Landlords took possession after a successful, at first instance, forfeiture claim. The tenant succeeded on appeal and then brought a claim for the wrong of breach of the covenant for quiet enjoyment.
Held: The lease had been in existence all the time, despite the ‘wrong’ order for forfeiture. A person acting on the basis of a court order (even one later set aside) commits no wrong while the order is in force. A breach will only be treated as being irremediable where the consequences of that breach cannot be put right or retrieved for the future.
The court considered the doctine of waiver where rent was demanded and paid after a breach of covenant: ‘Though we have been referred to no authority binding on this court to this effect, I am also content for present purposes to assume, without finally deciding, that (as was held by Sachs J. in Segal Estates v. Thoseby) Mr. Neuberger is right in submitting that a demand for rent will, by itself, have the like effect.’ (Slade LJ, obiter)
Browne-Wilkinson J said: ‘If the case were otherwise, there would, in my judgment, be very great confusion. People must be entitled to act in pursuance of a court order without being at risk that they are thereby acting unlawfully. Public policy requires it. I am not in any sense casting doubt on, or seeking to cut down, those cases to which I have been referred which indicate that where a judgment is reversed, the objective of the court should be to put back the litigants into the position in which they should all along have been had the law been properly appreciated – cases such a Rodger. Those cases are concerned with reimbursing to the parties moneys lost as a result of the execution of the judgment by the payment of money. They are not cases, such as the present, in which it is sought to found a separate cause of action on the carrying out of the court order.’
Judges:
Slade LJ, Browne-Wilkinson J
Citations:
[1986] 1 Ch 340, [1985] 2 All ER 998, [1987] 1 EGLR 65
Jurisdiction:
England and Wales
Citing:
Cited – Segal Securities Limited v Thoseby QBD 1963
To demand rent may waive a right to forfeiture. Sachs J said: ‘When one looks at the authorities, it is, however, clear that a demand can operate as a waiver in the same way as an acceptance.’ Also the landlord’s own behaviour can be taken into . .
Approved – Hoffman v Fineberg 1949
The court rejected an argument in the context of an application for the forfeiture of a lease, that a painting in the sixth year of a lease could not remedy a failure to repaint in the fifth year. . .
Cited by:
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Cited – Akici v LR Butlin Ltd CA 2-Nov-2005
The tenant appealed against forfeiture of his lease for breach of a qualified covenant against assignment. It was said that the tenant had attempted to hide from the landlord the assignment of the premises to his company or its shared occupation. . .
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Cited – Force India Formula One Team Ltd v Etihad Airways PJSC and Another QBD 4-Nov-2009
The parties had entered into a sponsorship agreement, with the claimants undertaking to display the name of the defendants on their car. After the agreement, the claimant company had been taken over by parties with interests competing with those of . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 01 July 2022; Ref: scu.230301
