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Whinney, chartered accountant, was appointed Receiver of the under- taking, property, and assets of the Company comprised in the Debenture Trust Deed and to manage the business of the Company. Mr. Whinney accordingly carried on the hotel business of the Company until possession of the hotel and premises was taken on behalf of the Secretary of State for War as hereinafter mentioned.
On the 18th April 1916, the Supplies Division of His Majesty's Office of Works applied to Mr. Whinney by letter and asked at what rent he would be prepared to let the whole of the Hotel premises (with the exception of the shops) to that Department, for use as offices for the remaining period of the War, and not inprobably, say, for a maximum period of three months after the conclusion of peace. There had been an inspection of the property on behalf of the Government and an interview with Mr. Whinney before this letter was written. Mr. Whinney answered suggesting 19,0007, a year rent, subject to various conditions fully set forth in his letter. An interview followed on the 28th April 1916 between Mr. Whinney and a representative of the Office of Works, at which Mr. Whinney states that he was asked whether he could not make the rent 17,500. The next day a letter was written to Mr. Whinney from the Office of Works stating that the Board were of opinion that it would be to the advantage of all concerned to refer the question of the amount to be paid by the Government for the use of the premises to the Defence of the Realm Losses Commission; and added that, in these circumstances, the Board had no option but to communicate with the War Office with a view to the Ilotel premises (excinding the shops) being requisitioned under the Defence of the Realm Acts in the usual
manner.
The Defence of the Realm Losses Commission was appointed to inquire and report to the Treasury with regard to claims for direct and substantial loss and damage, "in cases not otherwise provided for," which words have always been held by the Commissioners to exclude all cases where the applicant had or claimed to have any rights enforceable in a court of law under any statutory enactment, or under any agreement to which the Crown was party.
On the 1st May 1916, Mr. Whinney answered by declining to concur in the suggestion that the amount to be paid by the Government for the use of the Hotel should be referred to the Defence of the Realm Losses Commission, but nevertheless offering to facilitate the acquisition of the premises by the War Office, and consenting to possession of the premises being given to the authorities' representative (Mr. R. C. Cole) on Monday, the 8th May, at 11, subject to the consent of the Court (as he was Receiver under the Court), which was duly obtained.
The attitude adopted by Mr. Whinney throughout was to give effect to the wishes of the authorities, and not to put them to any unnecessary trouble or delay, but to preserve all legal rights. He consented to give possession, and did give possession to Mr. K. C. Cole, of His Majesty's Office of Works, on the 8th May, having previously arranged for all the guests to leave the Hotel.
There is a further letter, of the 1st May 1916, from the Lands Branch of the War Office, stating that the Army Council will take possession on the 8th May under the "Defence of the Realm Regulations"; also enclosing a form of claim for submission to the Losses Commission, and stating that compensation is made ex gratia, and is strictly limited to the actual monetary loss sustained.
Thus the authorities were given possession on the 8th May 1916, and have ever since retained it.
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At the trial, Sir Charles Ernest Heath, Deputy Quartermaster-General to the Forces gave evidence that the premises were required for the Air Service, but that when the Air Board was formed the Air Service moved from De Keyser's Hotel to the Hotel Cecil. According to the evidence of Mr. Fane (of the Office of Works) after the Flying Corps left De Keyser's, the premises were used by the Government for other sections of the War Office brought from other premises. There is not any further evidence,
as to the purposes for which these Hotel premises are still being used by the Government. Throughout the whole period, the premises have been used for administration purposes, for which they were considered suitable, having regard to the large number of rooms and the lighting and central heating arrangements.
On the 5th May Mr. Whinney wrote to the Office of Works informing them that notice had been given to all the guests of the Hotel to leave, and that possession would be given to the authorities on the Sth May, the letter proceeded as follows: "The loss involved in the closing of the Hotel will be very heavy, and I do most earnestly ask the authorities to assist me in minimising as much as possible by concurring in the steps necessary to fix, and then paying, a fair occupation rent for the premises. I think that a fair rent might be fixed by personal negotiation between CC the representative of the authority requiring the building and myself, "but failing this I would ask you to agree to submit the question to arbitration. From a single arbitrator, such as the President of the Surveyors' Institute or Royal Society of British Architects, an award "of the fair rental might be expeditiously obtained, and the question of compensation could be left to be dealt with by some other tribunal. As I have to pay a head rent, you will I am sure appreciate the urgency
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of fixing an occupation rent without delay. You may rely upon my taking all necessary steps to hand you possession on Monday, and doing everything in my power to facilitate your arrangements.
On the 8th May 1916 possession of the Hotel was given to Mr. Fane of the Office of Works, by Mr. Whinney giving him the keys. The same day Mr. Whinney wrote to Mr. A. Durrant, the Controller of Supplies, at the Office of Works, informing him of that fact, and enclosing a memo- randum of what had been discussed at the interview-clause 7 of that note is as follows:-" 7 H.M. Office of Works do not recognise any claim for occupation rent, and they require that claim for compensation shall be seut in to the Office of Works for transmission on to the Duke Commis- sion." Sir Charles Heath stated in evidence at the hearing that he had to determine what premises should be taken, and that he dealt with De Keyser's Hotel; that he knew it was a matter of urgency, and as there appeared to be a prospect of delay, he sanctioned taking over De Keyser's under the Defence of the Realm Act; but on cross-examination stated there was no difficulty about possession, and an arrangement could have been made to settle the rent by arbitration afterwards.
Upon the facts, the conclusion must be arrived at that the Hotel and premises were occupied and taken and possession thereof given by the consent of the owners, although they reserved all their rights to rent or compensation. The attitude taken by Mr. Whinney on behalf of the owners was quite a proper one. He facilitated by all means in his power the occupation of the premises by the Government, and was active in taking steps for the departure of all the guests, but he reserved all his legal rights.
The Claim of the Suppliants is for rent or compensation for use and occupation during the period of occupation by the Government. The ground rent payable by the Company for the premises, under their leases, we were told amounted to 2,7577. 88. 7d. a year.
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