Sumner & Anor v Leicester Mercury Group Ltd

Service of a notice under section 17(2) of the Landlord and Tenant (Covenants) Act 1995 is a pre-condition of a former tenant’s liability for a fixed charge. A former tenant is not liable for charges covered by a notice served after proceedings were issued, although fresh proceedings may be brought once the notice has been served. On an appeal from a refusal of summary judgment, the appellate judge may give summary judgment where the application was made under Part 24 and the case is suitable for summary determination. A second appeal will not be permitted where the proposed point would serve no useful purpose or provide only an insubstantial practical advantage.

The applicant, formerly the tenant under a 20-year lease, remained liable under the lease covenants after assigning the lease. The claimants sought charges from the applicant. A notice under section 17(2) of the Landlord and Tenant (Covenants) Act 1995 was served on 25 July 2001, and proceedings were issued on 20 August 2001. Further charges were covered by a later notice served on 4 October 2001.

A deputy district judge refused the claimants’ Part 24 application for summary judgment. On appeal, His Honour Judge Mayor QC granted Part 24 judgment for the claimants. The applicant sought permission for a second appeal, arguing that the later-notified charges were recoverable in the existing proceedings and that the judge lacked power to determine the matter summarily on appeal.

1. Renewed application refused. Permission to appeal was refused on both proposed grounds.
2. Section 17(2) of the Landlord and Tenant (Covenants) Act 1995 makes service of a notice within six months of the charge becoming due a pre-condition of liability. The later charges were not recoverable when proceedings were issued because the relevant notice had not then been served. The notices were otherwise valid, having been served within the statutory period.
3. The lower court’s error in treating notice as unnecessary did not justify a second appeal. The claimants could have issued further proceedings after 4 October 2001. No useful purpose would have been served by requiring separate proceedings, and any possible costs advantage was not sufficiently substantial.
4. The summary-judgment argument was rejected. The application had been made under Part 24, and the deputy district judge’s order recorded that summary judgment had been refused. It was therefore open to the appellate judge, whose function was limited to review, to give summary judgment if appropriate. The relevant powers were contained in CPR 52.11.3(a) and CPR 52.10.1.
5. The proposed issues did not warrant permission for a second appeal.

• Court of Appeal (Civil Division): refused the renewed application for permission to appeal.
• Leicester County Court: His Honour Judge Mayor QC allowed an appeal from the deputy district judge and granted Part 24 judgment for the claimants.
• Deputy district judge: refused the claimants’ application for summary judgment under Part 24.