Chiltern Railway Company Ltd & Anor v Patel

Where a prescribed declaration may be made in the form, or substantially in the form, specified by legislation, validity depends on whether it performs the prescribed form’s essential functions. Technical differences do not invalidate the declaration unless they thwart or significantly blunt the statutory purpose.

A more solemn statutory declaration may substantially comply with the ordinary declaration required by Schedule 2 to the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003. The converse will not ordinarily follow where the statutory declaration supplies protections required when shorter notice has been given. An endorsement in a lease is sufficient if it records the essential information that the notice was served and an effective declaration was made.

Chiltern granted Patel two short leases of shops at Marylebone Station. Each lease purported to exclude the security of tenure provisions in Part II of the Landlord and Tenant Act 1954. Chiltern had served the prescribed notices more than fourteen days before the leases, but Patel made statutory declarations in the form prescribed for cases where shorter notice is given.

HHJ Peter Cowell made possession orders on 24 May 2007, holding that the leases were validly excluded from statutory protection. Permission to appeal was refused on Patel’s estoppel argument, but granted on the statutory point. The issue was whether the use and recording of the statutory declarations prevented a valid exclusion agreement under section 38A(3).

1. Appeal dismissed. Lord Neuberger gave the leading judgment, with which Arden LJ and Mummery LJ agreed. The possession orders therefore stood.
2. Although paragraph 3 of Schedule 2 applied because notice had been served more than fourteen days before the leases, it required a declaration in, or substantially in, the paragraph 7 form. The correct inquiry was whether the paragraph 8 statutory declaration performed every essential function of the paragraph 7 declaration, having regard to the statutory and commercial context and to any effect of the departures on the form’s purpose.
3. The paragraph 8 declaration conveyed the same material information and confirmation as paragraph 7. Its additional solemnity, reference to the Statutory Declarations Act 1835, and execution before a solicitor or commissioner for oaths made it more formal, not deficient. Its failure to state expressly that notice had been served at least fourteen days earlier did not weaken the statutory protection. Accordingly, it was substantially in the paragraph 7 form and satisfied paragraph 3.
4. The result was not reciprocal. Where paragraph 4 applies, a paragraph 7 declaration would not ordinarily be substantially in the paragraph 8 form, because the latter form provides the additional safeguard of professional involvement when the tenant has received shorter notice.
5. Paragraph 5 did not require the lease to identify the precise paragraph under which the declaration was made. Clause 8 accurately recorded service of the notice and making of an effective declaration. Its reference to paragraph 8 did not invalidate the endorsement or the exclusion agreement.

• Court of Appeal (Civil Division) — dismissed Patel’s appeal and upheld the possession orders: [2008] EWCA Civ 178.
• Central London County Court — HHJ Peter Cowell made possession orders on 24 May 2007, holding that the leases were excluded from Part II of the Landlord and Tenant Act 1954.