Expert Clothing Service and Sales Ltd v Hillgate House Ltd and Another: CA 2 Apr 1985

The defendant tenant appealed from refusal of relief from forfeiture. At the trial it was conceded that there had been breaches of covenant by the defendant company consisting of the failure to reconstruct the premises by a stated date, and to give notice of a charge on the premises.
Held: Slade LJ said that the breach of a positive covenant would ordinarily be capable of remedy. Ordinarily . . but not always. Slade LJ noted that, for instance, the burning down of the premises during a period of the tenant’s failure to insure would be irremediable. So, no doubt, would be their collapse by reason of a failure to repair.
O’Connor LJ said: ‘To stop doing what is forbidden by a negative covenant may or may not remedy the breach even if accompanied by compensation in money. Thus to remove the window boxes and pay for the repair of any damage done will remedy the breach, but to stop using the house as a brothel will not, because the taint lingers on and will not dissipate within a reasonable time.’
Slade LJ said: ‘..the concept of the capability of remedy for the purpose of s 146 must surely be directed to the question whether the harm that has been done to the landlord by the relevant breach is for practical purposes capable of being retrieved.’
O’Connor LJ, who agreed with Slade LJ’s reasons said: ‘How are such breaches to be identified? [i.e. breaches not capable of remedy] Looking at s 146(1) as a whole, I would say that the question must be examined at the date of the notice. Once a breach of covenant has been committed, the fact that there has been a breach cannot be expunged so that to remedy a breach must mean to do what is necessary to put the lessor back into the position he would have been in had no breach been committed. If this cannot be done within a reasonable time or at all, the breach is not capable of remedy; if it can, it is.’
Slade LJ, O’Connor LJ, Bristow J
[1985] EWCA Civ 4, [1986] 1 Ch 340, (1985) 50 P and CR 317, (1985) 275 EG 1011, [1985] 2 All ER 998, [1985] 3 WLR 359, [1985] 2 EGLR 85
Law of Property Act 1925 146
England and Wales
Cited by:
CitedSavva and Another v Houssein CA 24-Apr-1996
The tenant had broken a negative covenant against making alterations, namely not to change the exterior sign and not to alter the premises without consent. The landlord sought to forfeit the lease.
Held: The breach of the covenant was . .
CitedTelchadder v Wickland Holdings Ltd SC 5-Nov-2014
Old breaches did not support possession order
The mobile home tenant was said to have paraded on the caravan park in combat style clothing, and disguising his face, causing fear among the other tenants. He now appealed against confirmation of the order for possession. He said that there had . .
CitedJohn Lewis Properties PLC v Viscount Chelsea ChD 1993
Three Leases of the Peter Jones site to T’s predecessor in 1934 contained covenants by T to redevelop the site in two phases, the second of which related to the MackMurdo and Simon’s Street buildings and was to be completed by December 25 1987. In . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 July 2021; Ref: scu.245281