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The Licensee's Period of Grace: Bellotti Reconsidered
Published online by Cambridge University Press: 16 January 2009
Extract
At present the law fails to provide an adequate balance between the interests of licensor and licensee when a licensor revokes a licence but gives an unreasonably short notice. The prevailing orthodoxy has followed the Court of Appeal decision in Minister of Health v. Bellotti. This article will argue that the consequences of this decision have proved disastrous for both licensors and licensees. In direct conflict with Bellotti is the Privy Council authority of Canadian Pacific Railway Company v. The King.
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References
1 [1944] 1 K.B. 298.
2 [1931] AC. 414.
3 The Times, 13 April 1995. Full transcript on Lexis.Google Scholar
4 (1980) 253 E.G.L.R. 473.
5 Also see Australian Blue Metal Ltd. v. Hughes [1963] A.C. 74 where any period of grace to which the appellants were entitled would have expired long before the proceedings began.
6 [1948] A.C. 173 at 204–5.
7 [1953] 1 Q.B. 762 at 766.
8 See Tool Metal Manufacturing Co. v. Tungsten Electric Co. [1955] 1 W.L.R. 761; per Viscount Simonds and Australian Blue Metal, above, n. 5.
9 Ibid., at 99.
10 This discussion was obiter because the Privy Council decided that there had been no revocation.
11 At 432.
12 Unlike Wallshire Ltd. v. Advertising Sites Ltd. (1988) 33 E.G.L.R. 51.Google Scholar
13 Above, n. 6.
14 Above, n. 5.
15 See the analyses of Porter, Lord, 196 and MacDermott, Lord, 204–5Google Scholar in Winter Garden Theatre, above, n. 6. Also see Vaughan v. Vaughan above, n. 7.; Tool Metal Manufacturing Co. v. Tungsten Electric Co., above, n. 8; Isaac v. Hotel de Paris Ltd. [1960] 1 W.L.R. 239; Iveagh v. Martin and Another, [1960] 1 Q.B.D. 232; Australian Blue Metal v. Hughes above, n. 5; E. & L. Berg Homes Ltd. v. Grey and Another, above, n. 4.
16 Lord Uthwatt in Winter Garden Theatre above, n. 6, 199–200.
17 At 432.
18 Canadian Pacific still applies according to Carnwath J. "where the same or similar factualcircumstances apply".
19 At 305.
20 Above, n.11.
21 This distinction is however relevant, as will be seen later, in the calculation of the content of a reasonable notice.
22 Lord MacDermott in Winter Garden Theatre did recognise that a licensee who occupies as a "specialised user involving obligations to third parties or the public" would suffer under Bellotti. But he was resigned to applying Bellotti across the board.
23 Above, n. 6 at 201.
24 Above, n. 5.
25 Per Lord Porter at 197. Nothing was said in the case about the requirement mentioned in the previous case law for alternative arrangements. But the discussion was technically obiter because the court held that the licensees should not be allowed to take advantage of the sub-letting arrangement (in breach of the contract) so as to prolong their occupation.
26 Lord MacDermott in Winter Garden Theatre, above, n. 6.
27 Above, n. 14.
28 Australian Blue Metal, per Lord Devlin; also see Bellotti per Lord, Greene M.R., Tool Metal Manufacturing, per Viscount Simonds.Google Scholar
29 Above, n. 5.
30 At 322.
31 At 308.
32 At 431.
33 The argument on estoppel was rejected by Carnwath J. in Hampstead Garden Suburb Institute on the basis that on the facts detriment had not been established. See also E. & L. Berg Homes, above, n. 4.
34 Unreported, C.A., 31 January 1984. Full transcript on Lexis.