Finbow v Air Ministry: 1963

The minister had mistakenly exercised a formal power to approve a licence to occupy land under a repealed section instead of its re-enacted successor. The claimant said that this was not an effective approval. The court also considered the authorities on how to distringuish between a lease and a licence.
Held: The misdescription of his powers rendered the document a nullity would defeat the plain intention of the Minister. McNair J said ‘It is, in my judgment, a plain case for the application of the maxim falsa demonstratio non nocet and of the principle embodied in the maxim magis valeat quam valeat. There is a total inconsistency and repugnancy between the minister’s manifest intention and the literal effect of the document, and, in my judgment, the former should prevail.’
As to the nature of the agreement: ‘1) that the agreement must be construed as a whole and that the relationship is determined by law and not by the lable which the parties put on it, though the label is a factor to be taken into account in determining the true relationship; . . . 2) that the grant of exclusive possession, if not conclusive against the view that there is a mere licence as distinct from a tenancy, is at any rate a consideration of the first importance;’ and in all the cases where a licence was found, that was because of the presence of factors such as those set out in Facchini.
As to the effect of reliance upon the mistake, McNair J said: ‘The document was in the circumstances in which it was executed plainly intended by the Minister to be an approval in the exercise of his statutory powers. These powers at the date of the instrument were to be found only in section 2 of the Act of 1948. To hold that the mis- description of his powers rendered the document a nullity, would, in my judgment, defeat the plain intention of the Minister to be deduced from the circumstances and the date of its execution. It is, in my judgment, a plain case for the application of the maxim falsa demonstratio non nocet and of the principle embodied in the maxim magis valeat quam pereat. There is a total inconsistency and repugnancy between the Minister’s manifest intention and the literal effect of the document, and, in my judgment, the former should prevail. In this connection, reference may be made to In re Lockwood, Atherton v Brooke, where Harman J was confronted with a rather similar problem arising out of mistake in a statute and approved a citation from Maxwell on Statutes (now 11th ed. (1962) p 243) to the following effect: ‘The authorities do …. establish that the judicial interpreter may deal with careless and inaccurate words and phrases in the same spirit as a critic deals with an obscure or corrupt test, when satisfied, on solid grounds, from the context or history of the enactment or from the injustice, inconvenience, or absurdity of the consequences to which it would lead, that the language thus treated does not really express the intention and that this amendment probably does.”
McNair J
[1963] 1 WLR 697
England and Wales
Citing:
CitedFacchini v Bryson 1952
The court held that in all the reported cases where it was held that an agreement was a licence rather than a tenancy: ‘In all the cases where an occupier has been held to be a licensee there has been something in the circumstances, such as a family . .

Cited by:
CitedRegina v Dover Magistrates’ Court ex parte Webb Admn 18-Mar-1998
The defendant appealed against a forfeiture order, saying that it had been made under the 1990 Act which had been repealed.
Held: The wrong naming of the section did not invalidate the decision. . .
CitedBurrells Wharf Freeholds Ltd v Galliard Homes Ltd TCC 1-Jul-1999
The court was aksed to provide pre-action discovery under the rules. The defendant said that the rules were invalid, having been made under an invalid power.
Held: ‘article 5 of the Order would not have been invalidated by a failure to mention . .
CitedMcKay, Regina (on the Application of) v First Secretary of State and Another CA 9-Jun-2005
An enforcement notice was challenged on the grounds of it having been made without the appropriate identification of the land at issue. . .

These lists may be incomplete.
Updated: 21 May 2021; Ref: scu.186963