DODDS V WALKER

DODDS V WALKER

 

[1981] 1 W.L.R. 1027

 

[HOUSE OF LORDS]

 

1981 May 21; June 18

 Lord Diplock, Lord Edmund-Davies, Lord Fraser of Tullybelton, Lord Russell of Killowen and Lord Roskill

 

 

 

 

Landlord and Tenant – Business premises (security of tenure) – Application for new tenancy – Notice to quit served on September 30 – Tenant’s application for new tenancy made on January 31 – Whether application made within statutory four month period – Landlord and Tenant Act 1954 (2 AND 3 Eliz.  2, c. 56), s. 29 (3)

 

 

 

By section 29 (3) of the Landlord and Tenant Act 1954:

 

“No application [for a new tenancy] under section 24 (1) of this Act shall be entertained unless it is made not less than two nor more than four months after the giving of the landlord’s notice under section 25 of this Act …”

 

On September 30, 1978, the landlord, under Part II of the Landlord and Tenant Act 1954, gave notice to the tenant to determine his tenancy of business premises. Under section 29 (3) of the Act, the tenant had “four months after the giving of the landlord’s notice” to apply to the county court for a new tenancy. The tenant applied on January 31, 1979. The registrar dismissed the application on the basis that it was out of time and, on appeal, the judge held that, in computing the four months’ period under section 29 (3), the day the landlord gave notice was to be excluded but, notwithstanding that

 

 

 

 

 

[1981]

  

 1028

 

1 W.L.R.

 Dodds v. Walker (H.L.(E.))

  

 

 

 

 

September was a 30 day month, the period elapsed on the corresponding day in the fourth month, namely, January 30, and therefore the tenant’s application made on the last day of January was made one day too late. The Court of Appeal affirmed that decision.

 

On appeal by the tenant: –

 

Held, dismissing the appeal, that in construing section 29 (3) of the Act the corresponding date rule applied, so that in calculating the period which had elapsed after the giving of the landlord’s notice and excluding that day, the relevant period was the specified number of months thereafter which ended on the corresponding day of the appropriate subsequent month, and accordingly the tenant had made his application out of time.

 

Decision of the Court of Appeal [1980] 1 W.L.R. 1061; [1980] 2 All E.R. 507 affirmed.

 

 

 

The following cases are referred to in their Lordships’ opinions:

 

 

 

Freeman v. Read (1863) 4 B. AND S. 174.

 

Lester v. Garland (1808) 15 Ves.Jun. 248.

 

 

 

The following additional case was cited in argument:

 

 

 

Migotti v. Colvill (1879) 4 C.P.D. 233, Denman J. and C.A.

 

 

 

APPEAL from the Court of Appeal.

 

This was an appeal from a decision of the Court of Appeal (Stephenson and Templeman L.JJ., Bridge L.J. dissenting) dated February 29, 1980, affirming a decision of Judge Whitehead in Grantham County Court.

 

The issue on this appeal was whether the appellant Robert William Dodds, the tenant, could rely on section 29 (3) of the Landlord and Tenant Act 1954 as authority for the court to entertain his application for a new tenancy under section 24 of the Act. The respondent Kenneth Edward Walker, the landlord, sought to rely on the Act as authority for the court to dismiss the tenant’s application for a new tenancy on the ground that it had been made out of time by virtue of section 29 (3) of the Act. The respondent contended in effect that by reason of section 29 (3), the tenant’s application could not be entertained by the court as the application was made “more than four months after the giving of the landlord’s notice under section 25 of the Act.”

 

 

 

Mathew Thorpe Q.C. and Michael Barnes Q.C. for the appellant.

 

The respondent appeared in person but was not called upon.

 

 

 

Their Lordships took time for consideration.

 

 

 

June 18. LORD DIPLOCK. My Lords, Part II of the Landlord and Tenant Act 1954 entitles a tenant of business premises, whose tenancy has been terminated by notice given to him by his landlord in accordance with the provisions of that Act, to apply to the court for a new tenancy. By section 29 (3) the application must be made “not less than two nor more than four months after the giving of the landlord’s notice.” In the instant case the respondent landlord’s notice was given on September 30, 1978; the appellant tenant’s application to the court for a new lease was made on January 31, 1979. The only question in this appeal is: Was that one day too late?

 

The registrar and the judge of Grantham County Court both thought that it was too late. They dismissed the tenant’s application on the ground

 

 

 

 

 

[1981]

  

 1029

 

1 W.L.R.

 Dodds v. Walker (H.L.(E.))

 Lord Diplock

 

 

 

 

that the court had no jurisdiction to entertain it. In the Court of Appeal opinion was divided. Stephenson and Templeman L.JJ. agreed that it was one day too late; Bridge L.J. thought that it was just in time: and leave was given by that court to appeal to your Lordships’ House.

 

My Lords, reference to a “month” in a statute is to be understood as a calendar month. The Interpretation Act 1889 says so. It is also clear under a rule that has been consistently applied by the courts since Lester v. Garland (1808) 15 Ves.Jun. 248, that in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning. It is equally well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or specified number of months after the giving of a notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given.

 

The corresponding date rule is simple. It is easy of application. Except in a small minority of cases, of which the instant case is not an example, all that the calculator has to do is to mark in his diary the corresponding date in the appropriate subsequent month.  Because the number of days in five months of the year is less than in the seven others the inevitable consequence of the corresponding date rule is that one month’s notice given in a 30 day month is one day shorter than one month’s notice given in a 31 day month and is three days shorter if it is given in February.  Corresponding variations in the length of notice reckoned in days occur where the required notice is a plurality of months.

 

This simple general rule which Cockburn C.J. in Freeman v. Read(1863) 4 B. AND S. 174, 184 described as being “in accordance with common usage …  and with the sense of mankind,” works perfectly well without need for any modification so long as there is in the month in which the notice expires a day which bears the same number as the day of the month on which the notice was given.  Such was the instant case and such will be every other case except for notices given on the 31st of a 31 day month and expiring in a 30 day month or in February, and notices expiring in February and given on the 30th or the 29th (except in leap year) of any other month of the year.  In these exceptional cases, the modification of the corresponding date rule that is called for is also well established: the period given by the notice ends upon the last day of the month in which the notice expires.

 

My Lords, I do not personally derive assistance from pursuing metaphysical arguments about attributing to the one day or the other the punctum temporis between 24.00 hours on September 30 and 0.00 hours on October 1 at which time began to run against the tenant.  These seem to me quite inappropriate to the determination of the meaning of a statute which regulates the mutual rights of landlords and tenants of all business premises and is intended to be understood and acted on by them.  It refers to periods to be reckoned in months and was passed at a time when the corresponding date rule had been recognised for more than a century as applicable in reckoning periods of a month after the occurrence of a specified event.  In agreement with the majority of the Court of Appeal, I would not construe the Act as calling for any departure from the familiar corresponding date rule where this rule can be applied nor as calling for any greater modification in the general rule than was already recognised as

 

 

 

 

 

[1981]

  

 1030

 

1 W.L.R.

 Dodds v. Walker (H.L.(E.))

 Lord Diplock

 

 

 

 

applicable where there is no corresponding date in the month in which the notice expires because it is shorter than the month in which the notice was given.

 

In the instant case the corresponding date rule presents no difficulty. I would apply it and dismiss this appeal.

 

 

 

LORD EDMUND-DAVIES. My Lords, I am in respectful agreement with the views expressed in the speeches of my noble and learned friends, Lord Diplock and Lord Russell of Killowen, which I have read in draft, and I would accordingly dismiss the appeal.

 

 

 

LORD FRASER OF TULLYBELTON. My Lords, I have had the advantage of reading in draft the speeches prepared by my noble and learned friends, Lord Diplock and Lord Russell of Killowen. I agree with them, and for the reasons stated therein I too would dismiss this appeal.

 

 

 

LORD RUSSELL OF KILLOWEN. My Lords, it is common ground that in this case the period of four months did not begin to run until the end of the date of the relevant service on September 30 – i.e. at midnight September 30/October 1. It is also common ground that ordinarily the calculation of a period of a calendar month or calendar months ends upon what has been conveniently referred to as the corresponding date. For example in a four month period, when sevice of the relevant notice was on September 28, time would begin to run at midnight September 28/29 and would end at midnight January 28/29, a period embracing four calendar months. It is to be observed that the number of days in the four month period in that example is in one sense inevitably limited by the fact that September and November each contains but 30 days. But the application of the corresponding date principle inevitably produces variation in the number of days involved, depending upon the date upon which a four month notice is served and the irregular allotment of days to different months. Sometimes it is not possible to apply directly the principle, for instance if a four month notice is served on October 30 (the time beginning to run at midnight October 30/31), there being in February but 28 (or 29) days it is not possible to find a corresponding date in February and plainly a corresponding date cannot be sought in March: the application of the corresponding date principle in such case can only lead to termination of the four month period at midnight February 28/March 1 (or midnight February 29/March 1 in a leap year). That is an inevitable outcome.

 

Bridge L.J. in his dissenting judgment in this case adopted a simple stance. Time he said (correctly) began to run at midnight September 30/October 1. Stretching ahead were the four calendar months of October, November, December and January: the tenant was allowed the whole of those four calendar months including the whole of January: therefore the application made on January 31 was made in time. I am with respect unable to accept this departure from the corresponding date principle simply because the period starts to run at the outset of the first of a month: a departure from the sound and well established rules is not required in that one instance, as it is required in the example given of there being no corresponding date in February. For the appellant it was submitted that Templeman L.J. had fallen into the error of including the whole of September 30 in the period. I am clearly of opinion that the language used by him was not to that effect.

 

Accordingly I am of opinion that the corresponding date principle is

 

 

 

 

 

[1981]

  

 1031

 

1 W.L.R.

 Dodds v. Walker (H.L.(E.))

 Lord Russell of Killowen

 

 

 

 

applicable in this case, that the four month period expired at midnight January 30/31, and that the application made on January 31 was out of time and could not be entertained. Consequently I also would dismiss this appeal.

 

 

 

LORD ROSKILL. My Lords, I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Diplock and Lord Russell of Killowen. For the reasons they give, I agree that this appeal fails and should be dismissed.

 

 

 

 

 Ap

peal dismissed.

 

 

 

 

Solicitors: Radcliffes AND Co. for Norton AND Hamilton, Grantham.

 

 

 

F.C.