Case: P Phipps and Company (Northampton and Towcester Breweries) Ltd v Rogers [1925] 1 KB 14
Outcome: considered
first case is P Phipps and Company (Northampton and Towcester Breweries) Ltd v Rogers [1925] 1 KB 14 which, if I may say so, is the high watermark of this line of authority. The case concerned a yearly tenancy of a public house. Either party could determine the tenancy "upon giving to the other of three months' previous notice in writing of his or her intention to do so expiring on any one of the days appointed as special transfer sessions by the justices for the district in which the premises are situate..." The landlord gave the tenant a notice to quit which read: "We do hereby give you notice to quit and deliver up to us (or such other person as we may appoint) on the earliest day your tenancy can legally be terminated by valid notice to quit given to you by us at the date of the service hereof ...". The notice was declared invalid. Bankes LJ said (at 20) that: "It is not necessary that a notice should be clear and unambiguous in expressed terms provided it can be rendered clear and unambiguous by the application of the maxim 'Id certum est quod certum reddi potest'. ['That is sufficiently certain which can be made certain'.] There are many decided cases in the books where the Courts have imputed to the tenant knowledge which, when applied to the notice to quit served upon him, renders clear what would without that knowledge have been neither clear nor unambiguous." Bankes LJ, however, said that he was not prepared to impute or attribute to the tenant the knowledge of the facts or of the law that was required to enable the tenant to determine the day upon which the tenancy would come to an end. The situation was that several difficult construction questions and questions of fact had to be sorted out before the notice could be rendered certain. Among the points that needed to be resolved was whether the reference to "three months" meant three calendar months or three lunar months; whether an annual licensing meeting was or was not a special transfer session; and when the special transfer sessions were in fact going to be "held". Bankes LJ was unwilling to extend the maxim to embrace such a complex enquiry. Atkin LJ rejected the notice on similar grounds. He said (at 28): "But it appears to me to defeat the whole object of notice to leave the date to be ascertained by the tenant as a problem not of fact but of law ... A tenant receiving such a notice might have to consult his solicitor, who might have to consult counsel, who might have to advise an application to the Court for a declaration by action or summons." Scrutton LJ was in dissent. He was of opinion that a long-settled line of authorities had treated landlords and tenants as both knowing the law and had assumed that the tenant must know the necessary facts. This, he said, bound him to conclude that the notice was valid. The second case is Addis v Burrows [1948] 1 KB 444. There premises were let on a yearly tenancy "until the tenancy be determined at the end of the first or any subsequent year by one of the parties giving to the other of them six calendar months previous notice in writing." On the face of the tenancy agreement the period of the tenancy was from 1 January 1944 to 30 June 1945, not a term of one year. The lessors served a notice to quit on 28 June 1945. The notice required the tenant to quit "at the expiration of the year of your tenancy which will expire next after the end of one half year from the service of this notice". The Court of Appeal decided that the tenancy granted was for eighteen months and thereafter on a yearly tenancy. It also held that the notice to quit was valid. Evershed LJ dealt with the sufficiency of the notice in a lengthy passage between pages 452-456. He said (at 453) that that notice "puts plainly on the tenant the obligation of ascertaining the date meant by the form of words used. Prima facie, the problem is not very difficult. As [Lord Greene MR] observed during the argument, the tenant requires for its solution two things only, a modern calendar and the tenancy agreement. Armed with those two things he asks himself first: When was this notice served on me? ... [H]e is next required to find out when one half year ends after the service of the notice. ... [T]hen only remains the question: when does the year of his tenancy current on December 29, 1945, come to an end? It is true that involves the interpretation of the tenancy agreement. But, if I am right in the view which I have expressed, he should have no great difficulty in answering that question." Evershed LJ distinguished Phipps v Rogers . He said (at 455) of that case that there was "an accumulation of difficulties provided by the joint effect of the language of the tenancy agreement and the very unusual form of the notice to quit." Later (also at 455) he pointed out that the court had come "to the conclusion that the tenant was involved in so many difficulties that there was a failure on the landlord's part either to give a certain date or to supply the tenant with a formula from which certainty could be ascertained and that, therefore, the notice was not good." By way of contrast, as regards the case before the court the judge said that any ambiguity was capable of a clear answer. Asquith LJ delivered a short judgment in which he pointed out, at 457, that in Phipps v Rogers it was observed that "each case must be decided on its own facts and circumstances" and that "the circumstances there were that the tenant was forced by the form of notice to answer questions both of law and fact interlocked with each other and calling for a much more complex calculus than anything involved in the [instant] case." The other judge, Lord Greene MR, also put Phipps v Rogers to one side as being a difficult case to understand, observing, at 458, that the difficulties presented to the tenant in that case were difficulties of construction and difficulties of fact. He rejected the suggestion that a termination notice giving rise to a difficult question of construction was necessarily invalid. The last case is Allam &amp; Co Ltd v Europa Poster Services Ltd [1968] 1 WLR 638. I need not go into the facts. I cite the case for the observation by Buckley J who looked closely at Phipps v Rogers and Addis v Burrows and (at 652) said this: "No doubt if those cases are both good law, as I must assume that they are, the question of the validity of the notice, the interpretation of which involves some question of law, must become a question of degree. There must be cases which, because of the difficulty or complexity of the case, fall within the principle of Phipps v Rogers . There must be others which, notwithstanding that some question of law arises, because of the simplicity or comparative simplicity of the problem fall within Addis v Burrows ."