Fitzhugh v Fitzhugh

A contractual licence may be terminated for persistent breach where the licensee fails to remedy it after valid notice. Persistence may consist of continuing failure or repeated defaults. Where licensor and licensee overlap, the contractual reference to the licensor may exclude the person who is also a licensee, allowing the remaining licensor to serve notice. A proprietary estoppel claim requires the relevant belief, change of position and unconscionability, none of which was established on the facts.

The parties were two surviving administrators of their father’s intestate estate. The dispute concerned land and buildings dealt with by a 1998 conveyance and licence. The claimant alleged that the defendant had breached the licence by failing to pay the annual fee and using estate land beyond its terms, and had failed in his duties as administrator. The central issue was whether the licence had been validly terminated by notice served by one administrator when that administrator and the recipient were both parties to the licence.

1. The farmhouse and garden had been conveyed to the defendant and his partner. The remaining barns, yard and land belonged to the estate. The defendant knew that he had only a licence over that land. His expenditure did not establish a proprietary estoppel.
2. The annual licence fee was payable. The defendant had never paid it despite repeated requests. A persistent breach could consist of continuing failure or a series of defaults. The failure was persistent, and it was not remedied within the seven working days specified in the notice. It was unnecessary to decide whether it was also grave.
3. A contractual notice provision ordinarily requires notice by all persons constituting the licensor. However, where one licensor is also a licensee, the reference to the licensor may be construed as excluding that person. This avoided an ineffective and commercially unworkable result. The claimant’s notice was valid and terminated the licence. The court had no applicable jurisdiction to grant relief against termination.
4. The defendant had to account for receipts and pay a reasonable sum for business use of estate land. During the licence, valuation was to reflect the unimproved buildings and exclude enhancement attributable to improvements or planning benefits. The defendant was unfit to remain an administrator because his fiduciary and private interests had conflicted and he had given untruthful evidence. The claimant agreed to resign, and new professional administrators were to be appointed.
5. The taking of the account was stayed pending any appeal on the notice issue. Permission to appeal was granted on that issue only. Costs were to be dealt with on the indemnity basis.

This was a first-instance decision. Permission to appeal was granted on whether the licence had been validly terminated by notice served by one licensor. The taking of the account was stayed pending any appeal.