Home Information Cases Chiltern Railway Co Ltd v Patel (2008)

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Chiltern Railway Co Ltd v Patel (2008)

Summary

A statutory declaration by a tenant in the form set out in the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003 Sch.2 para.8 was found to be effective in relation to business leases falling within sch.2 para.3 of the Order because, on the facts, its form was "in the form or substantially in the form" set out in sch.2 para.7. The converse was not true, and a declaration in the form of sch.2 para.7 would not suffice for a lease falling within sch.2 para.4 of the Order.

Facts

The appellant tenant (P) appealed against a possession order granted to the respondent landlord (C). C had granted two business leases to P which were subject to agreements excluding the Landlord and Tenant Act 1954 Pt II. Prior to the leases being entered into C had served notices on P complying with the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003 Sch.1 and P had made statutory declarations in the form set out in sch.2 para.8 of the Order as required by sch.2 para.4. The leases subsequently expired and C had sought possession. P had resisted possession on the basis that the requirements of s.38A(3)(b) of the Act had not been met and that the tenancies were therefore continuing under s.24 of the Act. The judge had granted possession and had ruled that the Act had been excluded. P contended that as the notices excluding the Act were served more than 14 days before the leases had been entered into, a declaration in the form set out in sch.2 para.7 should have been made in accordance with sch.2 para.3 of the Order and that, as it had not, s.38A(3)(b) of the Act had not been satisfied and the tenancies had not therefore expired.

Held

It would be bordering on the absurd if a statutory declaration was held to be ineffective on the ground that it differed from the prescribed form because it was in a more solemn form than the prescribed form and, while stating that the notice had been served before the lease was entered into, did not state that it had been served 14 days before the leases had been entered into. Statutory requirements relating to a notice or a declaration could be so clearly and unequivocally expressed that strict compliance would be required as a matter of law, but that was not so in the instant case. It was clear on the facts that sch.2 para.3 of the Order applied, as opposed to sch.2 para.4. The requirement of para.3 was not that a declaration must be in the same form as that set out in para.7, but that it must be "in the form or substantially in the form" set out in para.7. Whether it was substantially in the same form turned on whether the para.8 form performed all the essential functions of a para.7 form. A declaration under para.7 had to convey certain information and it was necessary to look at its prescribed form in its statutory and commercial context and see whether the departures from that form, either individually or taken together, resulted in thwarting or significantly blunting the essential purpose of the prescribed form. The test was essentially one of substance, but the style and layout of the form might be of essence, Davis v Burton (1882-83) LR 11 QBD 537 CA applied. On the facts and evidence, it was impossible to conclude in the instant case that the para.8 declaration was not "substantially in the form" of the para.7 declaration. The para.8 form carried the same message as the para.7 form but in more emphatic and solemn terms. (2) The issue in the instant case was of wider significance insofar as it applied to statutory forms generally. It was hard to see how a simple para.7 declaration would be "substantially in the same form" of a para.8 declaration in a case to which sch.2 para.4 of the Order applied. A para.8 form would suffice in a para.3 case, but a para.7 form would not suffice in a para.4 case.

Appeal dismissed

Court of Appeal
Mummery LJ, Arden LJ, Lord Neuberger of Abbotsbury
Judgment date
9 February 2008
References

​LTL 8/2/2008

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