688

Lloyd L.J. Bonalumi v. Home Secretary (C.A.) [1985]

The cause or matter in question was the application to the court to A
exercise its powers under the Allied Forces Act and the order, and
to deliver the appellant to the Dutch military authorities."
Here, by parity of reasoning, the cause or matter is the proceeding
under section 5 of the Extradition Act 1873.
I have nothing to add to what Stephenson L.J. has said on the recent
cases, including Reg. v. Grossman, 73 Cr.App.R. 302, in which the B
present point was not taken.
I too would decline jurisdiction.

SIR DAVID CAIRNS. I agree that this court must decline jurisdiction
to hear this appeal for the reasons which have been given in the two
judgments already delivered, to which I have nothing of my own to add.

Appeal dismissed, the Court of Appeal

having no jurisdiction to entertain
it.
No order as to costs.
Leave to appeal refused.
D
Solicitors: Pothecary & Barratt for Hawkins & Co., Hitchin; Treasury
Solicitor.
A. R.

[COURT OF APPEAL]

DUKE OF WESTMINSTER AND OTHERS V. GUILD

F
[1979 G. No. 304]
1983 March 17, 21; 30 Stephenson, Kerr and Slade L.JJ.

Landlord and TenantRepairsCovenant, impliedDrains from

demised premises running under lessors' landImplied grant of
right of drainageNo express covenant in lease requiring lessors Q
to keep drains in repairWhether covenant to be implied
Whether lessors owing duty of care to keep drains in repair
By a lease dated 11 August 1976 the plaintiffs demised
premises to the defendant to be used for business purposes and
granted a right of way to the premises over a private road (a
mews) in the ownership of the plaintiffs. By clause 2 of the
lease the defendant covenanted to keep the demised property in JJ
good repair and pay a fair proportion of the expenses of, inter
alia, repairing the private road and repairing and scouring drains
belonging to the premises or used jointly with occupiers of
neighbouring hereditaments. The clause also gave the plaintiffs
 689
1 Q.B. Duke of Westminster v. Guild (C.A.)
^ liberty to enter the demised premises to execute necessary
repairs and recover the cost. A drain that served only the
demised premises was discovered to be defective. In attempts to
unblock the drain, it was discovered that it went under the
mews and that that part of the drain was full of earth and
appeared not to have been maintained or cleared for many
years. The plaintiffs, accepting that there was an implied right
of drainage over their land, agreed that the defendant should be
B at liberty to construct a new drain from the demised premises to
the plaintiffs' private sewer. The defendant claimed to be
entitled to set off the expense of constructing the new drain
against the rent. The plaintiffs issued a writ for recovering
arrears of rent and, on the trial of the preliminary issue whether
the plaintiffs were liable to repair and maintain the drain, the
judge held that the plaintiffs had an obligation under the lease
Q to keep the drain in good repair and a duty to take reasonable
care to keep the drain where it was not subadjacent to the
demised property in repair and unobstructed.
On appeal by the plaintiffs:
Held, allowing the appeal, (1) that clause 2 of the lease
provided a scheme whereby the defendant was liable for all
repairs to the demised premises and, by virtue of the easement
p. of drainage, he had a right to carry out necessary works of
repair to the drain under the plaintiffs' land and the plaintiffs
had the right, if they chose to exercise it, to carry out works of
repair and recover the costs; that, accordingly, there were no
special factors requiring the lease to be construed to give it
business efficacy by imposing on the lessors the onerous
obligation to carry out works of repair and, therefore, the
general rule that there was no implied covenant that a lessor
E was under an obligation to carry out works of repair applied
(post, pp. 6 9 9 C - H , 700G701c).
Liverpool City Council v. Irwin [1977] A.C. 239, H.L.(E.)
distinguished.
(2) That, notwithstanding the plaintiffs had granted the
defendant a lease of the demised premises and had retained the
adjoining land, the defendant's right of drainage was an
p easement that could not impose a duty on the plaintiffs, as
servient owners, to repair the drain; that, in the absence of an
express covenant in the lease, the plaintiffs, whether as landlords
or landowners, had no duty of care that could impose on them
an obligation for repairing the drains; and that, further, neither
the expressed covenant for quiet enjoyment nor the implied
covenant against derogation of grant in the lease could be
invoked so as to impose on them a positive obligation which
G they would not otherwise be obliged to perform (post, pp. 7 0 2 F
703A, F-G, 704A-B).
Hargroves, Aronson & Co. v. Hartopp [1905] 1 K.B. 472,
D.C.; Cockburn v. Smith [1924] 2 K.B. 119, C.A. and Booth v.
Thomas [1926] Ch. 397, C.A. distinguished.
Per curiam. A tenant who contemplates that his landlord
shall carry out repairs to the property retained by the landlord
j^ over which the tenant is granted easements will ordinarily be
well advised to demand an express covenant to that effect (post,
p. 7 0 3 H ) .
Decision of Judge Lipfriend sitting as a judge of the Queen's
Bench Division reversed.
690
Duke of Westminster v. Guild (C.A.) [1985]
The following cases are referred to in the judgment: A
Barnes v. City of London Real Property Co. [1918] 2 Ch. 18
Booth v. Thomas [1926] Ch. 397, C.A.
Cockburn v. Smith [1924] 2 K.B. 119, C.A.
Edmonton Corporation v. W. M. Knowles & Son Ltd. (1961) 60 L.G.R. 124
Hargroves, Aronson & Co. v. Hartopp [1905] 1 K.B. 472, D.C.
Hilton v. James Smith & Sons (Norwood) Ltd. (1979) 251 E.G. 1063, C.A.
Holden v. White [1982] Q.B. 679; [1982] 2 W.L.R. 1030; [1982] 2 All E.R. B
328, C.A.
Jones v. Pritchard [1908] 1 Ch. 630
Lister v. Romford Ice and Cold Storage Co. Ltd. [1957] A.C. 555; [1957] 2
W.L.R. 158; [1957] 1 All E.R. 125, H.L.(E.)
Liverpool City Council v. Irwin [1976] Q.B. 319; [1975] 3 W.L.R. 663;
[1975] 3 All E.R. 658; [1977] A.C. 239; [1976] 2 W.L.R. 562; [1976] 2
All E.R. 39, H.L.(E.) c
Sleafer v. Lambeth Borough Council [1960] 1 Q.B. 43; [1959] 3 W.L.R.
485; [1959] 3 All E.R. 378, C.A.
No additional cases were cited in argument.

APPEAL from Judge Lipfriend sitting as a judge of the Queen's Bench D

Division.
The plaintiffs, Gerald Cavendish, the sixth Duke of Westminster,
John Nigel Courtenay James and Patrick Geoffrey Corbett (the trustees
of the will of the second Duke of Westminster), appealed against an
order dated 14 May 1982 of Judge Lipfriend whereby it was declared (a)
that on the true construction of the lease dated 11 August 1976 and g
made between the plaintiffs and the defendant, Ivan Robin Guild, of
premises known as 107a, Pimlico Road, City of Westminster, the
plaintiffs had an obligation to the defendant to make, repair and secure
all party and other walls, gutters and sewers and drains belonging, or
which should in future belong, to the demised premises or be used
jointly with the occupiers of any adjoining or neighbouring hereditaments;
(b) that the plaintiffs owed to the defendant a duty to take reasonable F
care to keep in repair and unobstructed the drain ("the green drain")
where it was not subjacent to the demised premises and (c) that the
plaintiffs were in breach of the obligation and duty and clause 5 of the
lease; and whereby it was ordered that damages be assessed by an
official referee.
The grounds of appeal were, inter alia, (1) that the judge erred in Q
law in holding that on the true construction of the lease the plaintiffs
were under an obligation to repair; (2) that if the plaintiffs were under
any such obligation, it was only an obligation on receiving notice and
when having actual knowledge of the want of repair, and neither such
notice nor such knowledge was established earlier than the date when
the defendant constructed the new drain; (3) that the judge erred in law
in holding that the plaintiffs were under a duty to take care to keep any H
part of the green drain in repair or unobstructed; (4) that the full cost of
the repair (so far as it was an obligation or duty of the plaintiffs to carry
out the same) ought to be borne by the defendant by reason of clause
 691
1 Q.B. Duke of Westminster v. Guild (C.A.)
A 2(iv) of the lease and that there were no other recoverable damages;
and (5) that the judge ought to have declared that the plaintiffs were
under no obligation or duty in respect of the repair of the green drain.
The facts are stated in the judgment of the court.
Gavin Lightman Q.C. and A. M. Ginsberg (who did not appear
below) for the plaintiffs. On the true construction of the lease, the
plaintiffs were not under any obligation to keep the drain in repair or
unobstructed. No such obligation can be implied in the lease and no
such obligation can subsist independent of contract: Sleafer v. Lambeth
Borough Council [1960] 1 Q.B. 43. The case of Barnes v. City of
London Real Property Co. [1918] 2 Ch. 18 is a case turning on the fact
that the lease imposed an unconditional obligation on the tenant of
Q property for the services in question: the existence of this obligation
impelled the implication of a matching obligation on the part of the
landlord to provide the service. Liverpool City Council v. Irwin [1977]
A.C. 239 is to be distinguished: the present case is an ordinary
commercial lease of unfurnished premises, not a short form document
relating to a building in multiple occupation where the parties must be
presumed to have left it to the court to fill in the lacunae. Further,
D applying the test of Lord Cross of Chelsea in that case at [1977] A.C.
239, 258 as to the presumed intention of both parties, it is clear that no
intention can be presumed that would place the plaintiffs under a duty
to repair. The fact that the lease defines the tenant's obligations to
repair and does not define any obligation on the part of the landlord is
an indication that no such obligations were intended, and this indication
g is impelling because the obligations sought to be implied would extend
to all the items mentioned in clause 2(iv) of the lease, including, inter
alia, the walls and gutters, which under clause 2(iii) the tenant is obliged
to repair, and accordingly would be inconsistent with the express terms
of the lease. This conclusion is consistent with the principles underlying
the law of easements, namely that the plaintiffs, as owners of the
servient tenement, are under no duty to execute repairs necessary to
F ensure the enjoyment of the easement, but the defendants have the right
to repair: Holden v. White [1982] Q.B. 679, 683-684. Dealing with the
judge's finding that the plaintiffs were under a duty to take care to keep
the drain in repair and unobstructed, the present case is to be
distinguished from those cases where some dangerous substance has
escaped from the landlord's premises to the demised premises: Hargroves,
G Aronson & Co. v. Hartopp [1905] 1 K.B. 472; Cockburn v. Smith [1924]
2 K.B. 119 and Booth v. Thomas [1926] Ch. 397. Here, the "dangerous
substance" emanated from the tenant's own premises.
K. M. J. Lewison for the defendant. On its true construction the
lease placed on the plaintiffs an implied contractual obligation to keep
the drain in repair and unobstructed: Barnes v. City of London Real
Property Co. [1918] 2 Ch. 18 and Edmonton Corporation v. W. M.
H
Knowles & Son Ltd. (1961) 60 L.G.R. 124. In Liverpool City Council v.
Irwin [1977] A.C. 239, 253, Lord Wilberforce said that the courts would
be "willing to add a term on the ground that without it the contract will
not workthis is the case, if not of The Moorcock (1889) 14 P.D. 64
692
Duke of Westminster v. Guild (C.A.) [1985]
itself on its facts, at least of The Moorcock as usually applied." Further A
and alternatively, if the lease does not impose a contractual obligation to
repair on the landlords, they are nevertheless under a duty of care to
the tenant to repair. Where a lessor retains in his possession and control
something ancillary to the demised premises, the maintenance of which
is necessary for the protection or safe enjoyment of the premises, the
lessor is under a duty to take reasonable care in respect of the premises
retained: Hargroves, Aronson & Co. v. Hartopp [1905] 1 K.B. 472 and
Cockburn v. Smith [1924] 2 K.B. 119. In the present case, the plaintiffs
have retained something ancillary to the premisesthe drainand they
are accordingly under a duty to take reasonable care that it is not in
such a condition as to cause damage to those premises. That duty,
whether at common law or under the law of tort or contract, exists,
irrespective of clause 2(iv) of the lease, as a legal consequence of the Q
relationship between the plaintiffs and defendant. Notwithstanding
the law of easements, that landlord and tenant relationship places the
landlord under a positive duty to the tenant to prevent obstruction of a
right of way: Hilton v. James Smith & Sons (Norwood) Ltd. (1979) 251
E.G. 1063.
Lightman Q.C. in reply referred to Jones v. Pritchard [1908] 1 Ch.
630, and distinguished Edmonton Corporation v. W. M. Knowles & Son D
Ltd., 60 L.G.R. 124 as a case where the obligation implied on the part
of the landlord to repair matched the unconditional obligation of the
tenant to pay for such repairs.

Cur. adv. vult.

E
30 March. The following judgment of the court was handed down.

SLADE L.J. This is the judgment of the court on an appeal from a

judgment of Judge Lipfriend, sitting as a judge of the Queen's Bench
Division, given on 14 May 1982 at the trial of a preliminary issue in an
action. The plaintiffs in the action are the trustees of the will of the p
second Duke of Westminster. The defendant is Mr. Ivan Robin Guild.
The action was begun by a writ issued on 7 February 1979, by which the
plaintiffs as landlords claimed against the defendant as tenant payment
of alleged arrears of rent and certain other relief. The plaintiffs
subsequently issued a summons for summary judgment. The defendant
raised by way of defence and set-off against the rent a claim for
damages in respect of loss suffered by him through the failure to repair G
a drain which, he said, the plaintiffs were bound to repair. On 15
December 1980 Master Elton gave the defendant liberty to defend the
action and gave certain directions which were intended to enable the
question of the liability for the repair of the drain to be determined as a
preliminary issue. Following his directions, a statement of facts was
agreed between the parties on 25 January 1982. The preliminary issue
was then tried before Judge Lipfriend on 2 July 1982. He decided it in "
favour of the defendant. He decided that the liability for the repair of
the drain fell upon the plaintiffs and awarded the defendant the costs of
the preliminary issue. The plaintiffs now appeal from his order.
 693
1 Q.B. Duke of Westminster v. Guild (C.A.)
A The relevant facts all appear from the agreed statement of facts and
from the lease itself. We will extract those of them which seem to us
most material for the purposes of this judgment.
By a lease dated 11 August 1976 the plaintiffs granted to the
defendant a lease of certain premises now known as 107a, Pimlico Road,
S.W.I in the City of Westminster for a term beginning on 11 August
1976 and ending on 25 March 1997. The demise included the express
B grant of a right of way over a private roadway or mews leading from the
demised premises to Pimlico Road, the right being expressed to endure
"so long as the lessee and his successors in title and assigns shall
pay a proportion of the expenses hereinafter referred to in clause
2(iv) hereof."
Q By clause 2(i) the defendant covenanted to pay the rent thereinbefore
reserved and "such proportionate part thereof as aforesaid." Clause
2(iii) began with the following words:
"The lessee will at all times during the said term well and sufficiently
repair paint paper and cleanse the whole of the demised premises

D There followed in clause 2(iii) a long list of particular obligations of

the defendant as regards the exterior of the demised premises, relating
to such matters as paint and stonework, which were expressed to
operate without prejudice to the generality of the opening provisions.
Clause 2(iv) read:
"The lessee will on receipt of the landlords' written demand
E forthwith pay and contribute to the landlords a fair proportion with
other lessees interested therein of the expenses of making repairing
and scouring all party and other walls gutters sewers and drains
belonging or which shall belong to the demised premises or be used
jointly with the occupiers of any adjoining or neighbouring
hereditaments and also a fair proportion of the expenses of
F maintaining repairing cleansing and keeping in good order and
condition the paving of surface of the roadway of the passageway
and private roadway shown coloured brown and also of the lighting
of the said passageway and private roadway and further a fair
proportion of the expenses of preserving the amenities of the
demised premises and adjacent or neighbouring premises such
proportion (if in dispute) to be determined by the estate surveyor of
G the landlords whose determination shall be final and binding on the
lessee."
Clause 2(vi) gave the plaintiffs liberty at any time during the term to
enter the demised premises for any lawful purpose including (inter alia)
viewing its condition. It further provided that, upon any such entry, they
might
"bring any requisite appliances and execute as well repairs on
adjoining premises belonging to the landlords as repairs which
ought to be done on or to the demised premises the lessee paying
the cost of any such repairs to the demised premises and the
694
Duke of Westminster v. Guild (C.A.) [1985]
landlords making good all damage occasioned to the demised A
premises by any such entry to repair adjacent premises."
Clause 5, so far as material, provided:
"The landlords covenant with the lessee that the lessee duly paying
the said rent and performing and observing all and every the
covenants clauses and agreements hereinbefore respectively reserved
and contained shall and may (subject nevertheless as aforesaid) B
peaceably enjoy the demised premises for the term hereby granted
without any interruption by the landlords or any person lawfully
claiming through or under them."
The lease did not expressly impose any obligations whatsoever on the
plaintiffs in regard to repair or maintenance. The issue of law raised on
this appeal substantially concerns the extent of their liability (if any) to C
repair and keep in repair a drain which is situated partly under the
demised premises and partly under the mews. The position of this
underground drain ("the green drain"), which serves only the demised
premises, is shown on a plan in our bundle of documents. The demised
premises are shown on the plan marked as "107a" and bounded by a
pink line. The green drain runs through the premises from left to right y-j
in the plan and then towards the bottom of the plan down the mews. At
the date of the grant of the lease the demised premises drained into the
public sewer in Pimlico Road by means of the green drain, which was
intended to take both surface and foul water. The green drain was not
expressly identified or referred to in the lease. In this court it has been
common ground that (a) that part of it which was situated beneath the
demised premises formed part of "the demised premises" within the E
meaning of clause 2(iii); (b) the lease included the implied grant of an
easement of drainage through that part of the green drain situated
beneath the mews and belonging to the plaintiffs.
Before the lease was granted, the defendant made no structural
survey of the drains serving the demised premises and at the date of the
grant neither the plaintiffs nor the defendant knew of the existence of
the green drain outside the demised premises. The plaintiffs had not
carried out any works of maintenance to it for many years, if ever.
There are two manholes situated beneath the demised premises
which are shown by dotted lines on the plan and respectively marked
"1" and "2." The green drain is shown as running from manhole 1 on
the left of the plan to manhole 2 on the right of the plan and then
bending round so as to run from manhole 2 to a third manhole G
(numbered "3") at the bottom end of the mews. Manhole 3 was sealed
shut and only at the conclusion of the excavations to which we will refer
was it opened by the defendant's builders and found to be dry. There is
also a manhole situated under the mews very near the defendant's
boundary, shown in a circle on the plan and marked "4."
Following the grant of the lease the defendant and a company called
Homeworks Furnishings Ltd. ("Homeworks") converted the demised "
premises from a warehouse into a showroom at a cost of around
200,000. In March and early April 1979 it became apparent that the
green drain serving the demised premises was defective. The defendant
 695
1 Q.B. Duke of Westminster v. Guild (C.A.)
A and Homeworks employees found on opening manhole 1 that the drain
was blocked.
By 2 April 1979 the plaintiffs had been informed of the want of
repair of the drain and thereafter a series of meetings took place at the
demised premises in connection with the drainage problems. Various
investigations were carried out and the defendant made various attempts
to clear the drain. These investigations and attempts were described or
B detailed in the statement of facts. Eventually the large manhole no. 2
was discovered underneath the demised premises. There had been no
obvious indication of its existence; its inspection cover had been covered
over before the grant of the lease. Most important of all (we quote from
the statement of facts):
"The green drain leading from manhole no. 2 along the mews
C towards manhole no. 3 was full of earth and appeared not to have
been cleared or maintained for many years."
So far as the plan shows, there was no other drain which served the
demised premises, so that it is not surprising to learn from the statement
of facts that the contractors excavating the premises ran into waterlogged
ground before striking the run of the green drain.
D In order to avoid the expense of rebuilding the entire length of the
green drain, it was agreed between the plaintiffs and the defendant that
he should be at liberty to construct a new drain connecting the demised
premises to a private sewer of the plaintiffs which served the mews and
is shown coloured red on the plan. A new manhole was also constructed.
Its position and that of the new drain are shown coloured violet on the
E Plan-
The defendant and Homeworks incurred expenses totalling about
17,000, in respect of the costs of the drainage, excavation and building
works and other incidental expenses. The defendant contends that he is
entitled to set off this expenditure against the rent which otherwise is
admittedly owing from him. The plaintiffs contend that he alone is liable
for the cost in question and that he is not entitled to make any such set-
F off. It is common ground that, if a local authority had lawfully called
upon the defendant to repair the green drain, he would have been under
an obligation to the plaintiffs to carry out such works pursuant to a
subsidiary provision of clause 2(iii) of the lease, which obliged him to
carry out all works whatsoever which public authorities might lawfully
require to be carried out on the demised premises.
Q By his order of 2 July 1982 the judge declared:
"It is adjudged and declared that (1) upon the true construction of
the lease dated 11 August 1976 made between the plaintiffs and the
defendant under which the plaintiffs let to the defendant the
premises known as 107a Pimlico Road, London SW1 in the City of
Westminster the plaintiffs had an obligation to the defendant to
make repair and scour all party walls gutters sewers and drains
belonging to or which should in future belong to the demised
premises therein mentioned or be used jointly with the occupiers of
any adjoining or neighbouring hereditaments (2) that the plaintiffs
owed to the defendant a duty to take reasonable care to keep in
696
Duke of Westminster v. Guild (C.A.) [1985]
repair and unobstructed the drain referred to as 'the green drain' in A
the agreed statement of facts where not subjacent to the demised
premises and (3) that the plaintiffs were on 28 February 1979 in
breach of the said obligation the said duty and clause 5 of the said
lease and for an amount of damages to be assessed by a circuit
judge assigned to official referee's business. It is further adjudged
and ordered that the plaintiffs do have leave to contend that the
damages to be assessed as aforesaid should be abated in whole or in ^
part by reason of the provision of clause 2(iv) of the said lease."
For the rest of this judgment, we shall refer to that part of the green
drain which is subjacent to the demised premises as "the tenant's part of
the green drain" and to that part which is subjacent to the property
retained by the landlords as "the landlords' part of the green drain." _
Mr. Lewison, on behalf of the defendant, has sought to support the
decision of the judge on two alternative bases, which are substantially
the same as those relied on by the judge, namely that (a) the lease on
its true construction places on the landlords an implied contractual
obligation to keep in repair and unobstructed the landlords' part of the
green drain; (b) even if the lease imposes no such implied contractual
obligation, the landlords are under a duty of care to the lessee, which D
obliges them to do these things.
We will deal separately with both these arguments.

Implied contractual obligation

The green drain must undeniably fall within the class of drains
referred to in clause 2(iv) of the lease. Mr. Lewison conceded, as he had E
to concede, that under clause 2(iii) the obligation to repair the tenant's
part of the green drain undeniably falls on the tenant. Nevertheless he
pointed out, having regard to clause 2(iv), the landlords clearly have the
right to do works to the landlords' part of the green drain and then to
submit a demand to the tenant for reimbursement of a "fair proportion"
of the cost of such works. We observe in passing that (i) the fair
proportion in this context must be the whole, since the green drain
serves only the demised premises; and (ii) in the event of failure by the
tenant to repair the tenant's part of the green drain, the landlords would
under clause 2(vi) have a similar right to do works to that part also, and
to debit the tenant with the cost.
In view of the specific obligation to pay the cost of repairs to the
green drain which the lease imposes on the tenant and the rights of the G
landlords to effect the repairs, the only way to make sense of this lease,
it is submitted on behalf of the defendant, is to imply a correlative
obligation on the landlords to carry out the repairs to the landlords' part
of the green drain. In deciding that such an obligation exists, the judge
principally relied on the decision in Barnes v. City of London Real
Property Co. [1918] 2 Ch. 18. In that case landlords had let various sets
of rooms and by the tenancy agreement had imposed on the tenants the
obligation to pay a stated additional rent specifically for the cleaning of
rooms by a house-keeper to be provided for the purpose. The agreements
placed no express obligation on the landlords to provide for the cleaning
 697
1 Q.B. Duke of Westminster v. Guild (C.A.)
A of the rooms, but Sargant J., (albeit obiter) was of the clear opinion that
such an obligation should be implied: see pp. 32 and 33. That, however,
was a much stronger case than the present, if only because the obligation
of the tenants to pay the rent for the particular service was an
unqualified obligation to pay a definite periodic amount in respect of
that service, the obligation to pay not being expressed so as to be
conditional on the provision of the service or on the service of notice
B requesting payment. Mr. Lewison also relied on the decision in
Edmonton Corporation v. W. M. Knowles & Son Ltd. (1961) 60 L.G.R.
124, 127, where McNair J. implied from a provision in a lease obliging
the tenant to pay to the landlords "the cost . . . of painting . . . in a
workmanlike manner every third year of the term all outside wood and
metal work and other external parts of the demised premises" a matching
Q obligation on the landlords to do the repairs: see p. 128.
We do not question the correctness of these two decisions on their
particular facts, or doubt that in some instances it will be proper for the
court to imply an obligation against a landlord, on whom an obligation
is not in terms imposed by the relevant lease, to match a correlative
obligation thereby expressly imposed on the other party. Nevertheless
we think that only rather limited assistance is to be derived from these
D earlier cases where obligations have been implied. The general rule is in
our judgment correctly stated in Woodfall, Landlord and Tenant, 28th
ed. (1978), vol. 1, para. 1-1465, p. 618:
"In general, there is no implied covenant by the lessor of an
unfurnished house or flat, or of land, that it is or shall be reasonably
fit for habitation, occupation or cultivation, or for any other purpose
E for which it is let. No covenant is implied that the lessor will do any
repairs whatever . . . "
On occasions special facts may no doubt justify a departure from the
general rule. However, the decision of the Court of Appeal in Sleafer v.
Lambeth Borough Council [1960] 1 Q.B. 43 well illustrates that, though
the provisions of a lease may indicate the parties' contemplation that in
F fact and in practice the landlord will do repairs, and indeed may confer
express rights on him to enter the demised premises for this purpose, it
does not follow that any contractual obligation to do the repairs is to be
implied against him: see, for example, pp. 56-57, per Morris L.J.
When then is the test to be applied in considering whether an
obligation is to be implied against the landlords in the present instance?
Q In Liverpool City Council v. Irwin [1977] A.C. 239 the House of Lords
had to consider the nature and extent of the obligations of landlords of a
building in multiple occupation to repair essential means of access. In
the Court of Appeal [1976] Q.B. 319 Lord Denning M.R. had suggested
that the court had power to imply a term if it was reasonable so to do,
and held that the landlords were under an implied obligation to repair
accordingly. The majority (Roskill and Ormrod L.JJ.) came to a contrary
H conclusion. Roskill L.J. said, at p. 337:
"But I am afraid, with profound respect, I cannot agree with his
view that it is open to us in the court at the present day to imply a
term because subjectively or objectively we as individual judges
698
Duke of Westminster v. Guild (C.A.) [1985]
think it will be reasonable so to do. It must be necessary in order to A
make the contract work as well as reasonable so to do, before the
court can write into a contract as a matter of implication some term
which the parties have themselves, assumedly deliberately, omitted
to do."
The House of Lords unequivocally rejected the suggestion of Lord
Denning M.R. that the courts have power to introduce terms into j$
contracts merely because they think them reasonable. Nevertheless they
supported his ultimate conclusion, by allowing the appeal on rather
different grounds. Lord Cross of Chelsea [1977] A.C. 239, 257-258,
referred to the distinction between two classes of case where the courts
are prepared to imply terms in contracts, a distinction pointed out by
Viscount Simonds and Lord Tucker in their speeches in Lister v.
Romford Ice and Cold Storage Co. Ltd. [1957] A.C. 555, 579, 594. The c
first class of case is where the court lays down a general rule of law that
as a legal incident of all contracts of a certain type (sale of goods,
master and servant, landlord and tenant and so on) some provision is to
be implied. The second class is where there is no question of laying
down any prima facie rule applicable to all cases of a defined type, but
the court is being asked in effect to rectify a particular contract by rj
inserting in it a term which the parties have not expressed. In this
second situation, as Lord Cross of Chelsea pointed out, a quite different
test is applicable.
In Liverpool City Council v. Irwin [1977] A.C. 239 at least the
majority of the House of Lords clearly regarded the case as falling
within the first class of case referred to by Lord Cross. Lord Wilberforce,
with whose speech Lord Fraser of Tullybelton agreed, pointed out, at p. E
254, that the court was there simply concerned to establish what the
contract was, in the absence of a formal tenancy agreement, the parties
themselves not having fully stated the terms: see pp. 253 and 254. He
concluded, at p. 254:
"The relationship accepted by the corporation is that of landlord
and tenant: the tenant accepts obligations accordingly, in relation F
inter alia to the stairs, the lifts and the chutes. All these are not just
facilities, or conveniences provided at discretion: they are essentials
of the tenancy without which life in the dwellings, as a tenant, is
not possible. To leave the landlord free of contractual obligation as
regards these matters, and subject only to administrative or political
pressure, is, in my opinion, inconsistent totally with the nature of
this relationship. The subject matter of the lease (high rise blocks) ^
and the relationship created by the tenancy demand, of their nature,
some contractual obligation on the landlord."
He regarded it as a "legal incident of this kind of contract": see p. 255.
Lord Cross of Chelsea likewise thought that the type of case was one
which rendered it appropriate for the court to lay down a prima facie
rule. He pointed out, at p. 259, that the general principle is that the law "
does not impose on a servient owner any liability to keep the servient
property in repair for the benefit of the owner of an easement. He said,
however, at p. 259:
 699
1 Q.B. Duke of Westminster v. Guild (C.A.)
A "In such a case I think that the implication should be the other way
and that, instead of the landlord being under no obligation to keep
the common parts in repair and such facilities as lifts and chutes in
working order unless he has expressly contracted to do so, he
shouldat all events in the case of ordinary commercial lettings
be under some obligation to keep the common parts in repair and
the facilities in working order unless he has expressly excluded any
B such obligation."
The present case is in our judgment distinguishable from Liverpool
City Council v. Irwin [1977] A.C. 239 in at least two material respects.
First there is a formal lease which, on the face of it, represents the
apparently complete bargain between the parties. Secondly, this present
case is not in our opinion a type of landlord-tenant situation, which
^ gives rise to special considerations, such as the case of a high-rise
building in multiple occupation, where the essential means of access to
the unit are retained in the landlord's occupation, thus making it
appropriate for the court to imply any particular term as a legal incident
of the contract.
Accordingly, for the purpose of considering whether the suggested
j) contractual obligation falls to be implied in the present case, we can see
no justification for applying a test more favourable to the defendant
than the test applicable to the construction of any ordinary commercial
lease of unfurnished premises or land which does not fall into a special
category such as was referred to by Lord Wilberforce or Lord Cross of
Chelsea. While this test is capable of being formulated in many different
ways, it is clearly stated by Lord Cross in Liverpool City Council v.
E Irwin [1977] A.C. 239, 258:
"Sometimes, however, there is no question of laying down any
prima facie rule applicable to all cases of a defined type but what
the court is being in effect asked to do is to rectify a particular
often a very detailedcontract by inserting in it a term which the
parties have not expressed. Here it is not enough for the court to
F say that the suggested term is a reasonable one the presence of
which would make the contract a better or fairer one; it must be
able to say that the insertion of the term is necessary to giveas it
is put'business efficacy' to the contract and that if its absence had
been pointed out at the time both partiesassuming them to have
been reasonable menwould have agreed without hesitation to its
_ insertion."
CJ
This is the test which we consider relevant in the present instance; as
Lord Edmund-Davies pointed out in the last-mentioned case, at p. 266,
"the exercise involved is that of ascertaining the presumed intention of
the parties," by which of course he meant both parties to the contract.
Applying this test to the construction of the lease in the present case,
we find ourselves quite unable to supply the suggested provision in the
favour of the defendant by a process of implication. There are far too
many factors which seem to us to point in the opposite direction.
First, clause 2 of the lease contains a number of careful and elaborate
provisions defining the tenant's contractual obligations in regard to
700
Duke of Westminster v. Guild (C.A.) [1985]
repair and maintenance. If it had been intended that other contractual A
obligations relating to repair should be placed on the landlords
themselves, one would prima facie have expected this particular lease to
say so.
Secondly, the obligations which it is now sought to impose on the
landlords by a process of implication would be obligations of an
extensive and onerous nature. Mr. Lewison accepted, and contended,
that, if the landlords were under an obligation to repair the drains
mentioned in clause 2(iv) of the lease, a similar obligation would fall
upon them in regard to all the other items mentioned in that sub-clause
(such as party and other walls and gutters and the surface of the
roadway)and indeed that they would be subject to a positive obligation
to preserve "the amenities of the demised premises and adjacent or
neighbouring premises." Q
Thirdly, as Mr. Lightman pointed out, the implied covenant
contended for by the defendant would in some respects be in direct
conflict with express provisions of the lease. For, as has already been
said, the implied covenant is claimed to extend to all the items
mentioned in clause 2(iv) of the lease. But these items include, inter
alia, walls, gutters and sewers "belonging to the demised premises,"
which the tenant is plainly obliged to repair by virtue of clause 2(iii). D
Fourthly, the implication of the suggested obligation does not seem
to us in any way necessary to make the scheme of the lease a workable
one. The subject of the dispute, that is the landlords' part of the green
drain, is property in respect of which the tenant enjoys an easement of
drainage governed by the general law of easements. It is well settled
that the grant of an easement ordinarily carries with it the grant of such c
ancillary rights as are reasonably necessary to its exercise or enjoyment:
Jones v. Pritchard [1908] 1 Ch. 630, 638, per Parker J. In our opinion,
therefore, it is plain that the tenant would have the right, when
reasonably necessary, to enter the landlord's property for the purpose of
repairing that drain and to do the necessary repairs. In contrast,
however, it is an equally well settled principle of the law of easements
that, apart from any special local custom or express contract, the owner F
of a servient tenement is not under any obligation to the owner of the
dominant tenement to execute any repairs necessary to ensure the
enjoyment of the easement by the dominant owner; apart from special
local custom or express contract, the law will ordinarily leave the
dominant owner to look after himself: see Gale on Easements, 14th ed.
(1972), p. 47 and Holden v. White [1982] Q.B. 679, 683-684 per Oliver G
L.J.
Thus, if regard is to be paid to considerations of business efficacy, we
think that a perfectly workable scheme may be derived from this lease in
regard to the green drain, without implying any such obligations as that
for which the defendant contends. The scheme is as follows, (a) The
tenant is under a contractual obligation to keep in repair at his own cost
the tenant's part of the green drain: clause 2(iii). (b) If the tenant allows "
the tenant's part of the green drain to go into disrepair, the landlords
have the right under clause 2(vi) to enter the demised premises, do the
necessary repairs themselves and debit the tenant with the cost, (c) The
 701
1 Q.B. Duke of Westminster v. Guild (C.A.)
A landlords have the right, if they choose, to do repairs to the landlords'
part of the green drain and to demand reimbursement of the cost of
such repairs by the tenant, under clause 2(iv). (d) If the landlords do
not keep the landlords' part of the green drain in good repair, the
tenant has the right, as ancillary to his easement of drainage, to enter
the landlords' property and do the necessary repairs, again at his own
cost.
B Perhaps it would have been sensible or even reasonable for the
defendant on entering into the lease to exact an express covenant by the
plaintiffs to do these repairs. But he did not do so and we find it
impossible to presume an intention on the part of all parties to the lease
that such a covenant should be included. An obligation of this nature
cannot in our judgment properly be added to the lease by a process of
Q implication.

Duty of care
We now turn to consider the defendant's submissions based on an
alleged breach of duty of care by the plaintiffs. There is a general
principle established by such cases as Hargroves, Aronson & Co. v.
D Hartopp [1905] 1 K.B. 472 and Cockbum v. Smith [1924] 2 K.B. 119
which is summarised, in our opinion accurately, in Woodfall, Landlord
and Tenant, 28th ed. (1978), vol. 1, para. 1-1469, p. 621:
"Where the lessor retains in his possession and control something
ancillary to the premises demised, such as a roof or staircase, the
maintenance of which in proper repair is necessary for the protection
E of the demised premises or the safe enjoyment of them by the
tenant, the lessor is under an obligation to take reasonable care that
the premises retained in his occupation are not in such a condition
as to cause damage to the tenant or to the premises demised."
In Hargroves, Aronson & Co. v. Hartopp [1905] 1 K.B. 472 the
plaintiffs were tenants of a floor in a building of which the defendants
F were the landlords. A rainwater gutter in the roof became stopped up
and the defendants failed to clear it out for a few days after receiving
notice of the stoppage. They were held to be in breach of a duty of care
to the plaintiffs and liable for the damage done. In Cockbum v. Smith
[1924] 2 K.B. 119 the facts were similar and the defendant landlords
were held liable to the tenant for damage suffered by her as a result of
Q defects in the guttering of the roof of the building of which the landlord
retained control. Scrutton L.J. considered, at p. 133, that the landlord's
duty was based on "that modified doctrine of Rylands v. Fletcher (1868)
L.R. 3 H.L. 330 which is applicable where he retains in his control an
artificial construction which becomes a source of danger to his tenant."
Bankes and Sargant L.JJ. preferred not to decide whether the relevant
duty arose out of a contract between the parties or whether it was an
" instance of the duty imposed by law upon an occupier of premises to
take reasonable care that the condition of his premises does not cause
damage: see [1924] 2 K.B. 119, 130 and 134. But they expressed no
doubt that the relevant duty existed.
702
Duke of Westminster v. Guild (C.A.) [1985]
Mr. Lewison forcefully submitted that in the present case the A
plaintiffs have retained in their possession and control something
ancillary to the demised premises, that is the landlords' part of the green
drain, the maintenance of which in proper repair is necessary for the
proper protection of the demised premises and the safe enjoyment of
them by the defendant. Accordingly, he submitted, the plaintiffs are
under a duty to take reasonable care that the landlords' part of the
green drain is not in such a condition as to cause damage to the demised B
premises. It matters not, in his submission, whether the duty is properly
to be considered as arising at common law, having regard to the
principles governing the torts of nuisance or negligence, or in contract,
having regard to the duty of the landlords not to derogate from their
grant or to interfere with the tenant's quiet enjoyment of his premises
(as to which see clause 5 of the lease). Whichever be the right way of Q
looking at the matter, in his submission the duty exists, as a legal
consequence of the relationship between the plaintiffs and the defendant,
quite irrespective of clause 2(iv) of the lease. True it is that a servient
owner is normally under no liability to repair the subject matter of the
easement. However, Mr. Lewison contended, the position is different
where a landlord and tenant relationship subsists. He referred by way of
analogy to the decision of this court in Hilton v. James Smith & Sons D
(Norwood) Ltd. (1979) 251 E.G. 1063 as illustrating that landlords may
be under a positive duty to their tenants to prevent obstruction of a
right of way.
Mr. Lewison's argument was very well presented and we found it an
attractive one. Nevertheless we are not persuaded by it. To explain our
reasons, we begin by emphasising that this is not a case such as g
Hargroves, Aronson & Co. v. Hartopp [1905] 1 K.B. 472 or Cockburn
v. Smith [1924] 2 K.B. 119 (and a number of others in the same line of
authority) where there has been an escape of some dangerous, noxious
or unwelcome substance from the landlords' premises to the demised
premises. The situation in the present case is quite different. Here the
essence of the defendant's complaint is that because of the lack of repair
of the green drain, he has been prevented from discharging noxious F
water from his own premises on to the landlords' premises through the
green drain. It is the water from the defendant's own premises which
has caused the demised premises damage.
However, in the absence of a specific right enjoyed by his neighbour,
there is no general duty on a landowner to receive noxious water
flowing from his neighbour's land. In the present case, it is the tenant's Q
easement of drainage which alone entitles him to discharge noxious
water into the plaintiffs' land through the landlords' part of the green
drain.
In these circumstances, the obstacles in the way of the tenant in
seeking to establish liability on the part of the landlords to repair the
landlords' part of the green drain, on the basis of cases such as
Hargroves, Aronson & Co. v. Hartopp [1905] 1 K.B. 472, are in our "
judgment insuperable. To establish such a liability, he has to establish
the requisite duty on the part of the landlords to repair the drain. In the
absence of any express or implied covenant in the lease, however, this
 703
1 Q.B. Duke of Westminster v. Guild (C.A.)
A he cannot do. The general law of easements applies and, as we have
already pointed out, clearly imposes no such obligation on the landlord.
On the contrary the defendant himself, though theoretically under no
obligation to repair the plaintiffs' part of the green drain, could find
himself in practice obliged to do so, in order to avoid committing a
trespass against the landlords by the escape of water through that part:
see Gale on Easements, 14th ed. (1972), pp. 45-46 and Jones v.
B
Pritchard [1908] 1 Ch. 630, 638-639, per Parker J. The fact that the
relevant easement happens to have been granted to the tenant under a
lease does not assist him in any way. If, at the time of the grant of the
lease, he wished to impose on the landlords in relation to any easements
granted to him more onerous duties than would be implied under the
general law, it was in our judgment incumbent on him to ensure that the
C lease so provided.
In addition to holding the plaintiffs liable to the defendant on the
bases of implied covenant and the principle of Hargroves, Aronson &
Co. v. Hartopp [1905] 1 K.B. 472, the judge also held them liable
specifically on the bases of breach of covenant for quiet enjoyment or
derogation from grant. As to the latter heads, he relied on the decision
j-) of this court in Booth v. Thomas [1926] Ch. 397. In that case a landlord,
whose predecessor in title had enclosed a natural stream in an artificial
culvert which was incapable of retaining it, was held liable to the tenant
for injury suffered by the demised premises as a result of the outflow of
water consequent upon the culvert falling into disrepair. The Court of
Appeal, without finding it necessary to decide whether liability arose on
other grounds also, considered that it arose under an express covenant
E for quiet enjoyment contained in the lease. This decision shows that a
mere act of omission on the part of a landlord is capable of constituting
a breach of the covenant for quiet enjoyment, if, but only if, there is a
duty to do something: see for example, at p. 403, per Pollock M.R. and,
at p. 410, per Sargant L.J. In that case "it was the duty of the owner of
this culvert, which, if neglected, might cause damage to the adjacent
F property, to prevent such damage by taking reasonable precautions": see
pp. 403-404, per Pollock M.R. In the present case, for the reasons given
earlier in this judgment, we are of the opinion that no relevant duty fell
on the plaintiffs. The express covenant for quiet enjoyment and implied
covenant against derogation from grant cannot in our opinion be invoked
so as to impose on them positive obligations to perform acts of repair
which they would not otherwise be under any obligation to perform.
It follows that this appeal must succeed. In conclusion we would
make three unconnected observations:
First, while in the course of this judgment we have frequently used
the single word "repair" in connection with the green drain, it should,
where the context permits, be read as including references to cleansing
and unblocking this drain.
H Secondly, we think that the present case well illustrates that a tenant
who contemplates that his landlord shall carry out repairs to property
retained by the landlord over which the tenant is granted easements will
ordinarily be well advised to demand an express covenant to this effect.
704
Duke of Westminster v. Guild (C.A.) [1985]
Thirdly, in this court we have clearly had the benefit of a much fuller A
argument on the relevant law than did the judge, at least in regard to
the law of easements. We get the impression from his judgment that this
important aspect of the case was not specifically ventilated in argument
before him at all, because the word "easement" appears nowhere in his
judgment.
As things are, respectfully differing from his conclusion, we must
allow this appeal. We will set aside his judgment and declare in effect ^
that on the true construction of the lease the plaintiffs are under no
obligation to the defendant to keep the green drain in repair and
unobstructed.

Appeal allowed with costs in Court

of Appeal and below. Q
Leave to appeal refused.
Solicitors: Boodle Hatfield & Co.; T. J. James & Sarch.

A. R.
C. T. B.
D

E
[COURT OF APPEAL]

JONES v. JONES
1984 June 5; 21 Stephenson, Dunn and Robert Goff L.JJ.

DamagesPersonal injuriesDivorcePlaintiff severely injured due F

to defendant's negligenceBreak up of marriage because of
injuriesWife's claim for ancillary relief following divorceExtra
expense of maintaining wife and family in separate establishments
Whether recoverable
The plaintiff was severely injured in a road accident caused
by the negligence of the defendant. As a result of his injuries
the plaintiff became incapable of managing his property and G
affairs and his marriage broke up. Agreement was reached
between the parties for damages for future loss of earnings. The
plaintiff claimed further damages for sums likely to be awarded
against him to his wife and children in the matrimonial
proceedings for the dissolution of the marriage. At the hearing
of the action on 5 November 1982 Stocker J. held that, although
any increase in the expenses of maintaining his former wife and J_J
children in a separate establishment was not too remote to be
recoverable by way of damages, no such damages were
recoverable as the plaintiff had failed either to prove or quantify
any such loss. On 19 February 1983 a consent order was made