Compensation
Cases
Robert M’Neill v Dundalk Total Abstinence Society and another
Circuit Case.
1 March 1910
[1910] 44 I.L.T.R 165
Cherry L.J.
Cherry, L.J.
I think that upon the whole this case is a business-like case, and the claim is a business-like claim. As to the claim to be paid for such things as flooring, glazing, and plastering, I do not regard such matters as coming within the meaning of the words “permanent buildings” in s. 2 (5) of the Town Tenants Act. It was admitted that all these repairs, together with the other improvements, were made over ten years before the date of the claim, and as I do not regard any of them as permanent buildings within the Act, I can allow nothing for improvements. I also disallow that portion of the landlords’ set-off which deals with dilapidations, and so on. As to the other part of the claim, I think there has been a disturbance. The tenant was very unpunctual in his rent, but the landlords have taken a form of ejectment which precludes the tenant putting himself right by paying the rent. He offered, as he says, before eviction, and certainly by his solicitor a fortnight after eviction, to pay the full rent due and costs of ejectment, but this was refused by the landlords, which would seem to show that the tenant’s view was correct, and that he was evicted for something other than unpunctuality in payment of his rent. Having come to that opinion I do not think the landlords can now use the non-payment of rent and defeat his claim under the Act. I accordingly think there was no good and sufficient cause within s. 5 of the Act for evicting the tenant. As to the amount of compensation for goodwill, the takings and the net income have, in my opinion, been greatly exaggerated, as is perhaps natural when no books were kept, but I think £50 a year a not unfair sum to be taken as the net profits of this business. I will allow as compensation a sum equal to two years’ net profits—namely, £100. From this I deduct the rent due to the landlords to May 1, 1909— namely, £36 19s. As to the further claim in the set-off for £7 6s. 10d., the costs of the two ejectment processes and of getting up possession, I think that these costs come within the scope of s. 18 of the Landlord and Tenant (Ir.) Act, 1870, incorporated with this Act by s. 12, and, accordingly, I allow these costs. I accordingly reverse the decision of the County Court, and give a net decree for £55 14s. 2d., with costs both here and below.
Markey v Malley
8 July 1909
[1909] 43 I.L.T.R 272
Wright J.
Wright, J., who delivered judgment in Dublin, on Nov. 9, 1909, referred to the above cases, and also to the case of M’Glade v. Hutchinson, 43 Ir. L. T. R. 238, decided in the meanwhile by Mr. Justice Dodd on appeal at Belfast Assizes, and said that the present case involved the consideration of ss. 2, 5, and 12 of the Town Tenants Act, 1906. As to the first point in the case—namely, the improvements—they were all, with the exception of the yard gate, which was trivial, and for which he allowed nothing, made more than ten years before the date of the claim, and he held that none of them were permanent buildings within the meaning of s. 2 (5) of the Act, and, therefore, he did not allow anything in respect of them. In the second place, as to goodwill, s. 5 of the Act provides for compensation if the landlord turns the tenant out without good and sufficient cause. Section 12, again, incorporates with the Act ss. 18, 21, 23, 26 and 27 of the Landlord and Tenant (Ir.) Act, 1870, and of these sections s. 18 enacts in regard to proceedings that either party may plead a set-off, that the Court shall consider such set-off, and shall have jurisdiction to ascertain what sums shall be deemed due by the tenant under a set-off in respect of unliquidated damages under s. 3 of that Act. Now, s. 3 gives compensation to the tenant for the loss sustained in quitting his holding, and, as it was passed, laid down an elaborate scale of compensation. It then goes on to make provision for allowing certain matters to be set-off, in terms very similar to s. 6 of the later Act of 1906. Applying these provisions to the case now before him, he found that the profits made by this house came from three sources—( a ) the posting business, ( b ) the hotel business, and *273 ( c ) the publichouse business. After careful consideration he had come to the conclusion that the fair amount to be allowed for goodwill in this case was £150. As against that he found that the premises were in a serious state of dilapidation at the end of the tenancy, and for that he allowed a set-off of £30. The net amount of the decree was therefore £120.
The applicant was the tenant from the respondents of two plots of ground situate respectively on the north side and on the south side of Lower Glanmire Road, Tivoli, in the City of Cork. Prior to the granting of a lease dated the 1st August, 1964, under which the premises were held, the applicant had been in possession of the premises as a licensee of the respondents since the month of February, 1961, and during this period he carried on in the premises the business of a garage and petrol station. The lease was for a term of two years from the 1st August, 1964, at the monthly rent of £12. 10. 0d. payable in advance, and the lessee was also liable to pay the rates.
The lease contained a number of covenants by the lessee, who was liable to keep the premises and the buildings thereon and the fixtures and fittings and drainage in good and substantial repair, order, and condition; and he was also liable to keep the equipment
(which formed part of the letting and which consisted of underground petrol tanks, petrol pumps and two air compressors) in good repair, working order and condition. He was also bound to keep the buildings insured for the full value thereof. He covenanted to carry on upon the premises the business of a garage and filling station and to use them for no other purpose. He also covenanted to purchase his total requirements of motor fuel, other light products, lubricating oil, lubricating greases and anti-freeze mixture from the respondents at their standard wholesale price; and he covenanted not to sell or advertise at the premises, or any adjoining premises owned or occupied by him, any of these products that were supplied by any company or person other than the respondents. The lease also contained a restriction on assigning, underletting or parting with or sharing possession of the premises, or any part thereof, without the consent in writing of the respondents and the superior lessors; and the lease provided that such consent was not to be unreasonably withheld in the case of an assignment, underletting, parting with or sharing of possession, to or with a respectable and responsible person. The lease provided that if the tenancy was extended, with the consent of the respondents, beyond what was described as “the initial period of two years” it should be deemed to be a tenancy from year to year which might be determined by either party giving to the other party three months written notice which was to terminate on the first day of any month.
When the term of two years created by this lease expired on the 1st August, 1966, the applicant remained on as a yearly tenant until this tenancy was determined on the 1st June, 1967, by a notice to quit dated the 1st March, 1967. Since the 1st June, 1967, the applicant has been permitted to remain in the premises until the 1st January, 1971, paying mesne rates equivalent to the rent reserved by the lease.
On the 30th March, 1967, the applicant served a notice of his intention to claim relief under the Landlord and Tenant Act, 1931, and in this notice he claimed a new tenancy in the premises and, alternatively, he claimed £6,000 as compensation for disturbance. On the 16th October, 1968, he served an application to the Circuit Court claiming the relief sought in the notice of intention. On the 17th July, 1969, an answer was delivered by the respondents disputing the applicant’s claim to the relief sought. Pursuant to a notice for particulars dated the 31st October, 1969, which sought particulars of the £6,000 claimed as compensation for disturbance, the applicant gave details of his claim as follows:(1) two years loss of petrol sales£1,850; (2) one-third of profit on the total sales of tyres for the 12 months ending the 30th August, 1969£2,000; (3) loss of value of tenancy and disturbance£2,500; (4) costs of removal and of endeavouring to obtain alternative suitable premises£600.
A further notice for particulars in regard to these figures, and of the applicant’s expenses in running the garage, was served by the respondents and in the applicant’s reply one half of the profit on the total sale of tyres was claimed and a claim was made, for the first time, for the sum of £2,347 in respect of the sale of used cars. Finally, over three years after the service of the notice of intention to claim relief, the application came before the Circuit Court judge on the 15th May, 1970, when the application for a new tenancy was refused under s. 22, sub-s. 1, of the Act of 1931 and the figure of £12,000 was assessed as compensation for disturbance. This appeal is taken by the respondents against that assessment.
It appears that in 1964 the applicant became a monthly tenant from the respondents of other premises known as Firgrove on the other side of Cork, in which he also carried on the business of garage and filling station. That tenancy was determined and the applicant quitted those premises on the 1st January, 1970, since which time he has carried on business only at the premises which are the subject matter of this application.
At one time he carried on an ordinary garage business in the Tivoli premises but this ceased in 1964, since which time he claims that his business there consisted of the sale of petrol, tyres and used cars. The figures given in regard to the sale of petrol are clear enough but the applicant has made little or no attempt to segregate, between Tivoli and Firgrove, the profit made on the sale of tyres and used cars. I have adverted to the facts that in his reply to the first notice for particulars the applicant claimed that one-third of his total sale of tyres took place in Tivoli whereas in reply to the second notice he altered this to one-half of such sales, and the fact that his first claim on the sale of used cars was made in reply to the second notice.
Furthermore, in a statement produced on the hearing of this appeal the applicant’s claim is increased from the original figure of £6,000 to over £17,000. However, it is only right to say that this increase can be explained to a large extent by the inclusion of the sale of used cars and by the fact that the applicant’s sales of petrol increased considerably in the year 1969 and have shown a spectacular rise in the first six months of this year.
The first question of law which arises is as to the basis upon which compensation for disturbance should be assessed. Section 23 of the Act of 1931 states that “the measure of such compensation shall be the pecuniary loss, damage, or expense which such tenant sustains or incurs or will sustain or incur by reason of his quitting the tenement in respect of which such compensation is awarded and which is the direct consequence of his quitting such tenement.”Obviously the compensation to which the tenant is entitled under this section is much greater than that to which a tenant was entitled under s. 5 of the Town Tenants (Ireland) Act, 1906, which was limited to compensation for “loss of goodwill and the expense which, by reason of his quitting the holding, the tenant sustains or incurs upon or in connection with the removal of his goods, implements, produce or stock.” On the other hand, the compensation to which a tenant is entitled is still limited to the direct pecuniary loss, damage or expense which he sustains or incurs or will sustain or incur by reason of his quitting the tenement.
As Mr. McKenna has pointed out, the Act of 1931 does not say that the tenant is entitled to compensation for being refused a new tenancy under the Act. The onus is on the tenant to prove that he has sustained, or will sustain, pecuniary loss due directly to his quitting the premises. In the present case the applicant has not yet quitted the premises and will not have to do so until the 1st January, 1971, and therefore he has to establish the direct pecuniary loss that he will sustain in consequence of his quitting the premises on that date. Therefore, a large element of speculation is inevitably involved in assessing compensation in this case, for not only has the applicant not quitted the premises but, by the consent of the respondents, he will not be required to do so for some seven months after the hearing in the Circuit Court and for some three months after the hearing of this appeal.
Up to the date of the hearing of the appeal, the applicant had not acquired any alternative premises and, in my opinion, he had made very little effort to obtain such premises. He said in his evidence:”The first effort I made was after the last Court. I have not seriously been looking for premises, but I have looked.”Mr. Hennessey, the applicant’s former solicitor, and Mr. Deller who is a chartered surveyor gave evidence of having inspected some premises which were available but which were unsuitable for the applicant’s business. Mr. Deller said that, in his opinion, it would be impossible to find a petrol station in Cork but that the applicant should be able to find suitable premises in which to carry on the business of selling tyres and used cars, which would take time and that, in his opinion, it could take two years before the applicant was back to his former position. As the applicant did not know until the 15th May last that he was not going to obtain the new tenancy which he was seeking, it was reasonable that, up to that date, he should not have done more than take note of any premises on the market which might be suitable to his requirements; but after that date he should have been more active in taking all reasonable steps to minimize his loss. This neglect on his part makes the assessment of his probable loss more difficult and, in my opinion, it must militate against him to some extent.
A further question of law has been argued in this case and that is whether, in assessing compensation, the applicant is entitled to rely on the considerable increase in petrol sales which has taken place since his tenancy was determined: the same question arises in regard to the sale of tyres and used cars since he quitted the Firgrove premises in January, 1970. Under s. 22, sub-s. 3, of the Act of 1931 it is provided that, in the circumstances there stated,”such tenant shall, in lieu of a new tenancy . . . be entitled,on quitting such tenement on the expiration of such tenancy, to be paid by the landlord of such tenement compensation (in this Act referred to as compensation for disturbance) in accordance with this Act.” Under s. 23 of the Act of 1931 the compensation is to be the loss that the tenant will sustain by reason of his quitting the premises. Similar words (“by reason of quitting his holding” and”by reason of his quitting the holding”) were used in s. 3 of the Landlord and Tenant (Ireland) Act, 1870, and in s. 5 of the Town Tenants (Ireland) Act, 1906. Lord Justice Fitzgibbon said in O’Donovan v. Kenmare 1:”It is of course obvious, as pointed out by Mr. Butt, that ‘disturbance’ cannot be limited to disturbance of any legal right, but must mean disturbance of possession in fact.” In Clery and Kennedy’s book on the Town Tenants Act the question is discussed as to whether the premises had to be shown to be of the nature required to come within the section at the time of the determination of the tenancy or at the time when the tenant actually quitted the premises; the authors concluded at pp. 49 and 76 that the material date must be the actual date of the tenant quitting the premises and, although I cannot find that this question was ever decided in any reported case, I think the authors’ reasons for coming to this conclusion are convincing and that, for similar reasons, the applicant is entitled to the benefit of his profits up to the date of quitting the premises. Similarly, if his business had fallen off between the termination of his tenancy and the date of his leaving the premises, the landlords would have been entitled to have this taken into account in reduction of his claim.
The applicant claims compensation under three heads. First, he claims general expenses for moving, for advertising and for legal fees etc. Under this head he claims the sum of £250 which is a reasonable sum.
Secondly, he claims the sum of £2,500 by reason of the increased rent that he will have to pay. This is based on Mr. Deller’s evidence that the rent which could be obtained for the premises on the open market would be £1,000 p.a., whereas the rent which the applicant would have had to pay if he had obtained a new tenancy under the Act of 1931 would have been £750 p.a. for a term of 21 years, and the loss alleged to have been sustained by the applicant is claimed to be ten years purchase of the sum of £250. As the Act of 1931 does not say that the tenant is entitled to compensation for not obtaining a new tenancy, I think the basis upon which this claim is made is wrong. On the other hand, the figures (which have not been disputed) are sufficient evidence that, if the applicant were to obtain a letting of similar premises on the open market in Cork, the rent which he would have to pay would be in the neighbourhood of £1,000 p.a. On this basis the estimate of £2,500 as the loss which the applicant will sustain through having to obtain suitable premises is reasonable in my opinion. However, the premises are in a very bad state of repair at present and I must deduct from the £2,500 a sum for the amount which I am satisfied the Court would have required the applicant to expend on the repair of the premises as a condition of obtaining a new tenancy: see s. 29 (h) of the Act of 1931. I fix this deduction at £500, which leaves £2,000 as the sum to be allowed under this head.
Thirdly, the applicant claims loss of profits under three categories. He claims £10,410 being three years purchase of his annual average profit from the sale of petrol; he claims £8,942 being two years purchase of his average annual profit from the sale of cars; and he claims £2,132 being two years purchase of his average annual profit from the sale of tyres. This makes a total of £21,484 which is claimed as loss of profits.
From the figure of £24,234 (£250, £2,500 and £21,484) there is a deduction of £7,110 being 21/2 times the applicant’s average annual outgoings, and this leaves £17,124 as the final amount claimed as compensation.
In my opinion it is quite clear that the applicant is entitled to recover compensation for any loss of profits which he will directly sustain by reason of his quitting the tenement. In Ryan v. Bradley 2Mr. Justice Murnaghan allowed the applicant a sum for loss of profits from her business for the period between quitting the premises and obtaining alternative premises in which to carry on her business, but the period was only 28 weeks in that case so that it does not assist me greatly in arriving at a figure in this case. Here the applicant has not yet acquired alternative premises and the period necessary for him to do so is a matter of pure speculation. Under these circumstances, I think I must allow him a reasonable period from the date of the Circuit Court proceedings on the 15th May last in which to obtain suitable accommodation. I am prepared to accept Mr. Deller’s estimate of two years as being a reasonable period, so that the applicant should be back in business by the 15th May, 1972, but this should mean a loss of profit for approximately one year and a half as he will not have to quit the present premises until the 1st January, 1971. However, I appreciate that the applicant may take longer to acquire premises for the sale of petrol and so I will allow him two years loss of profits under this heading.
Finally, I come to deal with the assessment of this loss of profits. In regard to petrol sales, the average sales for the years 1967, 1968, and 1969 up to August, 1970 (and allowing sales at the same rate for the remainder of this year) when applied to the figures for profit margin on each grade of fuel (after turnover tax and Green Shield stamps are taken into account) yield a gross profit in round figures as follows:
Grade Average sales p.a. Profit per gallon Profit p.a.
Premium 56,500 gallons 4d. £950
Special 29,000 ,, 31/3d. 400
Regular 14,000 ,, 21/2d. 150
Diesel 5,000 ,, 43/4d. 100
—–
Total gross profits p.a. £1,600
Two years gross profits £3,200
In regard to car sales, I have already pointed out that the applicant originally made no claim under this heading and that the evidence which he has produced in support of his claim is far from satisfactory. He now claims the sum of £4,471 on the basis of the average profit on sales for the years 1969 and 1970, but I am satisfied that in 1969 some part of the sales of used cars took place in Firgrove and, in addition, I am not satisfied that all losses on sales have been taken into account. I think a fair figure for gross annual profit under this heading would be the sum of £3,000, giving a figure of £4,500 for one and a half years.
In regard to sales of tyres, I accept the applicant’s figure of the present profit for sales at Tivoli as being slightly over £1,000 p.a. Therefore, for one and a half years the gross loss would be the sum of £1,500.
The gross loss of profits therefore comes to £9,200 and from this figure there must be deducted outgoings (including such items as income tax) which I estimate to be £3,700 p.a. or £5,550 for one and a half years, which leaves a figure of £3,650 for loss of nett profits. An addition of the sum of £2,000 for having to pay an increased rent brings the figure to £5,650, from which I deduct £300 for present payment for future loss and to which I add £250 for general expenses. This makes a final total of £5,600, which is the figure which I fix as the compensation for disturbance to which the applicant will be entitled on quitting the premises. The order of the Circuit Court judge will be varied accordingly. The respondents are entitled to the costs of the appeal.
Patrick J. Aherne v Southern Metropole Hotel Co. Ltd
1987 No. 290
Supreme Court
14 June 1989
[1989] I.L.R.M. 693
(Finlay CJ, Walsh and Hederman JJ)
FINLAY CJ
(Walsh and Hederman JJ concurring) delivered his judgment on 14 June 1989 saying: This is a case stated by Keane J to the Supreme Court pursuant to s. 38(3) of the Courts of Justice Act 1936 on the application of Southern Metropole Hotel Co. Ltd who were the appellants on the hearing by the learned judge of an appeal from an order of the Cork Circuit Court.
The order against which the appeal was taken was an order assessing compensation for disturbance pursuant to s. 22 of the Landlord and Tenant Act 1931 in the sum of £19,755.52 in favour of the applicant Patrick J. Aherne who had applied for a new tenancy pursuant to the Act of 1931 in certain premises of which the appellant was the landlord and in which Dr Aherne carried on a dental practice.
As appears from the case stated, the tenancy in the premises had expired by efflux of time on 1 July 1979 and the tenant having duly served a notice of intention to claim relief applied to the Circuit Court by notice dated 27 February 1980 claiming a new tenancy. The landlord in answer to that application contended that the creation of a new tenancy in the said tenement would not be consistent with good estate management.
By order of 4 March 1981 the learned Circuit Court judge of Cork, having heard evidence, refused the application for a new tenancy on the grounds that it would not be consistent with good estate management, and adjourned the issue of compensation. Against that order no appeal was brought. The issue of compensation came before the court and on 16 July 1982 was fixed in the sum mentioned.
Upon the hearing of the appeal before Keane J the respondent stated that it was willing to grant the applicant a new 21 year lease pursuant to the Act of 1931 on such terms as may be fixed by the court in accordance with the original application of the applicant. It stated its willingness to furnish any necessary undertakings to secure the applicant’s entitlement in that behalf.
The learned trial judge determined that:
(a) In the event of his being obliged to bear in mind the respondent’s offer of a *695 21 year lease to the applicant pursuant to the Landlord and Tenant Act 1931 as a relevant factor in fixing the compensation for disturbance, the proper compensation for disturbance would be £7,500.
(b) If the offer of a new 21 year lease is irrelevant to the fixing of compensation he would not disturb the sum of £19,755.52 fixed by the learned Circuit Court judge as compensation.
The question of law which was referred to this Court was as follows:
Whether in fixing compensation pursuant to s. 23 of the Act I am entitled to bear in mind and treat as a relevant consideration the fact that the respondent is now prepared to grant the applicant a new 21 year lease in the premises, the subject matter of these proceedings, as if the applicant had originally been found entitled to the said lease pursuant to the provisions of the Landlord and Tenant Act 1931.
It was proved at the hearing that the applicant was continuing to practise as a dentist in the premises, and counsel informed the court on the hearing of the case stated that that was still the position.
The respondent established to the satisfaction of the learned trial judge that a reduction in the volume of its business had involved a significant reduction in staff which eliminated the requirement to use these premises for the purpose of staff accommodation which had been the reason why the granting of a new tenancy was not consistent with good estate management. A further relevant fact found by the learned trial judge was that the applicant’s practice was adversely affected by the publicity attaching to the refusal of his application for a new tenancy by order of 4 March 1981.
Counsel for the applicant stated that his client did not now wish to avail of a new tenancy in these premises but would prefer to be paid compensation at the full rate which had been ascertained. It is contended on behalf of the respondent that having regard to the provisions of the Act of 1931 that a tenant’s right to compensation for disturbance was confined to a situation in which he was forced to quit the premises and arose only on the happening of his involuntarily doing so. Where, therefore, an offer, it was argued, has been made by the landlord to grant a new tenancy in accordance with terms to be fixed by the court at any stage of the compensation proceedings prior to the actual quitting by the tenant of his occupation of the premises, that offer would extinguish the applicant’s right to compensation. It was further submitted that counsel acting on behalf of the respondent in the hearing of the appeal had conceded the right of the applicant to compensation in the sum of £7,500, even though it was not anticipated that he would quit the premises, but that, strictly speaking, at law he was not entitled to any compensation once the respondent was willing to grant him a new tenancy on terms to be fixed by the court.
On behalf of the applicant it was urged that his application for a new tenancy, in these premises was refused by the order of the Circuit Court made on 4 March of 1981 and that that order was not the subject matter of any appeal and could not now be set aside or varied and that accordingly there was no machinery whereby the court could now, in the absence of agreement between the parties, at least, and possibly, even if such agreement were forthcoming, fix the terms of a new tenancy *696 as the offer of the respondent would involve. Counsel for the applicant agreed that had the respondent made an offer on the hearing of the appeal against the amount of compensation to grant a tenancy in these premises to the applicant on certain named terms as to rent and other conditions, that would have been a material factor to be considered by the judge hearing the appeal as it would have affected the loss which the applicant would suffer. It was contended, however, on behalf of the applicant that the precise offer recited in the case stated was not capable of being properly considered as a factor and that he was entitled to the assessment by the judge of the figure fixed for compensation by the Circuit Court.
I have come to the conclusion that the submission made on behalf of the applicant in this case is correct.
The procedure whereby the Circuit Court fixes the terms of a new tenancy and grants a new tenancy to a tenant is entirely the creature of statute and is provided for in the Landlord and Tenant Acts 1931 and 1943 which are the statutes applicable to this particular case.
There is no provision in those statutes which expressly enables a landlord who has successfully resisted a claim for a new tenancy on the basis of the inconsistency of that with good estate management at a later time to change his mind and to initiate, without the agreement of the tenant, proceedings whereby the court would fix the terms of a new tenancy instead of awarding compensation. S. 22(4) of the Act of 1931 provides that where compensation for disturbance is awarded under that section and such compensation is not paid within the time limited in that behalf by the Act the tenant should be entitled after the expiration of the time and before the payment of compensation to renew his application for a new tenancy under the Act and the defence of good estate management will no longer apply to such application. It is quite clear, in my view, that a tenant cannot be forced to operate that section, nor can it be operable unless and until the event has occurred which consists of the non-payment of compensation within the time limited. The time limited by the Act for the payment of compensation is whichever of these two times is the later, that is to say, one month from the date of the fixing by the court of the amount of the compensation or the delivery to the landlord by the tenant of clear possession of the tenement. The right to payment of compensation is by virtue of s. 22(3) a right stated to be ‘on quitting such tenement on the expiration of such tenancy’. It is clear from these provisions and from the absence of any other express provision that the Circuit Court cannot now, pursuant to the Act of 1931, fix the terms of a new tenancy. An offer by the respondent for that to be done cannot, therefore, be a relevant factor in assessing the amount of compensation to which the applicant has already been declared entitled.
The measure of compensation for disturbance provided by the Act of 1931 is stated in s. 23 of that Act to be the pecuniary loss, damage or expense which such tenant sustains and incurs, or will sustain or incur by reason of his quitting the tenement in respect of which such compensation is awarded and which is the direct consequence of his quitting such tenement. I am satisfied that a factor which must be relevant in assessing compensation so defined would be the availability to the *697 tenant of accommodation in other premises which are available for letting. I cannot see why there could be any objection to a landlord seeking to reduce the amount of compensation which would be awarded to a tenant for disturbance offering accommodation in some other premises to the tenant at a rent which was comparable to what might have been expected upon the granting of a new tenancy in the premises formerly occupied by him. Such an offer would, of course, be clearly a factor in the assessment of compensation. It must follow, as a matter of logic, it would appear to me, that an offer to grant a new tenancy by agreement in the premises formerly occupied or as it happens in this case at present) still occupied by the tenant, would be a factor, provided that the court was made aware of the precise terms on which that offer was made and was in a position to assess whether such terms were as favourable from the tenant’s point of view, as might be the terms to be fixed by a court had a new tenancy been granted.
Having regard, however, to the form of the undertaking apparently given during the course of the hearing of the appeal by the respondent as it is recited in the case stated before this Court, I would answer the question raised in the case stated in the negative, that is to say, stating that in fixing the compensation pursuant to s. 23 of the Act the learned High Court judge is not entitled to bear in mind and treat as a relevant consideration the fact that the respondent is now prepared to grant the applicant a new 21 year lease in the premises, subject to the terms to be fixed by the court.
A question arose during the argument before this Court as to whether this Court should give some indication to the learned High Court judge in answering the case stated that he should now permit the respondent if it wished to do so, to adduce evidence of the terms upon which it would be willing to grant a new lease to the applicant. I take the view that the function of this Court under the section in answering the case stated is to answer the legal question raised by it and that all other matters concerning the appeal being heard by the learned High Court judge are peculiarly within his discretion.