Property litigation weekly update – 25 November 2021

In this week's bulletin, the team discuss the latest in the Cornerstone Telecommunications Infrastructure Limited v St Martins Property Investments Limited and another [2021] UKUT 262 (LC) case, Tomlin Orders and the Court's jurisdiction to interpret settlement terms and consultation on Pre-Action Protocols.

Telecoms case update: Cornerstone Telecommunications Infrastructure Limited v St Martins Property Investments Limited and another [2021] UKUT 262 (LC), an operator's multi-skilled visit, terms of access and intrusive investigative works

The operator in this reference, Cornerstone Telecommunications Infrastructure Limited ("CTIL"), required a new site to serve an area including the approaches to London Bridge Station, Borough Market and local hospitals. It identified a building known as 1 London Bridge as a potential replacement site for its electronic communications apparatus ("ECA") which was then located on a building in Borough High Street. However, the building's suitability for the installation of the operator's ECA needed to be assessed by the operator's contractors carrying out a survey, otherwise known as a multi-skilled visit ("MSV"), of the rooftop of the building.

CTIL applied to the Upper Tribunal (Lands Chamber) ("UT") for an order under paragraph 26 of the Code seeking the imposition of an agreement, on an interim basis, granting it access to the rooftop to carry out the MSV, as well as a right to carry out intrusive investigative works by which it would take up parts of the rooftop to assess the building's structure and suitability for its ECA.

The leaseholder of the building, St Martins Property Investments Limited, did not object to CTIL accessing the rooftop, but the issue turned on the terms under which access should be granted and, in particular, whether it was appropriate for intrusive investigative works to be permitted and, if so, to what extent. The leaseholder persuaded the UT that access should be granted only for non-intrusive investigative works at this stage, and to the extent that CTIL needed to later carry out investigative works of a more intrusive nature, it would be appropriate for intrusive investigations to be considered at a later stage. In addition, the UT was not prepared to order CTIL to reimburse the cost of a specialist telecommunications agent supervising access, and noted that in principle where non-intrusive investigations are being undertaken professional supervision is not something which operators should be expected to pay for. As to costs, the UT awarded the leaseholder its full transactional costs but only awarded a small proportion (£12,500 against £82,500 claimed) of its litigation costs, reiterating the warning in CTIL v Central Saint Giles General Partner Limited [2019] UKUT 183 (LC) that the Code regime is intended to facilitate the provision of telecommunications services at limited cost, and parties should ensure that costs do not become disproportionate to the matter at hand.

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Tomlin Orders and the Court's jurisdiction to interpret settlement terms: Gurgur v Rees & Others

This appeal to the High Court, regarding a landlord's claim for forfeiture of a lease, raised the question of whether the Court had jurisdiction to make a declaration as to the interpretation of a settlement agreement contained in the schedule to a Tomlin Order.

Tomlin Orders are consent orders which bring court proceedings to an end on agreed terms, usually contained in a schedule to that order. The proceedings are stayed while the terms set out in the schedule are implemented and the stay may only be lifted for the purpose of carrying those terms into effect. The key advantage of using a Tomlin Order is that the settlement terms contained in the schedule may go beyond the subject matter of the litigation (and so beyond that which the Court has jurisdiction to decide) and this creates a binding contract between the parties that may be enforced by lifting the stay in proceedings.

In this case, the Tomlin Order provided that the appellant surrender part of its lease and pay certain sums "as a contribution to his liabilities under the existing lease and the [respondents'] costs of the proceedings". A dispute later arose as to whether the landlord was also entitled to mesne profits for the period until the tenant gave up possession and the landlord applied for a declaration as to the interpretation of the settlement terms. The tenant asserted that the Court had no jurisdiction to deal with such an application.

The County Court held (and the High Court agreed) that the application for a declaration was an application for the purpose of carrying the terms of the settlement into effect (i.e. to enforce it) and so could be dealt with by lifting the stay in the existing proceedings rather than having to bring a separate action.

The judge also determined that the agreement did not exclude the obligation to pay mesne profits – there was no express term to this effect and it was clear that mesne profits were not "liabilities under the existing lease". However, he made no findings as to whether mesne profits were in fact payable or whether the respondents would be successful in the necessary application to lift the stay in order to purse mesne profits.

This case serves as a reminder to ensure that the terms of settlement set out in the schedule to a Tomlin Order are clear and settle all matters in the proceedings.
Consultation on Pre-Action Protocols

The Civil Justice Council has launched a consultation on pre-action protocols, which closes on 24 December 2021.

The pre-action protocols of the civil procedure rules set out what must be done in relation to a civil claim before court proceedings are issued.

There are a number of pre-action protocols each of which apply to different types of claims and include dilapidations disputes, construction disputes etc. Where there is not a specific protocol for the type of matter in dispute the guidance on conduct set out in the Practice Direction on Pre-Action Protocols should be followed. The protocols encourage early disclosure and promote alternative dispute resolution.

Currently, failure to comply with a pre-action protocol will be taken into account in any costs award subsequently made by the court. The party who failed to comply with the protocol may be ordered to pay additional costs as a result. Other sanctions are also available for the court to deploy.

The consultation will consider whether compliance with the pre-action protocols should be mandatory (except in urgent cases), whether courts should have more powers in situations where the pre-action protocol is not complied with, whether a new pre-action protocol should be created with stricter time frames and disclosure obligations, and whether a costs procedure for pre-action costs should be implemented. The consultation also seeks feedback on whether there should be a mandatory requirement on the parties to compile a list of issues prior to issuing proceedings and whether parties should act in 'good faith' including engaging in formal alternative dispute resolution prior to referring the matter to the court.

The overall focus of the consultation is to seek feedback on the further promotion of early and low-cost settlement. Watch this space as the steps required to be taken by parties prior to claims look set to get stricter.
Positive news

  • Missing cat "Big Ginge" returns home to family 10 years after going missing. No one knows where he has been for the past decade!
  • Scientists at the University of Göttingen have devised a technique for turning popcorn into insulation boards for buildings. The team have said that the insulation boards have "excellent thermal insulation properties and good protection against fire" as well as being plant-based, environmentally friendly and a sustainable alternative to petroleum-based products frequently used at current.
  • The UK's largest urban "re-wilding" project has been given the green light. Allestree Park in Derby will become a wildlife hub providing many habitats for nature across its 320 acre grounds, including wetland, scrubland and orchard, as well as providing a "natural health service" for local residents to enjoy and connect with nature.

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