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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Sackville UK Property Select II (GP) No.1 Ltd & Anor v Robertson Taylor Insurance Brokers Ltd & Anor [2018] EWHC 122 (Ch) (30 January 2018) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2018/122.html Cite as: [2018] EWHC 122 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
(1) ![]() ![]() (2) ![]() |
Claimants |
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- and - |
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(1) ROBERTSON TAYLOR INSURANCE BROKERS LIMITED (2) INTEGRO INSURANCE BROKERS LIMITED |
Defendants |
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Damian Falkowski (instructed by Duane Morris) for the Defendants
Hearing dates: 17 January 2018
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Crown Copyright ©
Mr Justice Fancourt:
The factual background
"The expressions "Landlord" and "Tenant" shall include their respective successors in title, "Tenant" shall include the personal representatives of the Tenant and any person in whom this Lease may from time to time be vested by whatever means…"
"The Tenant may terminate this lease on 14th March 2018 (the "Termination Date") by giving to the Landlord not less than nine months' prior written notice of such termination expiring on the Termination Date and if such notice is given and the Tenant shall:
6.10.1.1 up to and including the Termination Date have paid the annual rent reserved by clause 2.1 due under this Lease; and
6.10.1.2 on the Termination Date give vacant possession of the Premises;
then on the Termination Date this lease shall absolutely terminate and be of no further effect…"
"To: [The Landlord].
From: INTEGRO INSURANCE BROKERS LIMITED whose registered office is 100 Leadenhall Street, London, EC3A 3BP (Tenant).
Premises: …
We EC3\LEGAL LLP of 4th Floor, 106 Leadenhall Street, London EC3A 4AA for and on behalf of the Tenant GIVE YOU NOTICE that the Tenant intends to terminate the term of the lease on the 14th March 2018 in accordance with clause 6 of the Lease…"
The evidence
"John Owens did not instruct me to serve the break notice on behalf of either Integro Insurance Brokers Limited or Robertson Taylor Insurance Brokers Limited. All John Owens wanted was for the break notice to be served by whichever company was entitled to serve the break notice."
He then explains that:
"I served the Break Notice in the name of Integro Insurance Brokers Limited as I had assumed wrongly the Lease was not registered at the Land Registry and that by the assignment of the lease the legal tenant was Integro Insurance Brokers Limited. I had received the Landlord's licence to assign the Lease to Integro Insurance Brokers Limited and had given notice of the assignment to the Landlord's solicitors. I did not consider there was any question as to who the tenant was."
"I believe that Integro had the necessary authority of Robertson Taylor in respect of service of the notice, given my various roles as described, the fact that Claire and I made the decision, and indeed her own roles, which included being the sole director of Robertson Taylor and chief financial officer of Integro. This being so, when Mr White was acting, our overall intent as a group was clear and he was aware that he was acting in the interests of Integro and Robertson Taylor: our instructions were to effect a termination of the Lease by the service of a break notice."
The Claimants accept that on this Part 24 application they must proceed on the assumed basis of the Defendants' evidence that, by virtue of group arrangements, Mr White in fact had authority to act and serve any necessary notice on behalf of Robertson and Integro, not just Integro.
The issues
"A person is entitled to exercise owner's powers in relation a registered estate or charge if he is-
(a) The registered proprietor, or (b) entitled to be registered as the proprietor."
By section 23(1) of that Act, "owner's powers" in relation to a registered estate consist of:
"(a) Power to make a disposition of any kind permitted by the general law in relation to an interest of that description, other than a mortgage by demise or sub-demise, and
(b) Power to charge the estate at law with the payment of money."
(1) There was no intention on the part of Mr White, or Mr Owens on behalf Integro, to give the notice on behalf of Robertson;
(2) Any reasonable recipient of the notice in the position of the Claimants would not conclude that the notice must have been given on behalf of Robertson rather than Integro.
"The result of these authorities is, in my judgment as follows:
(1) Where at the time when the contract of insurance was made the principal assured or other contracting party had expressed or implied actual authority to enter into that contract so as to bind some other party as co-assured and intended so to bind that party, the latter may sue on the policy as the undisclosed principal and co-assured regardless of whether the policy described a class of co-assured of which he was or became a member.
(2) Where at the time when the contract of insurance was made the principal assured or other contracting party had no actual authority to bind the other party to he contract of insurance, but the policy is express to insure not only the principal assured but also a class of others who are not identified in that policy, a party who at the time when the policy was effected could have been ascertained to qualify as a member of that class can ratify and sue on the policy as co-assured if at that time it was intended by the principal assured or other contracting party to create privity of contract with the insurers on behalf of that particular party.
(3) Evidence as to whether any particular case the principal assured or other contracting party did have the requisite intention may be provided by the terms of the policy itself, by the terms of any contract between the principal assured or other contracting party and the alleged co-assure or by any other admissible material showing what was subjectively intended by the principal assured." (pp.596-7)
"For present purposes the law can be summarised shortly: (1) an undisclosed principal may sue and be sued on a contract made by an agent acting on his behalf, acting within the scope of his actual authority. (2) In entering into the contract, the agent must intend to act on the principal behalf. (3) The agent of an undisclosed principal may also sue and be sued on the contract. (4) Any defence which the third party may have against the agent is available against his principal. (5) The terms of the contact may, expressly or by implication, exclude the principal's right to sue and his liability to be sued. The contact itself, or the circumstances surrounding the contract, may show that the agent is the true and only principal." (p.207D)
(1) The Landlord knew that EC3 Legal was acting for both Robertson and Integro;
(2) Both companies had the same address on the Licence;
(3) The same director signed for both companies in the Licence and the Assignment;
(4) The Landlord had seen that the Assignment was not in form TR1, as would have been appropriate for the transfer of a registered lease.
"In my judgment, if it had been clear that the solicitors in [Lemmerbell –v- Britannia LAS Direct] were indeed serving the notice on behalf of the actual tenant, whoever it was, then it would have been a good notice. After all, the purpose of the break notice in Lemmerbell was not to identify the tenant to the landlord, but to communicate to the landlord an intention on behalf of the tenant, and no-one other than the tenant, an unequivocal desire to determine the lease in accordance with its terms. Once a person other than the actual tenant was identified in the notice as the person on whose behalf the notice was served, the notice could only be valid if it could be shown that, despite the mis-identification, a reasonable person in the position of the landlord could have been in no doubt but that the notice was served on behalf of the person that was the tenant. For the reasons given, the Court of Appeal held that a reasonable landlord could have been in such doubt."