft tenancy agreement sent on 18 July. It does not contain any section 20 notice form prior to that sent on 4 August, nor does it contain her 31 July letter. However Mr Mendis in cross-examination referred to his having kept another file, in which he might well have kept any notes that he made in the course of the transaction, and into which he also accepted that he might have put letters or notices.
  27. As I have mentioned the tenancy agreement was unusually long, running to some 36 pages. On the front page it is described as Assured Shorthold Tenancy Agreement. The term is expressed by clause 3 to start on a date in 1995 (inserted as 4 August) and to expire on 25 March 2001. The yearly rent is expressed in clause 4.2 as a peppercorn from a date in 1995 (inserted as 4 August) to a date in 1996 (inserted as 3 August), thereafter 10,000 per annum, and after that at each anniversary of the term granted the rent was to be increased by 10%. (These two clauses were those that required manuscript completion once the commencement date of the tenancy was known, and were completed on 4 August by Ms Amin.) Clause 5.9.1 is the main user covenant, in the following terms:
  28. "Not to use the Demised Premises other than as a private residential apartment and not to use the car parking space referred to in clause 2.2.7 hereof other than as ancillary to such domestic use and not to carry on or permit to be carried on upon the Demised Premises or the said car parking space any profession trade or business whatsoever."

  29. The tenancy also included clause 6.12, headed "Housing Act 1988". This stated that the tenancy was intended to create an assured shorthold tenancy as defined in section 20 of the 1988 Act and that the provisions for recovery of possession by the landlord would apply. Of course that is of no effect unless the statutory provisions as to the service of notice were observed, nor would clause 6.12.2, which recorded that a notice had been duly served, prevail if on the evidence it had not been. But at any rate someone who read this clause of the agreement would be in no doubt that the assured shorthold tenancy regime, with particular provisions for recovery of possession, was intended to apply.
  30. I must add to the foregoing recital of the history, as it appears from the conveyancing files, what was going on at the premises and the Flat on and from 1 August. The third document added to the bundles at trial was a receipt form dated 1 August and signed by the Defendant for 2 access cards for access out of hours to the main door at the building of which the Flat formed part. The judge was told that this had been found recently in the files maintained by Conrad Ritblat. It had been issued by Mr Bescoby, and might have been found earlier but for his death. These did not allow the Defendant access to the Flat itself.
  31. The Defendant's evidence was that he was given the keys to the Flat, but not until the next day, 2 August, and that he went in, brought some possessions and had some cleaning and clearing done in anticipation of moving his furniture in. He was helped in this by Miss Jessop, whose statement was admitted under the Civil Evidence Act, and by Prem Kumar, whose evidence was admitted late and who attended the trial and was cross-examined. The judge was satisfied that he was given access to the Flat on 2 August, and that, though originally disputed, is not now challenged. What is in dispute is the judge's finding that he moved in as a tenant.
  32. As I have mentioned, at the start of the trial the Claimant's representatives were on notice that the Defendant would seek to give evidence that he had had access to the Flat before 4 August. Ms Windsor therefore came prepared with a couple of decided cases dealing with the effect and basis of occupation of property in advance of a formal tenancy. She had not prepared a skeleton argument. Mr Thomas had done so, which he gave her when they met at court and handed in to the judge as well. In this skeleton he formulated his client's position as regards what had taken place before 4 August as follows:
  33. "So far as the Defendant is concerned the term commenced on 1 or 2 August 1995. He signed the Agreement on 1 August and he went into possession on 2 August

    It was only after the Defendant had completed his side of the Agreement that a s.20 notice was served: see S J Berwin's letter of 4 August to Bernard Mendis. In fact it is clear from this letter that the term commencement date was amended after the Defendant had signed the lease, obtained the keys from the Claimant and moved into the Premises.

    In these circumstances it is submitted that the reality was that the tenancy commenced on 2 August 1995."

  34. None of that focussed on how a tenancy agreement came to be made on 1 or 2 August. The assertion that the term commencement date was "amended" after 1 August implies that, when signed, the agreement contained a different date than 4 August, whereas it is clear that it never did contain a date at all until Ms Amin inserted 4 August as the date, on that very day. As mentioned in paragraph 10 above, in the course of their evidence the Defendant and Mr Mendis said that there had been a telephone conversation on 1 August between Mr Mendis and Ms Amin in which "completion" had been agreed as taking effect on that day. This was entirely new, to the Defendant's representatives as well as to everyone else, so it had not been put to Ms Amin in cross-examination, nor was she recalled to deal with it.
  35. The evidence of Ms Amin

  36. Ms Amin verified her witness statements and answered some additional questions in chief. She was asked about the blank form of section 20 notice, and said that a copy notice would definitely have gone with the letter of 18 July, and that she would have checked the contents of all letters before they left the office. She was then asked about the 31 July letter, and said she remembered the notice as having been sent. She was asked what was happening on 1 August. She said the question of ancillary office use had come up and was then unresolved, as Mr Mendis knew, "which is why I did not have, I do not think, a special conversation with him on the day". She also said that Mr Mendis was not chasing for completion because he knew there were points outstanding. She was asked about her letter to Mr Mendis of 3 August, and confirmed that they had had a conversation on 2 August, and said that it was about the question of business use, and the Portman Estate's position. She was then asked about the events of 4 August. She said she recalled clearly a conversation with Mr Mendis in which she said his client could not have access to the Flat until he had confirmed to her receipt of the section 20 notice. The judge asked her at that stage whether she really did remember the conversation, and she said she did because it was an unusual case, with lots of telephone calls about why the Defendant was not being allowed to unload belongings from the van.
  37. Ms Amin was then cross-examined. Mr Thomas first asked her about the blank section 20 notice form. He challenged her recollection by reference, first, to the fact that no such form was in Mr Mendis' file, and secondly because it had not been disclosed in the Claimant's list of documents. It is a fair comment (and relevant to the judge's eventual assessment of her) that while she accepted that the blank notice form did not appear in the list, she also pointed out that the draft tenancy agreement sent on 18 July did not either, and that, when asked if, when she reviewed the file earlier in the year, she had seen the blank form, she said that she had and added that she had also seen the form dated 31 July which she said she thought was more important. As regards that document she was cross-examined on the basis that, first, it was not in the disclosure list, secondly, there was no copy even of the 31 July letter in Mr Mendis' file and, later in the cross-examination, thirdly because she had not mentioned it in her supplementary witness statement, in answer to Mr Mendis' assertion that he had not seen a section 20 notice before 4 August, even though she did then mention the form sent on 18 July. Mr Thomas put to her that she did not send the notice, but her answer was clear, that she had done. She was also asked about the lack of any acknowledgement of the notice by Mr Mendis, and said that was not surprising "because we did not complete the tenancy then. The whole negotiations got delayed at that stage because of the other points that were brought up." Mr Thomas then took up that theme and suggested that nothing really remained outstanding on 1 August other than mechanics and formalities. She said there were only two things delaying completion, namely getting the form of tenancy agreement back from her client duly executed, and the question of business use and the Portman Estate's approval. She said she was in touch with Conrad Ritblat "virtually every day" at this stage on the point about business use. Mr Thomas then cross-examined her about the contrast between the form of notice dated 31 July and that dated 4 August, as found in S J Berwin's conveyancing files, the latter being signed and the former not. She said she remembered signing the original of the form dated 31 July and putting it in with the letter, together with the original lease. In relation to the tenancy agreement itself, he asked her about the date being put on, and suggested that there might have been a version with a different date on, which was then removed and a fresh first page substituted on which she put the new date of 4 August. This she firmly denied.
  38. She was then asked about her evidence that the Defendant did not move in before 4 August. It was put to her that this was supposition on her part. She denied this, but on the basis that he could not have received the keys because she had not authorised their release.
  39. After brief re-examination, the judge looked at S J Berwin's original conveyancing file, and cross-examined her himself, in particular about attendance notes, a point he had already taken up during her evidence in chief. She accepted that she did not keep attendance notes of the conversations on 4 August, but said that the points were sufficiently confirmed by letters written that day, and said that she did remember the day clearly, it having been a very unusual letting. It is of course true that no attendance notes were disclosed or produced, and it would have been better if there had been such notes. But it does seem a fair point that Ms Amin did write full letters at the time which could serve to some extent as a record of what had been said and done. Mr Mendis may or may not have made such notes. If he did they were in his other file, not obtained by the Defendant's solicitors and therefore not disclosed or produced. His contemporary letters provide almost no assistance to recollection.
  40. It is apparent from the transcript during and after her evidence that the judge had formed a critical view of the conduct of S J Berwin in making disclosure, and he also said, implying that it had not been appreciated, that the originals of conveyancing files should always be brought to court. In fact the original S J Berwin file was in court, and the criticism that might have been legitimate is that the file should have been vetted so as to remove or conceal privileged documents which ought not to have been open to inspection by the court or the Defendant. As a result, when the judge did read it, before asking some questions himself of Ms Amin, Ms Windsor had to try to make the point to him that there might be privileged documents in the file (as indeed, from the documents put in on the appeal, it is clear that there were), an attempt which drew criticism of her. The judge's attitude on this seems likely to have influenced his view of S J Berwin and to have contributed to the criticisms he expressed of them in his judgment, even though that was on a point which was not mentioned during the hearing.
  41. The evidence of the Defendant

  42. The Defendant gave evidence during the first day of the hearing. The judge did not make express reference to his reliability in the course of his judgment, in contrast to the serious doubts he expressed about Ms Amin and about Mr Mendis. It is therefore not clear whether and to what extent he found the Defendant a reliable witness. He did accept that the Defendant was given access to the Flat on 2 August, and that is not now challenged. But his evidence about other matters in issue seems to me a good deal less clear and satisfactory. I will summarise it in relation to the two main issues: the date on which the agreement was entered into, and the authority of Mr Mendis. To that latter issue is also relevant the question of his understanding of the intended transaction, so I will touch on his evidence about that.
  43. Taking that question first, he was asked early on about the basic nature of the transaction as it had been discussed and agreed in principle. He did not accept that it was a fixed term lease; he said there was every prospect of a renewal so that, in effect, it was not limited to the term stated, though he accepted that there would be a negotiation of new terms, including rent. He said he had no knowledge of what an assured shorthold tenancy meant, though in his witness statement he had said that his expenditure on the Flat was incurred on the basis that he had an assured tenancy and not an assured shorthold tenancy. He accepted that he read the letter from Conrad Ritblat dated 20 June which speaks of an assured shorthold tenancy, but said he did not know what was meant by that nor did he ask anyone to explain. He said that he saw that phrase on the front of the tenancy agreement, and in clause 6.12, but still did not know what it meant, and did not ask Mr Mendis to explain, nor had he explained it, though he accepted that he did discuss the tenancy agreement with Mr Mendis on one or two occasions before it was signed. Not even then did it occur to him to ask Mr Mendis what was meant by the phrase.
  44. He was asked some questions which went to the extent of the authority given to Mr Mendis. He said in his witness statement that he did not instruct or authorise Mr Mendis to receive notices on his behalf. In cross-examination he accepted that he had put into Mr Mendis' hands the legal part of the lease, having negotiated all the commercial terms himself. He denied at one point that it was up to Mr Mendis to deal with completion, though he later accepted that it was Mr Mendis who had done the completion. There may have been a misunderstanding here, since he referred to himself having "signed and completed", thereby perhaps meaning something other than the arrangements that were made with Ms Amin as regards what lawyers might regard as completion. His line was that it was up to him to negotiate the terms, for Mr Mendis to deal with the documentation with S J Berwin, and then for him to decide whether or not to go ahead with the transaction, at which stage he authorised and instructed Mr Mendis to deal with the formalities of completion. He accepted that he read the first draft lease and discussed it with Mr Mendis; he denied at one point having seen a second draft lease, though he remembered having a discussion with Mr Mendis on 28 July and at another time he spoke of having approved what he called the final draft. He also said that there had been about five changes to the draft agreement that he wanted which, on his instructions, Mr Mendis wrote to S J Berwin about. There is no such letter. Later he identified these changes as being the points which S J Berwin had explained to Mr Mendis by Ms Amin's letter of 27 July, which were not, of course, changes that he had wanted, but rather changes required by the Claimant to which he was prepared to agree. He said that, having approved the form of the lease and signed the engrossment, he said to Mr Mendis: "I approve this lease, this is my signature, complete it now, send it to them, get the keys".
  45. So far as the actual completion is concerned, he said that, having approved the final draft agreement on 28 July, he told Mr Mendis to call for the original for signature, and that he went to Mr Mendis' office to sign it on 1 August, he did sign it then and there and told Mr Mendis to telephone at once for completion and to get the keys, and that a telephone conversation did then take place between Mr Mendis and Ms Amin, while he was still in Mr Mendis' office and that it was then that Ms Amin confirmed completion on the telephone. He admitted that he did not hear what Ms Amin said during the conversation, but said that, after it, Mr Mendis had told him that she said he should go to the property and collect the keys from the reception. He mentioned several times in his evidence that Ms Amin confirmed in her witness statement that completion took place on the telephone on 1 August. This must be a reference to paragraph 14 of her second witness statement, which ends "completion then took place over the telephone", but it is perfectly clear that she is describing what took place on 4 August, not on 1 August. The Defendant had misread the witness statement, which does not support his evidence in any way, just as he had misremembered the point about changes to the terms of the tenancy agreement, as mentioned in paragraph 36 above.
  46. Those aspects of his evidence are examples of a tendency on his part to rely on documents, or indeed on the absence of documents. When cross-examined about the form and content of the tenancy agreement he went off on a tangent about why the notice had not been incorporated into the agreement. At other times, when asked about whether something had been said, he challenged Ms Windsor to point to a document in which it was recorded. To take another example, he was shown Mr Mendis' note on his file cover of what documents had been collected by the Defendant on 21 July, and he pointed out that it does not record him as having collected any form of section 20 notice, and went on to comment that this implied that the form of notice had not been sent.
  47. The Defendant gave some evidence about the issue of business use of the property. In his witness statement he said that he intended to use the flat as an office as well as a residence, and had told Conrad Ritblat that he would use at least one of the rooms as an office. He also said that he would not have entered into the tenancy had business use been prohibited. In oral evidence he said that when he saw Mr Mendis and approved the final draft of the lease, which he thought was on 28 July (which fits with Mr Mendis' letter of that date), he had told Mr Mendis that it was fine, "it's residential, they're messing around with the office use, forget it, at the end of the day I'm going to live there anyway, where I use one room as my communications and one room my study, it's my business". Later he came back to that theme, and said that he had already decided he would take the tenancy anyway, and that the question of the side letter was not important because he could always use one room as his study, with a fax and with a secretary coming in. That does not seem consistent with Conrad Ritblat having spoken to him on 31 July or 1 August (see paragraph 20 above) in order to be able to answer the query from the Portman Estate, nor with Mr Mendis having asked in his letter of 1 August for a copy of the side letter. Later he said he intended to live there and run his business from there, but then he qualified that by reference to the degree or kind of use. He also said that he knew "in the last minute" there would be no office use but he could use one room as a study, which was good enough for him and why he accepted it. That looks like a reference to Ms Amin's letter to Mr Mendis of 3 August. It was put to him that he was aware after 1 August that discussions were going on with Portman Estate about the business use. He denied knowing about it, or that there was anything to discuss, though he did say that "they" were supposed to send a letter, which he said was standard practice for the Portman Estate.
  48. As I have mentioned, he gave evidence that he got an access card to the property on 1 August and keys to the Flat on 2 August, and went into the Flat on that day, though he did not move any substantial possessions in until the van arrived on 4 August. He said in cross-examination that he went to the property on 1 August after the conversation between Mr Mendis and Ms Amin on which I have already mentioned his evidence, and after being told by Mr Mendis that Ms Amin had said the keys would be released to him. There he saw Mr Bescoby, and asked for the keys. He was given the access cards to the property on that day, but Mr Bescoby said he must come back the next day for the keys to the Flat. According to him the reason given was that Mr Bescoby had to check with S J Berwin that they had received his part of the agreement. He said much the same several times, that Mr Bescoby refused to give him the key to the Flat because his part of the lease had not yet got to S J Berwin, and that only when he knew it had would he be able to release the key to the Flat to the Defendant.
  49. As regards the events of 4 August, he accepted that there was a difficulty getting in, and that he had telephoned Mr Mendis to check what was happening. He said that he asked Mr Mendis to get on to the telephone to S J Berwin at once, because he wanted to be able to unload his possessions from the van, and was not prepared to wait for longer than an hour. He referred in his evidence to S J Berwin's fax to Mr Mendis, and said that Mr Mendis must have replied at once because of the urgency of the situation as he had explained it to Mr Mendis. Later he referred again to the exchange of faxes and said of Mr Mendis' fax confirming receipt of the notice: "that was purely to get my van unloaded". Later still he referred again to the problem with the van on 4 August, attributed it to Mr Bescoby being worried that he might be bringing in office equipment, and that he might therefore be breaking the covenant about residential use, and also to Mr Bescoby resenting the Defendant's having got the lease of the Flat which he himself had previously used.
  50. The evidence of Mr Mendis

  51. Mr Mendis had made two witness statements, both of them brief. Neither referred to any telephone conversation with Ms Amin, nor in any way to the process of completion. He did say, in his supplemental witness statement, that to the best of his recollection no draft section 20 notice was sent with the letter of 18 July, and that he understood that no such document was in his file. It is understandable, since Ms Amin did not herself refer to her letter of 31 July, that he did not do so either. Accordingly he said that the first time he saw a section 20 notice was on 4 August. His cross-examination covered a number of points: his instructions and authority from the Defendant, what advice he had given his client about the nature of the tenancy, his dealings with Ms Amin, and what communications he had received from her. It is fair to say that his oral evidence is not consistent on a number of points, which makes it more difficult to summarise, and also, of course, more difficult to assess its overall effect, at any rate on those points, merely from the transcript.
  52. As I have mentioned above, he said that the file of his that had been produced in court, and made the basis of disclosure, was not his only file. As regards the other file, he said it was his practice to keep draft papers in a separate file, and that his notes, including notes of his instructions and attendance notes, would have been kept there, but that it was also more than likely that some letters from S J Berwin had been placed in that other file as well.
  53. He was clear in his oral evidence that he had explained to the Defendant the nature of an assured shorthold tenancy. This is a point on which he was consistent throughout his oral evidence, including re-examination. In part of his evidence he said he was not sure whether he had explained about the necessary notice under section 20, but later he accepted that he must have done, and he held to that in re-examination.
  54. He accepted, of course, that he had received Ms Amin's letter of 18 July and the enclosed draft tenancy agreement, but maintained that he had not received any draft section 20 notice with that letter. His reasons for saying that he was sure of this, however, were rather odd. His reason was, essentially, that she had sent him a notice on 4 August and that there would have been no point in sending a draft, or a blank form, on 18 July. The letter of 18 July does mention that a form of notice is enclosed, and he accepted that he did not follow it up, if there was no such enclosure, by asking for it to be sent.
  55. As regards the extent of his authority from the Defendant, he accepted that his instructions were to deal with the legal formalities and complete the matter (once the Defendant was satisfied with the terms), that the Defendant had not told him there was anything that he was not to do, and that accordingly he understood that he had authority to do whatever was required to complete the tenancy agreement.
  56. So far as the section 20 notice was concerned, he said in evidence that it had to be served on the Defendant, not on himself, but that he never said so to Ms Amin, and that he gave her the impression that he was instructed to deal with all matters leading up to completion of the agreement.
  57. Ms Amin's letter of 31 July is not in the file of his which was produced at the hearing. He said in cross-examination that he did not believe he had received it, and did not recollect it. He accepted that he had received the engrossment, but said he thought that came later, on 1 August, though there was no sign of a covering letter. He would not accept that he had received a section 20 notice with the letter.
  58. So far as the question of completion is concerned, he said that on 1 August he regarded it as concluded, but that on 3 or 4 August Ms Amin phoned him to say there would be changes. Pressed with his letter of 1 August, asking for the landlord's part of the agreement, the side letter and the keys, he said he thought it would have been concluded on 1 August, but accepted that he was hoping for this. Then he said that he had phoned her on 1 August and she had said that the keys would be released to the Defendant. He was then pressed with Ms Amin's letter of 3 August, and with the proposition that they had had some telephone conversations on 4 August, in the course of which the transaction was completed, and he apparently accepted that; later he went back to saying that he thought it was finalised on 1 August, but that she had then changed her mind, but after that he seemed to accept that he had regarded the matter as concluded only on 4 August. In re-examination he was asked about his telephone conversation with Ms Amin on 1 August. He said that he had said to her that he could now complete and she agreed. He could not recall whether anyone else was present in the office at that time. He did recall telephoning the Defendant to tell him of this and asking him to collect the keys.
  59. So far as the events of 4 August itself are concerned, he accepted that by then the Defendant was happy with the transaction and wanted the transaction finalised as soon as possible in order to get into the Flat. He was not surprised to receive a section 20 notice on that day, and though he said it should not have been sent to him, he never pointed this out to Ms Amin. The Defendant never told him that he should not receive such a notice on his behalf. He accepted it because it was his duty to do so. Then, late in his cross-examination, he volunteered that he had mentioned the section 20 notice to the Defendant on 4 August. At that point the Defendant was "stuck to go in" and phoned him at least twice. It was then that he told the Defendant that he had received the notice. The Defendant did not say he was not to accept the notice on his behalf. It was put to him that what the Defendant said was to the effect of "Do whatever you can to get me into this property quickly", and he said that might possibly have been the gist of what the Defendant had said.
  60. The judge's findings, and his assessment of the witnesses

  61. The judge made a number of findings of fact, not limited to those strictly necessary for his decision. He held that Ms Amin did not enclose a draft or blank form of section 20 notice with her 18 July letter. He held that no section 20 notice was sent with the letter of 31 July, though he accepted that the letter was posted. He held that Ms Amin was wrong when in her witness statement she said that she did not receive the Defendant's signed agreement until 4 August, which she had in fact received on 1 August. He found that the Defendant had moved in as a tenant on 2 August. As to what happened on 1 August he said this:
  62. "I have to infer that Ms Amin, believing that all was satisfactorily settled on 1 August 1995, and probably having had other telephone conversations with Conrad Ritblat, authorised the Defendant's entry on 1 August 1995 as a tenant without appreciating or remembering the need for a section 20 notice to be first served on the Defendant. Only on 4 August 1995, when a hiccup arose about the Defendant taking computer equipment into the premises, did she seek to rectify that situation by faxing a section 20 notice to Mr Mendis."

  63. He also held that when Mr Mendis replied as he did on 4 August he was acting without instructions and did not understand what he was doing. On the basis of the findings already mentioned, he said he was satisfied, albeit with hesitation, that a tenancy was entered into on 1 August and that it was an assured, not an assured shorthold, tenancy. He also went on to accept the Defendant's evidence that he gave no authority to Mr Mendis to accept a section 20 notice on his behalf (even if, contrary to his finding of law, such a notice could be served on an agent) and that merely instructing a solicitor to handle the paperwork aspects of a tenancy was insufficient to allow an inference to be drawn that the solicitor had implied authority to accept the notice on the Defendant's behalf. He also held that Mr Mendis had not told the Defendant about the notice received on 4 August and, for good measure, doubted whether he gave any adequate explanations about the nature of the tenancy to his client the Defendant.
  64. He said nothing by way of general comment on the Defendant as a witness. As regards Ms Amin and Mr Mendis he was highly critical, though in different ways. He started the passage in his judgment which sets out his comments by saying that they both troubled him as to their reliability and their honesty. What he goes on to say about Mr Mendis does not explain a reference to doubtful honesty in his case. He is said to have been a polite witness with a tendency to agree with any proposition put to him. I can understand from that a doubt about Mr Mendis' reliability, but not as to his honesty. As to Ms Amin, the judge did say that he believed she had sought to distort the truth; the point identified was as to whether she really could, at the trial, remember signing and enclosing a section 20 notice with her firm's letter of 31 July.
  65. Though it is not directly a comment on a witness, the judge made the extraordinary finding that the blank notice form, which, at the time of the trial, was contained in S J Berwin's original conveyancing file as produced at the hearing, had been inserted in the file after the preparation of the list of documents. Since Ms Amin had by then left their employment, it cannot have been thought to have been done by her. He did not say the same about the notice dated 31 July, and I must therefore assume that he did not regard that document as a late fabrication, and that his finding was only that, although it was prepared at the time, Ms Amin did not in fact include it with the letter of 31 July which, he accepted, she did write and have posted that day.
  66. The judge's conclusion about the blank form is, I have to say, an extraordinary comment for him to have made at all, and especially in the circumstances. It amounts to finding the firm of S J Berwin guilty of seeking to mislead the court and for that purpose of fabrication and dishonesty. At no point during the hearing had he or Mr Thomas or anyone else suggested that this might have happened. If it had been, and the suggestion had not been withdrawn, it would have been necessary to afford S J Berwin the opportunity to give evidence on the point, and to Ms Windsor to make submissions about it. It is extremely improbable, not only because of the inherent unlikelihood that a firm of solicitors would fabricate a file in this way, but also because the blank notice form is of very little intrinsic importance to the case. The judge's comment is based on an assumption that, if the blank form had been present on the file when disclosure was given, its relevance would have been appreciated and therefore it would have been disclosed. That overlooks the point, which Ms Windsor would no doubt have made if given the chance, that lists of documents were served on 5 June, at a time when the only issues of fact discernible from the statements of case were whether Mr Mendis had authority from the Defendant to receive a section 20 notice on 4 August and whether a notice was in fact served on Mr Mendis on that date. There would therefore have been no reason to think that the blank form enclosed with the 18 July letter would in itself be relevant. It might be said that, since the letter was disclosed, so should its enclosures have been. Even if that is a legitimate point, the remedy would have been for the Defendant to ask for disclosure of the documents enclosed, and they would no doubt have been produced. The judge's conclusion that the form cannot have been on the file at the time of the list seems to me wholly unwarranted - even if it should have been disclosed the explanation for it not having been disclosed is far more likely to have been inadvertence than it not having existed, and therefore having later been fraudulently concocted. I have mentioned that the judge expressed serious disquiet about disclosure on the part of S J Berwin during the hearing (though not on this point) and it seems to me that his adverse reactions in this respect coloured his view of what the firm had done and also of Ms Amin, their former employee (she had left the firm some time before the trial), and did so unfairly and without justification.
  67. On one point his rejection of her evidence is based on a plain mistake on his part. He said that she had said in her witness statement that she did not receive the Defendant's signed agreement until 4 August whereas it was clear that she had it on 1 August. In fact what she said in her witness statement was that she did not receive the Claimant's part of the agreement until 4 August. The evidence indicated that this reached her firm on 3 August but she said she did not see it until the following day. A curious thing about this mistake is that, in the course of Ms Windsor's final submissions, the judge expressed exactly the same mistake but then corrected himself. By the time he gave judgment, however, he had forgotten that this impression was a mistake, and he therefore condemned Ms Amin quite wrongly for false evidence on this point.
  68. The judge referred to Ms Amin as "feisty and unduly aggressive". Of course that is very much a matter of impression from seeing the witness. It is true that neither she nor the other two principal witnesses always answered precisely the questions put to them with relevant material and nothing else. Judging from the transcript both the Defendant and, from time to time, Mr Mendis were at least as prone to this as she was. For all that the judge indicated that Mr Mendis was highly suggestible, he too had a way of answering a question with irrelevant material or argument, such as how he dealt with the question as to why he was certain that no blank form had been sent on 18 July, and his digressions into the need to serve the section 20 notice on the tenant personally.
  69. Appeals on fact: principles

  70. For the Claimant's appeal to succeed, I must be satisfied that the judge was wrong in his finding that a tenancy was entered into on 1 August, and that Mr Mendis had no authority from the Defendant to accept a notice under section 20 on his behalf, as well as that he was wrong on the issue of law, so that section 20 permits a notice to be served on a duly authorised agent. I will come to the issue of law later, but the appeal on the issues of fact requires me to reject the judge's findings of fact, made after seeing the witnesses, and in circumstances in which it is clear from his judgment, supported by comments during argument, that his impression of the witnesses was important to him. Mr Brock therefore faces a challenging task on the appeal.
  71. He submitted that, with the introduction of the new regime for appeals in May 2000, in CPR 52, the position has changed. The appeal is to be allowed if the appeal court thinks the judgment below was wrong: CPR 52.11(3)(a). Permission is now required for every appeal (with exceptions not now relevant). He submitted that, once permission has been given, the appellant's task on the appeal is simply to persuade the appeal court that the finding of fact was wrong. That, however, always was the task of an appellant on fact: see Colonial Securities Trust Co Ltd v. Massey [1896] 1 QB 38 at 39. It can be a difficult task, because of the nature of the exercise. I see no reason why the imposition of a requirement for permission should have altered the nature of the appeal once permission is given. In my judgment it has not.
  72. Appeal courts have often had occasion to comment on the nature of the task facing them where a judge's findings of fact are challenged. No cases were cited to me on this, but they are familiar. In the course of preparing this judgment I have reminded myself of the principles, by reference to the following cases (as well as that already cited): The Glannibanta (1876) 1 PD 283 at 287; Coghlan v. Cumberland [1898] 1 Ch 704 at 704-5; SS Hontestroom v. SS Sagaforack [1927] AC 37 at 47-8; Powell v. Streatham Manor Nursing Home [1935] AC 243 at 249-250 (with a particularly illuminating quotation from Clarke v. Edinburgh Tramways 1919 SC (HL) 35 at 36); Yuill v. Yuill [1945] P 15 at 19-20; Watt or Thomas v. Thomas [1947] AC 484 at 486-8; Benmax v. Austin Motor Co [1955] AC 370 at 375 (a patent case about obviousness to which Biogen v. Medeva [1997] RPC 1 at 45 should be seen as a supplement on this point, and see also, most recently, Designers Guild Ltd v. Russell Williams (Textiles) Ltd [2001] 1 All ER 700 at 707 and 718); and Akerhielm v. De Mare [1959] AC 789 at 806. Differences arise according to whether the question is truly one of primary fact or wholly or partly one of inference, and also as to whether the credibility of the witnesses is a factor. The present case is at or near one extreme: the question (at any rate as to what happened on 1 August) is largely one of primary fact, and the credibility of witnesses was at issue and the judge formed and expressed views on this. It might be said that, since he doubted the reliability of both the professionals involved, he had little basis for a finding inconsistent with the undisputed documents, but the credibility or otherwise of Ms Amin and Mr Mendis was obviously important for him in deciding what took place on 1 August. That being so, having reminded myself of the guidance set out in the cases referred to above, I put to myself, by way of summary of that guidance, the question commended by Lord Shaw in Clarke:
  73. "Am I, who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case, in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong?"

    If I cannot come to that conclusion, the appeal cannot succeed on the questions of fact.

  74. The one feature of this appeal that is new derives not from the CPR themselves but from the new regime as regards the destination of appeals, referred to at paragraphs 1 and 2 above. This appeal, like many others, comes before an appeal court consisting of a single judge, rather than two or three judges in the Court of Appeal, and a further appeal is only possible in very restricted circumstances: see the Access to Justice Act 1999 section 55. That is the decision of Parliament, and the parties are entitled to the decision of the appeal court judge according to the best judgment and conscience of that single judge. However, it does seem to me that, on an appeal which lies from one judge who has seen the witnesses to one judge who has not, rather than to the collegiate body of the Court of Appeal, where the appellant, to succeed, has to persuade at least two judges of the merits of the appeal, the single appeal court judge should be even more careful than one of several judges would be about differing from the views of the judge in the lower court who found the facts based on the evidence of the witnesses who gave evidence.
  75. Did a tenancy come into existence on 1 August?

  76. The judge's finding was that Mr Mendis and Ms Amin had a telephone conversation on 1 August, in the course of which they agreed that the tenancy should start immediately and that the Defendant could have the keys at once. Of course there was some evidence from Mr Mendis which supported that conclusion, and also some from the Defendant, though his evidence was in fact inconsistent in detail with that of Mr Mendis. As against that, this was a case which had never been thought of or mentioned before the hearing, and which was therefore never put to Ms Amin. That would in itself give rise to a doubt as to its credibility, and as to the appropriateness of disbelieving Ms Amin on a point not put to her. Moreover, the circumstances that existed on 1 August, and were common ground, must cast doubt on that conclusion. Ms Amin did not then have in her possession her client's part of the agreement. Since she was not cross-examined on this aspect of the case, there is no proper basis for suggesting that she had been told by 1 August that the Claimant was content to enter into the agreement at once. The judge referred to her evidence that she spoke almost daily to Conrad Ritblat (Mrs Tack), but since neither she nor Mrs Tack was cross-examined about those conversations, it cannot have been right for the judge to rely on them for any relevant finding. The judge said that, at the time of the phone conversation with Mr Mendis on 1 August, she had forgotten the need to serve a section 20 notice before the tenancy was entered into. That is a very odd conclusion on the documents. The judge accepted that the letter of 31 July was genuine and was posted on that day. In that letter she expressly referred to a section 20 notice as being enclosed and asked that its receipt be acknowledged on behalf of the Defendant and, even if she had not enclosed the notice, she had prepared it and placed a copy in the file. His conclusion involves her having forgotten on 1 August the point to which she was plainly alive on 31 July, and of which she was again aware on 4 August. He does say that this kind of transaction was novel to her, that she was working under pressure of work and had inadequate secretarial support. However, her correspondence shows that she was taking particular care with this transaction, and while this may have added to her pressure of work it does not justify an inference that she had overlooked so important an element of the transaction. She clearly knew about the need for a section 20 notice, as appears from her 18 July letter, from the terms of clause 6.12 of the tenancy itself, and from her letters of 31 July and 4 August. It seems bizarre to suggest that on Tuesday she had forgotten or overlooked what she plainly had in mind on the Monday and the Friday.
  77. Moreover, the finding that she did authorise the Defendant to enter the Flat as a tenant is inconsistent with a feature of the Defendant's own evidence, namely that he was not allowed the keys to the Flat until 2 August, and as to the reasons for this. On the Defendant's case, the transaction was complete on 1 August and he was to be allowed the keys at once. However, all he got on that date was access to the premises as a whole, not the Flat. As regards the Flat, Mr Bescoby told him he had to wait until the solicitors authorised him to be allowed in. The reason he said had been given by Mr Bescoby was that his part of the lease had not been received by the Claimant's solicitors. That does not seem likely, since we know that it was received during 1 August. It may be that the true reason was something else, but at any rate so far as Mr Bescoby was concerned the Defendant was not to be treated as a tenant on 1 August, and that seems to have derived from something said to him by Ms Amin - again not something put to her in cross-examination.
  78. Another reason for questioning the theory of completion on 1 August is Mr Mendis' willingness on 4 August to go through the procedure that would be appropriate for completion on that date, and for the tenancy agreements to be dated that day, without demur. No suggestion has been made at any stage that the agreement should be rectified so that it should bear the date 1 August and, more substantively, that the dates in clauses 3 and 4.2.1 should be calculated by reference to 1 August rather than 4 August.
  79. From near the beginning of the trial the judge indicated clearly and consistently that he regarded the question of possible business use of the Flat as an irrelevance, and he strongly discouraged Ms Windsor from exploring it in evidence or submission. On the statements of case as they stood that attitude is fully understandable, since there was no allegation of a tenancy entered into before 4 August. However the relevance of the question emerged as the Defendant's case for a contract before 4 August emerged. As mentioned in paragraph 30 above, Ms Amin was clear in her evidence that on 1 August there were two things that prevented her from concluding the agreement at once: she had not got her clients' part of the agreement back from them duly signed, and the question whether the Defendant's intended business use was consistent with the Claimant's lease from the Portman Estate had not yet been resolved. In the end the latter was not a problem, but on 1 August it was envisaged that a side letter would be needed and used. On that day Mr Mendis, in his letter to Ms Amin, asked her to send him the side letter, with the Claimant's part of the agreement and the keys. On that or the previous day Conrad Ritblat had spoken to the Defendant about his intentions: see paragraph 20 above. Accordingly the Defendant's evidence that this issue was of no importance already before 1 August cannot be right. The judge's observation that the side letter "appeared irrelevant to the grant of the tenancy" is not a fair comment in relation to the position as seen by either Ms Amin or Mr Mendis on 1 August. His comment, a few sentences before, that the Defendant knew nothing of the letters written on 3 August also fails to take into account the fact that it seems to have been from Ms Amin's letter of 3 August that the Defendant learned that the office use was no longer a problem: see paragraph 39 above.
  80. Ms Amin's evidence was that no conversation took place between her and Mr Mendis on 1 August. At that stage the importance of that evidence was not so apparent as it became later, since neither the Defendant nor Mr Mendis had mentioned such a conversation, let alone advanced a case that it included the entry into the tenancy agreement. The judge's finding of fact involved rejecting her evidence on this, and making findings of extraordinary conduct on the part of a conveyancing solicitor, on a basis which had never been put to her. His unfavourable view of her evidence was of course partly based on her demeanour and response when under cross-examination. However it was undoubtedly also influenced by his error which I have referred to in paragraph 56 above. It seems to me that it is likely (at the very least) to have been influenced by his very critical view of her former employers, S J Berwin, which I have described and discussed in paragraphs 54 and 55 above.
  81. He expressed serious doubts as to Mr Mendis' reliability as well, so it might seem that the latter's evidence provides a slender basis for a finding that completion took place on 1 August. Accepting that there is a good deal of confusion within Mr Mendis' evidence as to how he regarded the position on and after 1 August, it seems to me that it is indeed difficult to regard his evidence as any solid support for a finding of completion on that date, which is inconsistent with the way he dealt with things thereafter. The judge's finding in this respect could only be based on the view that Mr Mendis did not really know what he was doing at any stage. He did of course express reservations as to this, but I find it difficult to see what the justification was for this, of someone who had been a licensed conveyancer for some years and before that a barrister. But even if his evidence is viewed in this disparaging light, that does not create a substantial case for the Claimant to answer. In turn, the Defendant's evidence on this particular aspect was of little assistance to the court. His evidence as to a relevant telephone conversation on 1 August was plainly an afterthought, not having been mentioned, even to his own solicitors and Counsel, earlier, and it was quite confused. Moreover, on his own evidence, whatever happened on 1 August did not give him immediate access to the Flat until 2 August, so that it is the more difficult to justify a contention that whatever happened on 1 August made him a tenant at once.
  82. Accepting that the experienced judge had the privilege of seeing and hearing the witnesses, whose evidence I can take only from the transcript, I have nevertheless come to the conclusion that his findings on this issue were plainly wrong. It seems to me that he did not derive the assistance that he could have done from seeing the witnesses, because he was led astray by errors in relation to the evidence given. He made the mistake mentioned at paragraph 56. He came to the extraordinary and unwarranted conclusion mentioned in paragraphs 54 and 55. His finding is undermined by his incorrect view that the question of the business user of the Flat, which was still outstanding and unresolved on 1 August, was of no significance. He failed to take account of the fact that the case as to completion on 1 August emerged as a very late afterthought and was not put to the Claimant or its witness Ms Amin. He was influenced by a critical view of the conduct of the Claimant's case, which failed to have regard to the late emergence of any relevant issue of fact in the case at all other than that of Mr Mendis' authority. Even his rejection of Ms Amin's evidence that she could remember signing and enclosing a section 20 notice in the letter of 31 July does not of itself justify a finding that no such notice was sent with the letter. The absence of the letter and notice (and indeed of the blank or draft form of section 20 notice as regards the 18 July letter) from Mr Mendis' file could well be explained, as Mr Mendis accepted, by them being in the other file which had not been produced. The only plausible explanation for Mr Mendis having received the engrossment of the agreement was that it came under cover of the 31 July letter. That being so, and a section 20 notice being referred to in the letter, the natural assumption would be that the notice was indeed sent, especially as such a notice existed in the file. As mentioned above, in paragraph 54, the judge did not say that he regarded this document as a forgery or late fabrication. It follows that the judge's findings amount to this: Ms Amin prepared the letter, and posted it, she prepared the engrossment of the agreement, and included it with the letter, she prepared the section 20 notice for inclusion in the letter, and put a copy into the file, but unaccountably she failed to enclose that one document with the letter. Whether or not she could consciously remember that process in detail, the overwhelming probability is that she did enclose the notice with the letter, and therefore that a section 20 notice was served no later than 1 August. It is clear that the mere fact that the Defendant was allowed access to the Flat before 4 August does not show that he moved in as a tenant. In such a situation, access to or occupation or use of property in advance of a formal agreement which is about to be finalised can in law be attributed to a licence, and this is a much more likely explanation for it than an informal tenancy.
  83. Mr Pymont argued that the only explanation for the Defendant being allowed in on 2 August which was consistent with Ms Amin's evidence and that of Mr Hack about the Claimant's policy as regards keys was that a tenancy had been entered into. Certainly their evidence was that the landlord's policy was not to let people have access in advance of a formal tenancy, but it does not follow that there may not have been exceptions, whether deliberately or by mistake. At all events, the fact of access being allowed does not of itself prove that an agreement was come to for the creation of a tenancy, and an examination of the evidence directly relevant to the question of when a tenancy was entered into shows, as I have indicated, that no tenancy agreement was entered into until 4 August.
  84. For these reasons I conclude that the judge was wrong to find that a tenancy agreement was entered into on 1 August at all, and also wrong to find that a section 20 notice was not served on Mr Mendis no later than 1 August, under cover of Ms Amin's letter of 31 July. Though it does not matter directly as regards the result of the case, I also hold that his finding that she did not enclose the blank or draft form of section 20 notice with her letter of 18 July was incorrect.
  85. Mr Brock also relied on a point of law in relation to the argument in favour of a tenancy made on 1 August. The documents which are dated 4 August are executed under hand only, not as deeds. They take effect as an agreement. The term of the tenancy was for over five years. It was therefore not such a lease as could take effect otherwise than by deed, which must be one taking effect in possession and for a term not exceeding three years: see Law of Property Act 1925 sections 52(1), (2)(d) and 54(2). Therefore, in the absence of a deed, a valid tenancy could only take effect in equity, under a valid and specifically enforceable agreement. On the Claimant's case, what happened on 4 August amounted to the creation of a valid agreement for lease, made in writing and so satisfying the Law of Property (Miscellaneous Provisions) Act 1989 section 2. On the Defendant's version, accepted by the judge, what happened on 1 August could not amount to such an agreement, because it was not in writing, and therefore was void. That is another reason for holding that a tenancy was not entered into on 1 August. A defence under section 2 might be open, in appropriate circumstances, to a response by way of estoppel or constructive trust (see Yaxley v. Gotts [2000] Ch 162 and Shah v. Shah [2001] 3 WLR 31). No such case was put, nor could it have been without pleadings. Since not even the Defendant's case of an agreement on 1 August was pleaded, it seems to me that the Defendant could not fairly seek to rely (not that Mr Pymont did) on the theoretical availability of such a plea as an answer to this aspect of the Claimant's appeal. I can see no answer to this proposition. But my main reason for holding in the Claimant's favour on this aspect of the case is that the judge's findings of fact were plainly wrong.
  86. Can a notice under section 20 of the Housing Act 1988 be validly served on the prospective tenant's agent?

  87. Having held that a tenancy agreement was not entered into until 4 August, it is clear that a section 20 notice was served on Mr Mendis before the agreement was concluded. That then raises two other questions, both of which the judge also decided adversely to the Claimant: does the Housing Act 1988 permit the service of a notice under section 20 on an agent for the tenant, or does it require personal service in all circumstances, and, if service on an agent is permitted, was Mr Mendis duly authorised so as to be the Defendant's agent for this purpose? I will address the point of statutory construction first.
  88. The relevant words of section 20 are these:
  89. "(1) . an assured tenancy . is an assured shorthold tenancy if

    (a) ..

    (b) ..

    (c) a notice in respect of it is served as mentioned in subsection (2) below.

    (2) The notice referred to in subsection (1)(c) above is one which

    (a) is in such form as may be prescribed;

    (b) is served before the assured tenancy is entered into;

    (c) is served by the person who is to be the landlord under the assured tenancy on the person who is to be the tenant under that tenancy; and

    (d) states that the assured tenancy to which it relates is to be an assured shorthold tenancy.

    ..

    (6) In the case of joint landlords

    (a) the reference in subsection (2)(c) above to the person who is to be the landlord is a reference to at least one of the persons who are to be joint landlords;"

  90. The prescribed form allows expressly for the notice to be served by an agent on behalf of the landlord, but says nothing about an agent for the tenant. It is addressed to the tenant as "you". Among the opening words of the notice is advice to the tenant that "if there is anything that you do not understand, you should get advice from a solicitor or Citizen's Advice Bureau before you agree to the tenancy."
  91. There is no doubt that, as a matter of general law, notices may be served by and on agents as well as by and on the principals, whether the notice is to be served by landlord on tenant or by tenant on landlord. In the context of assured shorthold tenancies, it would be common for landlords to have an agent acting for them, but it must be fairly uncommon for the prospective tenant to have an agent. This agreement was unusual as regards its duration as well as its complication. The question of service on an agent acting for the prospective tenant is therefore probably one that would arise only rarely in fact.
  92. Mr Pymont showed me the decision of the Court of Appeal in Manel v. Menon [2000] 2 EGLR 40, where a notice under section 20 was held to be invalid where it omitted the advice which I have quoted in paragraph 74 above and three other items of advice to the tenant set out at the beginning of the prescribed form of notice. A document omitting those parts was not "substantially to the same effect" as one in the prescribed form. The court said that the notice was an important safeguard for the prospective tenant, and said that persons likely to be offered tenancies of properties of low rateable value (to which such tenancies will often be relevant) "were also likely to be unable to assess for themselves the full legal and practical consequences of taking" the tenancy. It is consistent with this that the notice must be served on all of any intended joint tenants, whereas it may be served by one of several intended joint landlords. Mr Pymont submitted that this function of the notice as a safeguard and protection for prospective tenants would be diluted or undermined if the notice could be served on an agent, who might well not be a professional whose task it would be to ensure that the tenant did understand the nature of the transaction.
  93. Mr Brock, on the other hand, relied on Galinski v. McHugh [1989] 1 EGLR 109, where a notice under section 4(1) of the Landlord and Tenant Act 1954 which had to be "given to the tenant" was held to have been validly served on his solicitor, as his agent, despite there being statutory provision expressly contemplating service by the landlord's agent and none dealing with service on the tenant's agent. The Court of Appeal recognised that sometimes a statute expressly requires personal service - an example is the Compulsory Purchase Act 1965, section 30(1). In the absence of such a provision the court could see no good reason for regarding service on the tenant's duly authorised agent as being outwith the scope of the section. The provision referring to a landlord's agent was explicable simply because it was more likely to be relevant on the facts, and it did not show that service on the tenant's agent, where one existed, was not to be valid.
  94. The essence of Mr Pymont's submission is that the importance of the notice to the tenant is such that its statutory function would be subverted if it did not have to be served on the tenant himself. He said that it was far more important than the other types of notice which have featured in the decided cases cited to me, and therefore the conclusions reached in those cases were not a reliable guide to the proper reading of section 20. I do not accept that argument. I find nothing in the section which suggests that, in those rare cases where a person who is about to enter into an assured shorthold tenancy as tenant has agents acting for him (for example a solicitor or a surveyor), the necessary notice cannot properly be served on that agent. Of course the question of the scope of the agent's authority will always need to be addressed, but if it is found to be wide enough, I can see no reason why the statute should be supposed to have required the notice to by-pass the agent and go to the tenant in person. Where (as here) the would-be tenant does use a professional to act for him, for good reason, that person should be capable of explaining the transaction and of passing the notice, or its effect, on to the principal, and it would only be an inconvenience to the principal to require the landlord to take the extra time to serve the notice on him, and therefore to make himself available to receive the notice, before the tenancy can commence. By way of illustration, in the present case, it would certainly have delayed the moment when the Defendant's van could be unloaded if he had either to wait for the landlord's notice to be served on him at an address where he was to be found, or had to present himself at either Mr Mendis' office or S J Berwin's office to receive and acknowledge service of the notice.
  95. The judge's reason for holding that a notice must be served personally on the tenant was the fact that the requirement of a notice cannot be waived, as some notices can be, for example a notice before seeking possession under section 8. I do not find that a persuasive reason for supposing that only personal service would suffice. I therefore hold that a notice served in the appropriate form on a duly authorised agent for the person who is to be the tenant under the tenancy is valid for the purposes of section 20.
  96. Was Mr Mendis authorised to receive the notice on behalf of the Defendant?

  97. So, I come at last to the question of the scope of Mr Mendis' authority, on which the judge found that it did not extend to the receipt of a section 20 notice. So far as this is concerned, I can limit my consideration to the position on the morning of 4 August, between the receipt by Mr Mendis of Ms Amin's fax enclosing the section 20 notice and asking him to confirm receipt, and his fax later that day when he did confirm receipt of the notice. As the judge explained his conclusion, he accepted the Defendant's evidence that he gave no such authority to Mr Mendis, he said that nothing in the Defendant's actions and negotiations with the Claimant entitled them to assume that he had given such authority, and said that the mere instruction of solicitors to handle the paperwork aspects of a tenancy was not sufficient to allow an inference that the solicitor has implied authority to accept the notice. It appears later in his judgment that a factor relevant to his conclusion was that Mr Mendis had not explained the nature of the tenancy to the Defendant and that the Defendant had not agreed explicitly to the nature and limitations of an assured shorthold tenancy, and also that Mr Mendis did not tell the Defendant that he had received the notice on 4 August.
  98. Thus, on this aspect of the judgment as well, the judge made and relied on findings of fact, in this case as to what was or was not said as between Mr Mendis and the Defendant. Mr Brock invited me to hold that Mr Mendis did have actual authority from the Defendant, based on the evidence of what happened on 4 August itself, as well as putting an alternative case based on implied authority. On that day, the Defendant had a load of his possessions brought out of storage to the property in a van, which he wanted to unload. He was not allowed to do so, despite having been allowed access to the Flat previously. Mr Bescoby would not let him unload. Precisely why he took this position does not matter, but it seems likely that among his concerns was that too much business equipment was to be moved in, and that the intended use might not after all be residential. The Defendant therefore telephoned Mr Mendis and told him to get on to S J Berwin so that he could get his van unloaded. Mr Mendis spoke to Ms Amin. She had already sent her fax of 4 August to Mr Mendis, with a section 20 notice, asking for its receipt to be acknowledged, and telling him that after that she would be in a position to complete. When they spoke, it seems to me that she must have said that she would not tell Mr Bescoby to allow the van to be unloaded until the notice had been acknowledged and the agreement completed, and subject no doubt to assurances as to the contents of the van. Later Mr Mendis sent his fax, acknowledging receipt. He referred in his fax to the van, which had been mentioned in their telephone conversation. He offered an assurance that the business equipment was very limited, and asked permission at least to unload the van that afternoon. After he had sent that fax, they probably spoke again on the telephone and agreed completion. In that context, the question is whether Mr Mendis had authority to acknowledge the notice on behalf of the Defendant, the person to whom it was addressed. He did not express any doubt to Ms Amin about his authority, but that in itself is not conclusive. Whether he did have authority depends mainly on what transpired between Mr Mendis and the Defendant before the former sent his fax to Ms Amin that day.
  99. The Defendant gave evidence that he had spoken to Mr Mendis during the day, so as to sort out the problem of access for unloading the van. He spoke of Mr Mendis' fax of that day as having been sent "purely to get the van unloaded". Mr Mendis gave evidence, unprompted, that he had mentioned the section 20 notice to the Defendant on 4 August, when the Defendant rang him because he had the problem about the van. His evidence was that the Defendant did not tell him that he should, or that he should not, accept the notice. The Defendant was clearly anxious to get his possessions into the Flat. It seems highly likely, both from Mr Mendis' evidence and from general probability, that Mr Mendis told him the position as it then stood, including the receipt of the notice and of Ms Amin's fax, and that it would be possible to complete the transaction subject only to replying acknowledging receipt of the fax. It is fair to say that Mr Mendis did not put forward his own recollection of what the Defendant told him in that or those telephone conversations in cross-examination or in re-examination. But what Ms Windsor put to him, and he accepted as possible, seems highly likely, namely that the Defendant's instructions to Mr Mendis were to do whatever was necessary to get him into the property as quickly as possible. If that is correct, then it seems to me that those instructions did indeed give Mr Mendis actual authority to accept the notice on the Defendant's behalf, and generally to proceed to completion. It is consistent with the Defendant's evidence that the fax was sent purely to get the van unloaded. The word "purely" in that answer cannot be taken as an indication that the Defendant was seeking to evade the natural consequences of the fax having been sent with his authority. Mr Mendis knew, and on his evidence explained to the Defendant, what the position was and what was needed to get Ms Amin to agree to let the Defendant have full access, namely completion of the agreement, following confirmation of receipt of the notice. Nor is that inconsistent with the Defendant's own evidence of what happened on 4 August. Mr Mendis did say in evidence that the Defendant never instructed him to accept service of a section 20 notice. In terms, no doubt that was correct. However, on his evidence as to what was said between them on 4 August, the question is what does that amount to, even if the notice was not mentioned expressly. It seems to me that it does constitute the giving of authority to do what was necessary to get to completion, including accepting service of the notice, because only in that way would the Defendant be allowed to unload. In those circumstances I do not need to consider the Claimant's alternative case based on implied authority.
  100. Accordingly, in my judgment the judge was wrong to hold that the Defendant did not give authority to Mr Mendis to accept the notice. He did so, at any rate at the moment when it mattered, and when the notice had to be accepted if completion was to take place.
  101. In reaching that conclusion I do so despite findings of fact by the judge. One is that Mr Mendis did not tell the Defendant about the notice sent on 4 August. In making that finding the judge ignored the fact that Mr Mendis gave evidence that he did tell the Defendant about the notice. That evidence was not prompted by questions from Counsel, but was something which occurred to him of his own accord. Indeed Counsel's question assumed a negative answer: "You cannot remember discussing that notice with Mr Naidu?" There is therefore no reason to discount that evidence as being due to Mr Mendis' willingness to agree with any proposition put to him. That evidence is also consistent with that of the Defendant at least to the extent that they did speak on the telephone at that time, and is not inconsistent with any evidence of the Defendant. The judge's failure to refer to this evidence seems to me to undermine his finding on this point.
  102. Moreover, the judge relied, in this context, on the proposition that the Defendant had never explicitly agreed to the limitations of an assured shorthold tenancy. I have to say that I find that an unconvincing proposition. Even if, as the judge thought, Mr Mendis had not explained the nature of the tenancy to him (not a very difficult task in itself) the Defendant's evidence was clear that he had seen reference after reference to the intended tenancy being an assured shorthold tenancy - in Conrad Ritblat's letter of 20 June, on the face of the tenancy agreement in draft and final forms and in clause 6.12 of the agreement (and, in that clause, also to particular provisions for the recovery of possession by the landlord) - and had not asked anyone to explain these to him. Regardless of whether Mr Mendis was or was not in breach of his professional duty, that evidence justifies the conclusion that the Defendant was intending to accept whatever an assured shorthold tenancy amounted to, whether or not blind, so to speak, as to its true nature. He also knew, as his evidence makes clear, that the tenancy would expire in 2001, though he confidently expected it to be renewed. In that respect he knew the essential feature of an assured shorthold, as opposed to assured, tenancy.
  103. Conclusion

  104. For those reasons, reached after careful thought, particularly as to the limited circumstances in which it is proper for an appeal court to differ from a trial judge on findings of fact where he has seen the witnesses and formed views as to their credibility which are relevant to his conclusions, I am satisfied that he was wrong to find that the tenancy agreement between the parties was entered into on 1 August, or on any date prior to 4 August, 1995, and that Mr Mendis did not have authority to accept service on behalf of the Defendant of the section 20 notice sent to him on that day, and to hold that in any event a notice under section 20 may not validly be served on an agent for the person who is to be the tenant under the tenancy.
  105. Mr Pymont submitted that, if I considered that the judge's findings of fact were not justified by the evidence, I should remit the case for a retrial. I reject that submission. I am satisfied both that those of the judge's findings of fact that I have mentioned were wrong, and as to what the correct findings are on the evidence. There is no need for a new trial of any of the issues.
  106. I therefore allow the appeal and will declare that the tenancy granted by the Claimant to the Defendant was an assured shorthold tenancy.


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