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Limbrick v National Trust – Stephen Jourdan QC, Caroline Shea QC, Ashpen Rajah and Joseph Ollech appear in agricultural tenancy succession dispute

On 16 August 2021, Regional Judge Nigel Thomas determined two preliminary issues in an agricultural tenancy succession claim proceeding in the Property Chamber of the First-tier Tribunal, Agricultural Land and Drainage Division.

He determined that:

1          The retiring tenant was not a party to the succession application, but should be added as a party.

2          The consent direction that the Judge had signed on 17 March 2021 was a nullity, because it specified a date before the direction was made as the “relevant time” when the succession tenancy should begin. The Judge rejected the nominated successor’s argument that the order should be interpreted so as to render it valid, or that there was an implied term rendering it valid, or that the slip rule could be used to render it valid.

The parties were represented by Stephen Jourdan QC for the retiring tenant, instructed by Roythornes, Caroline Shea QC and Ashpen Rajah for the nominated successor, instructed by Michelmores,  and Joseph Ollech for the landlord, instructed by Loxley.

The facts

The dispute relates to a tenancy of an agricultural holding granted before 12 July 1984, so that the succession provisions in part IV of the Agricultural Holdings Act 1986 apply.

In March 2019, the tenant served a retirement notice on the landlord nominating his son as successor. In April 2019, an application was made to the Tribunal for a s.53(7) succession direction entitling the son to a tenancy of the holding. The application was signed by the retiring tenant, as required by s.53(3)(b). The landlord subsequently agreed to the succession. In December 2020, the landlord and the son jointly applied to the Tribunal for an order making a s.53(7) direction. This attached a draft Consent direction specifying the “relevant time” for the purposes of s.55 as 25 December 2020.

In the meantime, a dispute arose between the retiring tenant and his son and in January 2021 the retiring tenant applied to be joined to the proceedings to dispute the succession claim.  However, this application did not come to the attention of the Judge, and on 17 March 2021, the Judge signed the Consent direction in the form submitted by the son and the landlord. It said that the Tribunal directed under s.53 that the son was entitled to a tenancy of the holding, that the relevant time for the purposes of s.55 was 25 December 2020, and that the tenancy should commence on that date.

The Tribunal then became aware of the retiring tenant’s application to be joined, and directions were made for the determination of four preliminary issues. A hearing took place on 3 August 2021 before Judge Thomas. He directed that he would hear submissions on the first two of those issues and then deliver a judgment on those, before considering the remaining issues. On 16 August 2021, the Tribunal published a judgment determining those issues.

The issues were:

1          Should the retiring tenant be joined as a party?

2          Was the consent direction signed on 17 March 2021 valid?

Should the retiring tenant be joined as a party?

The retiring tenant argued that he was already a party to the succession application or, if not, should be joined.

The Judge rejected the first argument. He considered that the 1986 Act was framed on the basis that a tenant who is contemplating retiring will support the application.  Where however there is a dramatic fracture in family relations after the application is made, and the retiring tenant in consequence has second thoughts, then the remedy is for the retiring tenant to apply to be joined to the application and to make submissions thereafter.

However, he accepted the second argument and directed that the retiring tenant should be added as a party, both because his rights would be directly affected by the Tribunal’s orders and in order to assist the Tribunal with submissions on the question of whether the consent direction was valid.

He considered authorities on CPR rule 19.2(2), from which he deduced three principles:

(1)       that the rules are drawn in wide general terms;

(2)       a person whose rights may be affected by a particular decision has a right to be heard as a party;

(3)       in appropriate cases a person may be joined as a party to assist the court.

He considered that rule 10 of the Tribunal Procedure (First-tier) (Property Chamber) Rules 2013 was broader in scope than CPR rule 19.2(2), but even if rule 19.2(2) had applied he would have unhesitatingly joined the retiring tenant, given that his rights might be affected by the Tribunal’s decision.

Was the consent direction void?

The nominated successor submitted that, on a proper construction of the terms of the consent direction, it should be read as meaning that the relevant time was 25 December 2020 or, if later on the day immediately following such date as the Tribunal shall make the s.53(7) direction. Alternatively, such a term should be implied.

The Tribunal rejected this argument. There was no common view shared by the parties as to when the “relevant time” should be, other than 25 December 2020. The Tribunal should have specified a relevant time after the date of the order when in such circumstances the Tribunal could have consulted the parties.

The nominated successor alternatively argued that the Tribunal had power to correct the error in the consent direction under rule 50 or rule 51(1) of the Tribunal Procedure (First-tier) (Property Chamber) Rules 2013.

The Judge interpreted those rules as giving a Judge power to alter the terms of an order if the Judge feels sure that he would have made the order in its altered form if he had been asked to do so.

The Judge held that was not the position here. It was impossible to know how the Tribunal could correct the consent direction by inserting a date for the “relevant time”, as the nominated successor and landlord had not even considered what the “relevant time” should be, namely a date falling after 18 March, or how the Tribunal was able by itself to determine such date or what it should be. The Tribunal does not make an order determining the “relevant time “unless it has some basis upon which it can consider the matter. The date of 25 December 2020 as it appeared in the consent direction should have been struck out and the parties asked for an agreed date. If for some reason, (which would be difficult to envisage) there was no agreement then the Tribunal would proceed to specify a relevant time on the basis of the respective parties’ representations. However by the time the consent direction was signed matters had moved on and the retiring tenant and nominated successor were in dispute which required that the retiring tenant be joined to the proceedings and heard on the various applications raised by him.

There is a copy of the Tribunal’s judgment here.