Notice On Licensee Must Be Served By All Joint Licensors Even If One Is Also A Licensee

Fitzhugh v Fitzhugh [2012] EWCA Civ 694

Anthony and Harry Fitzhugh were the two surviving administrators of their father's estate. In 1998, the then administrators (Anthony, Harry and another brother) transferred a house to Anthony and his partner. At the same time, they granted Anthony and his partner a licence to use farm outbuildings and various fields. The three administrators were defined as the Licensor and Anthony and his partner were defined as the Licensee. The licence fee was £1 a year and there was a right for the licensor to terminate if the licensee committed any grave or persistent breaches. Anthony failed to pay the annual licence fee. Eventually a firm of solicitors writing "on behalf of all the family members of the late Harry Fitzhugh Senior regarding his estate" wrote to Anthony and his partner requiring them to pay the £7 arrears of licence fees within seven working days. This was not done, so Harry commenced proceedings for possession of the land. The question for determination was whether the notice was properly served.

The High Court held that the notice was effectively served. In the judge's view, to hold that no notice could be given would be an unsatisfactory contractual result which the parties could not have intended. The solution was to construe the reference to the Licensor as referring to all persons who were together the Licensor apart from any person who was also the Licensee.

The Court of Appeal disagreed and allowed Anthony's appeal. Anthony was expressly described as one of the individuals making up the Licensor. A "reasonable person having all the background knowledge" would regard it as improbable that in a short, professionally drawn up document, the Licensor was intending to mean one thing in the opening words and another in the right to terminate. There was nothing to suggest that there should be any change in meaning or that something had gone wrong with the draft. The reasonable person might well also foresee the...