Omar Parks Ltd v Elkington Mobile homes; Occupancy; Statutory interpretation

112-mobilehome-logcabin-kithomes

Omar Parks Ltd v Elkington
Ron Grundy (Melbourne) Ltd v Bonehevo
Court of Appeal (Civil Division)
08 July 1992
Case Analysis
Where Reported
[1992] 1 W.L.R. 1270; [1993] 1 All E.R. 282; (1992) 24 H.L.R. 690; (1993) 65 P. & C.R. 26; [1992] 42 E.G. 108; [1992] E.G. 98 (C.S.); (1992) 136 S.J.L.B. 229; [1992] N.P.C. 96; Times, July 23, 1992
Case Digest
Subject: Planning
Keywords: Agreements; Mobile homes; Occupancy; Statutory interpretation
Summary: Mobile home; protected site; occupation as sole or main residence; owner living elsewhere whilst repairing mobile home; in residence at time of hearing; whether date of trial relevant date for occupation question
Abstract: The court heard two cases together in which conflicting decisions had been reached by the county court as to the construction of the Mobile Homes Act 1983, Sch.1 para.5 which implied into any agreement: "The owner shall be entitled to terminate the agreement forthwith if, on the application of the owner, the court is satisfied that the occupier is not occupying the mobile home as his only or main residence". In both cases site owners of protected sites had applied for possession of pitches occupied by mobile homes on the grounds that they were not the main residence of their owners. In one case the site owner succeeded, in the other the application failed. In the former case OP was granted possession of the pitch from E on the grounds that although E was in occupancy of the land on the date of the court hearing he had not been in occupation when the application was made. E appealed.

Held: Appeal allowed. The crucial words of para.5 were "the court is satisfied that the occupier is not occupying". The court concluded that this was on the date on which the application was heard and not when it was made. As such E was entitled to possession and the court had been correct in its construction of the implied terms in the second case.
Judge: Nourse, L.J.; Stocker, L.J.; Beldam, L.J.
Counsel: For E: Andrew Arden Q.C. and Julian Lynch. For second defendant: Richard Quenby. For OP: Timothy D Howard.
Solicitor: For E: Lance Kent & Co (Hemel Hempstead). For second defendant: Dixons (Northwich). For OP: Tozers (Exeter).
All Cases Cited
Sort by:
Alexander v Mohamadzadeh
(1986) 18 H.L.R. 90; (1986) 51 P. & C.R. 41; [1985] 2 E.G.L.R. 161; (1985) 276 E.G. 1258; Times, November 21, 1985; CA (Civ Div)
Betty's Cafes Ltd v Phillips Furnishing Stores Ltd (No.1)
[1959] A.C. 20; [1958] 2 W.L.R. 513; [1958] 1 All E.R. 607; (1958) 102 S.J. 228; HL
Wilson v Fynn
[1948] 2 All E.R. 40; [1948] W.N. 242; (1948) 92 S.J. 324; KBD
Benninga (Mitcham), Ltd v Bijstra
[1946] K.B. 58; CA
Lewis & Allenby (1909) Ltd v Pegge
[1914] 1 Ch. 782; Ch D
Treloar v Bigge
(1873-74) L.R. 9 Ex. 151; (1874) 22 W.R. 843; Ex Ct
Key Cases Citing
Considered by
Johnston Publishing (North) Ltd v Revenue and Customs Commissioners
[2007] EWHC 512 (Ch); [2007] Bus. L.R. 1172; [2007] S.T.C. 1481; [2007] B.T.C. 405; [2007] S.T.I. 540; Official Transcript; Ch D
All Cases Citing
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Mentioned by
Johnston Publishing (North) Ltd v Revenue and Customs Commissioners
[2008] EWCA Civ 858; [2009] 1 W.L.R. 1349; [2009] Bus. L.R. 629; [2008] S.T.C. 3116; [2008] B.T.C. 443; [2008] S.T.I. 1873; Official Transcript; CA (Civ Div)
Considered by
Johnston Publishing (North) Ltd v Revenue and Customs Commissioners
[2007] EWHC 512 (Ch); [2007] Bus. L.R. 1172; [2007] S.T.C. 1481; [2007] B.T.C. 405; [2007] S.T.I. 540; Official Transcript; Ch D
Mentioned by
West (Inspector of Taxes) v O'Neill
[1999] S.T.C. 147; 71 T.C. 314; [1999] B.T.C. 32; Times, February 9, 1999; Official Transcript; Ch D
Legislation Cited
Landlord and Tenant Act 1954 (c.56) s.30(1)(f)
Mobile Homes Act 1983 (c.34) s.1(1)
Mobile Homes Act 1983 (c.34) s.1(5)
Mobile Homes Act 1983 (c.34) s.2
Mobile Homes Act 1983 (c.34) s.2(1)
Mobile Homes Act 1983 (c.34) s.3(2)
Mobile Homes Act 1983 (c.34) s.5(3)
Mobile Homes Act 1983 Part I
Mobile Homes Act 1983 Sch.1
Mobile Homes Act 1983, Sch.1
Mobile Homes Act 1983, Sch.1 para.5
Journal Articles
Mobile home - site owner applying for possession of pitch - mobile home lawfully occupied as only or main residence at date of hearing but not at date of application.
Agreements; Caravan sites; Implied terms; Mobile homes; Occupancy.
C.L.B. 1993, 19(2), 554-555

*1270 Omar Parks Ltd. v Elkington
Ron Grundy (Melbourne) Ltd. v Boneheyo
Court of Appeal
8 July 1992
[1992] 1 W.L.R. 1270
Nourse, Stocker and Beldam L.JJ.
1992 June 17, 18; July 8
Mobile Homes—Written agreement—Statutory terms—Application by site owner for possession of pitch—Mobile home lawfully occupied as only or main residence at date of hearing but not at date of application—Relevant date for determining occupation—Mobile Homes Act 1983 (c. 34), Sch. 1, Part I, para. 5
In the first case, the defendant purchased a dilapidated mobile home and became the assignee of an agreement entitling him to a pitch on a site that was a protected site for the purposes of the Mobile Homes Act 1983. The defendant spent some three years carrying out repairs to the home during which time he lived elsewhere. The plaintiff, the site owner, applied for possession of the pitch on the ground that the defendant was not occupying the home as his only or main residence within the meaning of paragraph 5 of Part I of Schedule 1 to the Act of 1983, as implied into the agreement by section 2(1) of the Act.1 By the time that the case came on for hearing in the county court the defendant had completed the work and moved into the mobile home. The judge made an order for possession, holding that the plaintiff was entitled to terminate the agreement because the defendant was not at the time the application was made occupying the home as his only or main residence.
In the second case, the plaintiff site owner sought an order for possession of a pitch on a protected site occupied by the defendant, who was not then entitled to the protection given by the Act of 1983 because the benefit of an agreement between the plaintiff and the defendant's father for the stationing of the home on the site had not been assigned to her. Subsequently, before the hearing, the agreement was assigned to the defendant. The recorder held that the agreement enured for the benefit of the defendant, and that her occupation was to be judged as at the date of the hearing and not at the time the proceedings were commenced, and he dismissed the plaintiff's application.
On appeal by the defendant in the first case and by the plaintiff in the second case: —
Held, allowing the appeal in the first case and dismissing the appeal in the second case, that there was no reason why the words of the implied term in paragraph 5 of Part I of Schedule 1 to the Act of 1983 should not bear their plain and ordinary meaning; and that so construed the provision required the nature of the occupation of a mobile home to be considered as at the date of the hearing and not as at the time at which a site owner made his application to the court (post, pp. 1273E–1274B, G–H, 1276C, 1277D–E).
The following cases are referred to in the judgment of Nourse L.J.:
Benninga (Mitcham) Ltd. v. Bijstra [1946] K.B. 58; [1945] 2 All E.R. 433, C.A. *1271
Betty's Cafes Ltd. v. Phillips Furnishing Stores Ltd. [1959] A.C. 20; [1958] 2 W.L.R. 513; [1958] 1 All E.R. 607, H.L.(E.)
Jessop v. Hanwell (unreported), 4 November 1988; Court of Appeal (Civil Division) Transcript No. 906 of 1988, C.A.
Lewis & Allenby (1909) Ltd. v. Pegge [1914] 1 Ch. 782
Wilson v. Fynn [1948] 2 All E.R. 40
The following additional case was cited in argument:
Alexander v. Mohamadzadeh (1985) 51 P. & C.R. 41, C.A.
OMAR PARKS LTD. v. ELKINGTON
APPEAL from Watford County Court.
The defendant, Mr. Victor Elkington, the occupier of a mobile home stationed on a pitch on a protected site at Wiggington, near Tring, appealed against the judgment of Judge Stockdale sitting at Watford County Court on 22 November 1991 declaring that the plaintiff, Omar Parks Ltd., was entitled to terminate an agreement permitting the defendant to station his mobile home on the pitch, and ordering the defendant to give up possession of the pitch. The main ground of his appeal, set out in a notice dated 16 December 1991, was that the judge had erred in law in holding that under paragraph 5 of Part I of Schedule 1 to the Mobile Homes Act 1983 the relevant time for deciding whether the plaintiff was occupying the mobile home as his only or main residence was the date of issue of the originating application and not the date of the hearing.
RON GRUNDY (MELBOURNE) LTD. v. BONEHEYO
APPEAL from Northwich County Court.
The plaintiff site owner, Ron Grundy (Melbourne) Ltd., appealed against the judgment of Mr. Recorder Rees sitting at the Northwich County Court given on 8 November 1991 whereby the recorder, inter alia, dismissed the plaintiff's claim that the defendant, Miss Valerie Boneheyo, deliver up possession of a pitch on a protected site at Woodlands Park, Allstock. The grounds of appeal, set out in a notice dated 2 December 1991, were, inter alia, that the recorder had erred in law in holding that, in deciding whether the defendant pursuant to an agreement occupied the mobile home as her only or main residence, on the plaintiff's application for determination of the agreement pursuant to the provisions of paragraph 5 of Part I of Schedule 1 to the Act of 1983, the court should have regard to the facts and state of affairs as they existed at the date of the determination by the court of the issue and not as they existed at the date of the issue of the originating application seeking the determination of the issue.
By a further notice also dated 2 December the plaintiff appealed against the judgment of the recorder so far as it was in favour of the defendant's father, Mr. Clive Boneheyo, in separate proceedings brought by the plaintiff against Mr. Boneheyo.
The facts are stated in the judgment of Nourse L.J.


Representation
Andrew Arden Q.C. and Julian Lynch for the defendant in the first appeal.
Timothy D. Howard for the plaintiffs in both appeals.
Richard Quenby for the defendant in the second appeal.
Cur. adv. vult.
*1272
NOURSE L.J.
8 July. The following judgments were handed down.
By paragraph 5 of Part I of Schedule 1 to the Mobile Homes Act 1983 the following term is implied in any agreement to which the Act applies:
“The owner shall be entitled to terminate the agreement forthwith if, on the application of the owner, the court is satisfied that the occupier is not occupying the mobile home as his only or main residence.”
The principal question arising on these appeals is whether that term requires the occupation of the home to be judged as at the date on which the site owner applies to the court or the date on which the application is heard and determined. Opposite decisions have been given in the courts below. So now we must resolve the conflict.
This is the only question arising on the appeal in Omar Parks Ltd. v. Elkington. It is therefore convenient to consider that case first. The plaintiff, Omar Parks Ltd., is the owner of Beech Park, Chesham Road, Wigginton, near Tring, Hertfordshire, which is a protected site for the purposes of the Act of 1983. The defendant, Mr. Victor Elkington, is the owner of the mobile home stationed on pitch 8 on that site. He purchased it for £21,500 on 10 September 1988. He also became the assignee of an agreement between the previous owners of the home and the predecessors in title of the plaintiff, under which he was entitled to station it on that pitch subject to the terms of the agreement and the payment of the pitch fee. It is agreed that that was an agreement to which the Act of 1983 applied (see section 1(1)) and that by virtue of section 2(1) there was implied in it, amongst others, the term set out in paragraph 5 of Part I of Schedule 1 (“the implied term”). The home was some 14 years old and required repairs. The defendant agreed to carry them out within 12 months. However, for reasons which need not be explored, it took him the best part of three years to complete the bulk of them at a cost of about £12,500.
On 25 July 1991 the plaintiff issued an application in the Hemel Hempstead County Court seeking possession of pitch 8 on the ground that the defendant was not occupying the home as his only or main residence. The application was heard and determined by Judge Stockdale in the Watford County Court on 22 November 1991. The judge found that the defendant was not occupying the home either as his only residence or as his main residence before 1 September 1991 but that he had been occupying it as his only residence from and after that date — in other words that the occupation required by the implied term did not exist at the date of the application to the court but did exist at the date on which it was heard and determined. No appeal has been brought against that finding. However, the judge was of the view that it was the date of the application to the court at which the required occupation had to exist. He made an order for possession accordingly. The defendant now appeals against that order, which has been stayed by agreement in the meantime.
The outcome of the question depends on the true construction of the implied term read with the other provisions of the Act of 1983. Part I of Schedule 1 sets out four implied terms entitling the occupier or the site owner, as the case may be, to terminate the agreement, the forms other than that in paragraph 5 being set out in paragraphs 3, 4 and 6. The *1273 term set out in paragraph 3 entitles the occupier to terminate the agreement by not less than four weeks' notice in writing. Those set out in paragraphs 4 and 6 entitle the site owner to terminate the agreement, in the former case “forthwith” and in the latter at the end of “a relevant period,” if, “on the application of the owner, the court is satisfied…”
The critical words in the implied term are “the court is satisfied that the occupier is not occupying.” If those were the only words on which the question depended, it could not be doubted that the occupation must be judged as at the date on which the application is heard and determined. Such would be the plain and ordinary meaning assigned to the words by the double use of the present tense. The court cannot be presently satisfied of the present existence of a given state of facts before an application is heard. But it is argued that the words “on the application of the owner,” coupled with the absurdities flowing from the contrary view, displace this plain and ordinary meaning. That argument was accepted by Judge Stockdale, the essence of whose decision was expressed thus:


“[Counsel for the plaintiff] says it must relate to the date of the application, otherwise all the site owner can do is come to the court and say: ‘I've no idea if I will succeed on the day of the hearing, but will the court please fix a date.’ No one will know until the evidence is given on the day of the hearing whether the [defendant] is occupying or not. It doesn't matter if he moved in on the day of the hearing. There would be chaos. I find this interpretation offensive — it is a strange way for the court to proceed. It would be strange if the court had to deal with tentative applications — ‘fix a date, we will then see if we have a case or not.’ Generally speaking, the courts determine disputes in existence on the day proceedings are commenced.”
In my judgment these considerations are not sufficient to displace the plain and ordinary meaning of the critical words. In contrast with an occupier's entitlement under paragraph 3 to terminate the agreement by notice, a site owner's entitlement under paragraph 5 does not arise unless and until the court is satisfied in the terms of that paragraph, a satisfaction which can only be declared if and when an application is made to it. Since the site owner will be the party who wants the declaration to be made, it is natural to assume that the application will be made by him. In my view the words “on the application of the owner” do no more than recognise that state of affairs.
It is perfectly true, as was pointed out by Mr. Howard on behalf of the plaintiff — he also appeared for the site owner in the other appeals — that if that is the only function of the words “on the application of the owner,” they could just as well have been omitted. If a long experience of legislative drafting had brought with it a conviction that an Act of Parliament never included words of surplusage, that would no doubt have been a persuasive point. But that is not our experience and I for one do not complain of it. An emphasis of the obvious, unnecessary to a judge who has had the benefit of argument, may yet be welcome to a busy practitioner who has not. Moreover, as was pointed out by Mr. Arden, on behalf of the defendant, there are other provisions of the Act of 1983 of a like character, not only in paragraphs 4 and 6. Thus section 1(5) provides for the occupier to apply to the court if the site owner fails to comply with that section. More significantly, subsections (2) and (3) each provide for the court to make an order “on the application of either party.” I think that the wording of paragraphs 4, 5 and 6 was intended to achieve consistency with these other provisions. I doubt whether the words “on the application of the owner” were intended to have any temporal significance. If they were, they can only refer to the time when the application is heard and determined. It is impossible to give them the much greater temporal significance of requiring that the occupation of the home be judged as at the date on which the application is made.
I am also unconvinced that any absurdity flows from giving the critical words their plain and ordinary meaning. Indeed, as Mr. Arden observed, if the contrary view were correct, a site owner, simply by issuing an application and without prior notice, could seemingly establish his entitlement to terminate an agreement against an occupier who, in circumstances such as those experienced by the defendant, had been unable to move into his home and was still living elsewhere. Such a provision would be most unusual and in stark contrast with paragraph 4, which requires notice to remedy to be given to the occupier before an application to terminate the agreement can be brought on the ground of a breach of one of its terms. If you were looking for an absurdity flowing from an Act whose purpose is to protect the occupation of residential premises, you would hardly need to look further than that. Moreover, there have long been similar provisions in other legislation — for example in the Rent Acts — where the date on which it had to be determined whether the landlord reasonably required the premises for his own occupation was the date of the hearing: see Benninga (Mitcham) Ltd. v. Bijstra [1946] K.B. 58. A similar rule applies to the date on which a landlord must establish his intention to demolish or reconstruct the premises, or to occupy them for the purposes of a business to be carried on by him, within section 30(1)(f) or (g) respectively of the Landlord and Tenant Act 1954: see Betty's Cafes Ltd. v. Phillips Furnishing Stores Ltd. [1959] A.C. 20. I therefore see no reason why Parliament should not have intended a similar rule to apply to the implied term under the Act of 1983.
We were referred to only one authority under the Act of 1983 — the decision of this court in Jessop v. Hanwell (unreported), 4 November 1988; Court of Appeal (Civil Division) Transcript No. 906 of 1988, where Fox L.J. said:
“the court has no alternative but to remit the issue of whether the mobile home was the main residence of the respondent at the date of the originating application to the county court.”
The making of an order in that form would appear to give strong support to the contention of the plaintiff. However, it is clear, both from the judgments and from information given to us by the plaintiff's solicitors, who acted for the site owner in that case also, that the date at which the occupation had to be judged was not there in issue. No argument was heard on that point. So that decision does not bind us to arrive at a conclusion contrary to that which, after hearing full argument, I believe to be correct. In the first of the two cases I would therefore allow the appeal and discharge the order for possession.


I now turn to Ron Grundy (Melbourne) Ltd. v. Boneheyo, in which the material facts are these. The plaintiff, Ron Grundy (Melbourne) Ltd., is the owner of Woodlands Park, Wash Lane, Allstock, Cheshire, *1275 which is also a protected site for the purposes of the Act of 1983. On 22 December 1985 Mr. Clive Boneheyo became the owner of the mobile home stationed on the pitch known as 22 West Site. He acquired it by way of gift from his father, who had stationed first one and then another mobile home on that pitch since 1976. Mr. Boneheyo also became the assignee of an agreement dated 1 January 1976 and made between his father and the predecessors in title of the plaintiff, under which he was entitled to station a mobile home on 22 West Site, subject to the terms of the agreement and the payment of the pitch fee. Again it is agreed that that was an agreement to which the Act of 1983 applied and that the implied term was implied in it. The nature of Mr. Boneheyo's occupancy of the home between December 1985 and March 1990 is unclear. What is clear is that in the latter month he ceased to occupy it at all and that between then and August 1990 it was unoccupied. On 4 April 1990 the site was acquired by the plaintiff. In August 1990, without the knowledge or approval of the plaintiff, Mr. Boneheyo's daughter, the defendant, Miss Valerie Boneheyo, moved into the home. She has since occupied it as her only residence.
On 3 December 1990 the plaintiff commenced proceedings in the Northwich County Court against the defendant seeking possession of 22, West Site on the ground that she had wrongfully occupied it and was therefore a trespasser. It is agreed that at that stage the plaintiff's contention was correct. Although the defendant had taken occupation of the home with the knowledge and approval of Mr. Boneheyo, there had been no assignment to her of the 1976 agreement. No further step was taken in the proceedings against the defendant at that stage. No doubt it was realised that the 1976 agreement could only be terminated in proceedings against Mr. Boneheyo. In any event, on 14 January 1991 the plaintiff's solicitors wrote to the Boneheyos' solicitors stating that they were commencing proceedings against Mr. Boneheyo for leave to terminate the 1976 agreement under the Act of 1983. On 15 January the Boneheyos' solicitors wrote to the plaintiff's solicitors:
“we hereby give you formal notice on behalf of our clients of their request that your client consent to an assignment of the agreement dated 1 January 1976, to which the Mobile Homes Act 1983 applies, to [the defendant]. If we do not hear from you within the next seven days we shall assume that such consent is withheld.”
That letter was received by the plaintiff's solicitors on the following day, 16 January. No reply having been received, on 24 January Mr. Boneheyo gave the defendant the mobile home and assigned to her by deed the benefit of the 1976 agreement. On the following day, 25 January, the plaintiff's solicitors wrote to the Boneheyos' solicitors:
“our client does not consent to an assignment of the agreement dated 1 January 1976 to [the defendant]. It is clearly inappropriate for such consent to be given, or indeed sought, in view of the two actions that have been started, quite apart from the other factors such as [the defendant's] behaviour since she started living on the park and the fact that a section has been built onto the front of the mobile home so as to make it non-mobile.”
Meanwhile, on 17 January 1991 the plaintiff had issued an application in the Northwich County Court against Mr. Boneheyo seeking a declaration that it be at liberty to terminate the 1976 agreement and an *1276 order for possession of 22 West Site, on the ground that he was not occupying the home as his only or main residence. Both sets of proceedings were heard and determined by Mr. Recorder Rees on 7 and 8 November 1991. He dismissed them with costs and made a declaration that the 1976 agreement enured for the benefit of the defendant. The plaintiff now appeals in both cases.
As I have said, it is agreed that the defendant was not entitled to the protection of the Act of 1983 when proceedings were commenced against her on 3 December 1990. At that stage the 1976 agreement had not been assigned to her. It did not therefore enure for her benefit under section 3(2): see below. Her case is that the 1976 agreement was lawfully assigned to her on 24 January 1991, from which date she was, by virtue of her occupation of the home as her only residence, within the protection of the implied term. So the first question which the recorder had to decide was the same as that which arose in Omar Parks Ltd. v. Elkington. He decided it in favour of the defendant, holding that the occupation of the home had to be judged as at the date on which the application was heard and determined. For the reasons already given, his decision of that question was correct.
The second question which the recorder had to decide was whether the assignment of 24 January 1991 was effective, so that the 1976 agreement did indeed enure for the benefit of the defendant at the date of the hearing and determination of the application in November 1991. In order that that question may be considered, reference must be made to two further provisions of the Act of 1983. Section 3(2) provides:
“Where an agreement to which this Act applies is lawfully assigned to any person, the agreement shall enure for the benefit of and be binding on that person.”
Paragraph 9 of Part I of Schedule 1 sets out another implied term:
“The occupier shall be entitled to give the mobile home, and to assign the agreement, to a member of his family approved by the owner, whose approval shall not be unreasonably withheld.”
As to those provisions, it is clear, first, that the defendant was a member of Mr. Boneheyo's family for the purposes of paragraph 9: see section 5(3). Secondly, it was accepted by Mr. Howard on behalf of the plaintiff that the 1976 agreement was “lawfully” assigned to the defendant within section 3(2) if the plaintiff's approval was both sought and unreasonably refused before the assignment was executed. There can be no doubt that approval was sought by the Boneheyos' solicitors' letter of 15 January 1991 and the plaintiff does not impugn the recorder's finding that, if it was refused, it was refused unreasonably. There having been no express refusal until 25 January, the single issue which remains in dispute is whether approval was impliedly refused before 24 January when the assignment was executed. If it was not, then, notwithstanding the subsequent express refusal, the 1976 agreement was not “lawfully” assigned and the plaintiff is entitled to succeed on its appeals.
Although the recorder's decision necessarily imported a holding that the plaintiff's approval had been impliedly refused, he did not discuss that point. He rather assumed the refusal and concentrated on its unreasonableness. However, both sides are agreed that the question whether there was an implied refusal or not depends on whether the plaintiff was or was not given a reasonable time to consider the matter *1277 and to give or withhold its consent: see Wilson v. Fynn [1948] 2 All E.R. 40, 42F, per Denning J.
The question is agreed to depend on the inferences which should be drawn from the contemporaneous correspondence between the parties and the surrounding circumstances of the case. The Boneheyos' solicitors' letter of 15 January requesting approval was received by the plaintiff's solicitors on 16 January. Two days earlier the latter had written to the former stating that they were commencing proceedings against Mr. Boneheyo. Those proceedings were not commenced until 17 January and it may be assumed that the instructions to commence them could still have been countermanded on 16 January. The letter of 15 January stated that if nothing was heard from the plaintiff's solicitors within the next seven days it would be assumed that consent was withheld. The instructions to commence proceedings were not countermanded and nothing further was heard from the plaintiff's solicitors within seven days from 16 January, i.e., before the close of business on 23 January. In all the circumstances, and bearing in mind the hostile state of play between the parties at that time, I think that those seven days were a reasonable period for the plaintiff to consider the matter and to give or refuse its approval. The facts of the case are broadly comparable with those of Lewis & Allenby (1909) Ltd. v. Pegge [1914] 1 Ch. 782, on which Mr. Quenby, for the defendant, relied.
For these reasons I am of the opinion that the plaintiff's approval was impliedly refused. The 1976 agreement was lawfully assigned to the defendant by the assignment of 24 January 1991. In this case I would therefore dismiss the appeals.
STOCKER L.J.
I agree.
BELDAM L.J.
I also agree.
H. D.
Representation
Solicitors; Lance Kent & Co., Berkhamsted; Tozers, Exeter; Dixons, Northwich.