The meaning of "or"

​A look at the recent Court of Appeal decision of Grimes v The Trustees of the Essex Farmers and Union Hunt.
  • Submitted 31 August 2017
  • Applicable Law UK (England & Wales)
  • Topic Real Estate

Following on from a recent decision looking at the meaning of "all" the meaning of "or" has now come under the spotlight.

Background

This case concerned an agricultural tenancy of 121 acres of land in Althorne, near Burnham-on-Crouch in Essex. The tenant was Mr Grimes who had farmed the land for many years under successive tenancy agreements. The Trustees of the Essex Farmers and Union Hunt were Mr Grimes’ landlord (the Trustees).

Mr Grimes last tenancy was for a three year term expiring on 30 September 2012 and the Trustees gave notice to quit in relation to the tenancy in July 2011. Mr Grimes’ position was that the notice was not validly served.

The issue

The tenancy contained the following provision in relation to service of notices:

"Either party may serve any notice (including any notice in proceedings) on the other at the address given in the Particulars [at the beginning of the tenancy agreement] or such other address as has previously been notified in writing"

Did this mean that:

(a) when serving a notice a party could serve it at the address given in the particulars or some other address that had been notified to them (the party serving the notice in effect having a choice; either option being valid), or

(b) Notification of a new address meant that service at a previous address was no longer valid.

The County Court judge preferred option (a) which meant the notice was validly served and Mr Grimes appealed.

The detail

The address given in the particulars for Mr Grimes was 24 Glebe Way, Burnham-on-Crouch and this was where the Trustees had served the notice to quit. However, this appears to have been an oversight in the agreement as Mr Grimes had left this address in 2005 when he moved to 44 Maple Way, Burnham-on-Crouch. The County Court held that Mr Grimes had successfully notified the Trustees of his change of address. However, by favouring option (a) above in relation to the construction of the clause the notification of Mr Grimes change of address was of course irrelevant and the County Court found the notice to quit had been validly served at his old address.

Why did it matter?

Having served the notice to quit the Trustees went on to grant lease of the farm to Mr Baker who took occupation on 01 October 2012. Mr Grimes was at the farm carrying out work that day and according to the county court judgement left under "silent protest". The quantum of Mr Grimes damages claim was judged to be £31,500.

The outcome

The Court of Appeal disagreed with the County Court and held that the parties could not sensibly have intended that the serving party should continue to have the option of serving at an old address once they had been notified of a new address.

The Court of Appeal held that the "disjunctive language of the clause envisaged only a single address for service. It was noted that in a "suitable context" the word "or" can be read as equivalent to "and", or as expressing a non-exclusionary alternative equivalent to "and/or"’ but that was not the case here. Having held that the two addresses were "true alternatives"’ the Court of Appeal found that ‘the parties must have intended that the new address should be a substitute for its predecessor, and not that it should offer a choice which did not exist before notification of the new address’. In the reasoning it was noted that this was a six year agreement and that as a matter of commercial common sense "the parties must have intended that the new address, once duly notified, should supersede the original one shown in the Particulars."

The Court of Appeal commented that the relevant wording has to be considered in the context of the contract as a whole and drawing on Wood v Capita Insurance Services Ltd noted that that it was not a "literalist exercise". The Court of Appeal did not agree with the County Court judge’s reasoning that it would have been a simple matter to draft the clause in another way and the tenant could have made arrangements for forwarding.

Having lost the point on the construction of the service of notice clause the Trustees’ position was that Mr Grimes had not in fact notified them of the change of address. However the Court of Appeal noted the high threshold required to revisit the finding of fact of a trial judge: "whether the decision under appeal is one that no reasonable judge could have reached." The Court of Appeal held it could not undo the County Court judge’s decision on this point and Mr Grimes was awarded £31,500 in damages together with interest and costs.

Comment

This is one of those decisions which keeps lawyers awake at night. A piece of drafting whose intention perhaps seems obvious on the face of it but for which confirmation of the construction of the clause requires a trip to the Court of Appeal.

Grimes v The Trustees of the Essex Farmers and Union Hunt [2017] EWCA Civ 361

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