Mathew McDermott discusses the recent Court of Appeal case, OG Thomas v. Turner

OG Thomas v. Turner [2022] EWCA Civ 1446

When is a notice to quit given to “the tenant”?

Right language but wrong person or wrong language but right person?

FACTS

An oral tenancy over a farm had been granted to Mr Thomas, and because it was an oral tenancy it contained no restriction on assignment.

By s.26 Agricultural Holdings Act 1986 an NTQ has to be “given to the tenant”. By s.93 (2), an NTQ is duly given to or served on an incorporated company if it is given to or served on the secretary or clerk of the company.

By November 2019, Mr Thomas had incorporated a company (‘OG Thomas’) and without telling the landlord executed a deed of assignment of the oral tenancy to that company.

The company’s registered address was the same as Mr Thomas’ home address, and Mr Thomas was also the secretary of the company.

A notice to quit (“NTQ”)  addressed to Mr Thomas and sent to his home – that is, also the registered address of the company – was served.

The County Court and, on first appeal, the High Court were of the view that the NTQ was valid despite it being addressed to Mr Thomas.

The thrust of the High Court’s reasoning (Zacaroli J) was, relying upon Mannai Investment Co Ltd v. Eagle Start Assurance Co Ltd [1997] AC 749, that a reasonable recipient would be in no doubt that the NTQ would convey an intention to the entity that held the lease that they had to deliver up possession of the land. It was, in effect, obvious that the NTQ was intended to be addressed to the company, OG Thomas [9] [10].

THE COURT OF APPEAL

The Court of Appeal (Lewison LJ, with whom Asplin LJ and Nugee, LJ agreed) allowed the tenant’s appeal.

Materially, the Court of Appeal said that:

(1) The tenant company had been served with the NTQ as it had been sent to Mr Thomas, the company’s secretary [25];

(2) However, the company’s argument was right: the Court has a power to read a document (such as a notice to quit) as if obvious mistakes had been corrected, but that only applied where there had been an error in the language used, rather than a substantive error. Effectively, some mistakes are outside of the reach of the principle in Mannai [29] [56]

(3) If a notice is addressed to “A” by his correct name and sent to “A” to its proper address, it cannot be treated as a notice given to “B” [45]

(4) Importantly, whether a notice addressed to and received by “A” is a notice “given” to B is not a question of interpretation, but a question of satisfying formal conditions [57]

COMMENT

In terms of the 1986 Act itself, OG Thomas confirms that s.93 is only concerned with the service of documents and not with their form [28], and the judgment contains an interesting discussion of previous cases grappling with alleged defects in notices, including persuasive authority from Scots law.

But it is of broader application than agricultural holdings. The case not only illustrates that the Mannai principle will not always save a notice like an NTQ, but also that particular care needs to be taken when seeking to determine tenancies that contain no restriction on assignment (such as the oral tenancy in this case [2]). 

The Court of Appeal reached its conclusion “with reluctance” [60], and any perceived unfairness – the party giving the NTQ did not know that Mr Thomas had executed the Deed of Assignment to the company – may be explained, at least partly, by the tenancy being granted orally.

Assignments of leases may, depending on their nature, be regulated by statute and, more commonly, the provisions of the agreement. Here, there was no written agreement. Indeed, the Court of Appeal itself noted that one option would have been simply to serve the NTQ on ‘the tenant’: [58]

9th Nov 2022

Mathew McDermott

Call 2008