Clickex Limited v McCann

A tenant may appeal an adverse legal determination made in proceedings that were dismissed overall where the determination may affect the tenant’s rights in later proceedings and is not academic.

For a notice under section 20 of the Housing Act 1988, an error is capable of being disregarded only where it is obvious or evident and, read in context, leaves a reasonable recipient in no reasonable doubt about the tenancy terms. A conflict between the notice and the tenancy agreement which creates real uncertainty is not an evident clerical error. The court must determine the issue from the contemporary documents and cannot adopt a more benevolent approach because later legislation made the regime less technical.

The landlords sought possession from the tenant after granting a proposed six-month assured shorthold tenancy. The section 20 notice stated that the tenancy ran from 21 December 1995 to 23 June 1996. The tenancy agreement was later altered to provide for a six-month term beginning on 8 January 1996.

The Brentford County Court held that the section 20 notice was valid but dismissed the possession claim because the section 21 notice was defective. The tenant appealed the section 20 determination, although the overall order favoured him. The principal issues were whether the appeal was academic and whether the discrepancy invalidated the notice.

1. The appeal was properly entertained. Although the possession claim had been dismissed, the county judge had made separate determinations on the section 20 and section 21 issues. The section 20 determination materially affected whether the tenant had an assured tenancy or an assured shorthold tenancy. It could therefore affect later possession proceedings and was not academic. The Court of Appeal could determine the real question in controversy under Order 59, rule 10(3) and (4) of the Rules of the Supreme Court.
2. The governing approach. The court applied the two-stage approach identified in York and another v Casey and another [1998] 2 EGLR 25, following the reasoning in Panayi & Pyrkos v Roberts [1993] 25 HLR 421, Andrews v Brewer [1997] 30 HLR 203 and Mannai Investment Co. Ltd. v Eagle Star Life Assurance Co. Ltd. [1997] AC 749. First, the error must be obvious or evident. Secondly, despite the error, the notice must be sufficiently clear to leave a reasonable recipient in no reasonable doubt about its terms.
3. Application. The notice was correct when served, but the tenancy agreement was subsequently altered. The documents therefore contained a genuine conflict about the tenancy’s end date. This was a perplexity, not an evident clerical error, and the reasonable recipient could remain in real doubt whether the tenancy ended on 23 June or 7 July. The notice consequently failed both stages of the test.
4. The court rejected reliance on circumstances surrounding execution beyond the contemporary documents. It also rejected the suggestion that section 19A of the Housing Act 1988 justified a more benevolent interpretation of the earlier law.
5. Disposition. The appeal was allowed. The notice dated 20 December 1995 was declared invalid and ineffective for the purposes of section 20(1)(c) and section 20(2) of the Act. The appeal was allowed with costs, subject to legal aid taxation.

• Court of Appeal (Civil Division): On 14 May 1999, the court allowed the tenant’s appeal against the section 20 determination made by the Brentford County Court.
• Brentford County Court: On 4 December 1998, His Honour Judge Oppenheimer held that the section 20 notice was valid but dismissed the possession claim because the section 21 notice was defective.