Trowers' property litigation weekly update
In this week's bulletin we consider two interesting cases. In the first, the landlord successfully upheld the validity of an early break notice even though it had been served four years before the break date by a previous tenant.
The second case determined that an insufficiently detailed claim form cannot be particularised through a separate letter, and that particularisation must happen within the limitation period. In the usual fashion, our bulletin is accompanied by some positive news, insights from around the firm and quiz questions.
Break notice by previous tenant binds assignee
In Vistra Trust Corporation (UK) Limited (as trustee for the Property Income Trust for Charities) v CDS Superstores International Limited  the Court was asked to determine whether a break notice which had been served by a previous tenant (i) had been validly served, and if so (ii) whether it was legally binding on that tenant's assignee such that the assignee was prevented from applying for a new tenancy pursuant to the Landlord & Tenant Act 1954 (the Act).
The case concerned a retail superstore trading as ‘The Range’ based in Widnes. A lease of the property had originally been granted to B&Q plc (B&Q) for a term of 21 years expiring on 11 February 2029 subject to a tenant’s contractual break option to determine the term on or after 11 February 2023 (the Break Date) on giving the landlord not less than six months written notice.
In 2018 B&Q served a break notice to terminate the lease on the Break Date. Two years later they assigned the lease to CDS Superstores International Limited (CDS), flagging that a break notice had been served. CDS subsequently served a request pursuant to section 26 of the Act for a new tenancy to commence the day after the Break Date.
The landlord applied for a declaration that the break notice had been validly served and that CDS did not therefore have a right to request a new tenancy because of the operation of section 26(4) of the Act which prevents service of a section 26 notice where a tenant has already served a notice to quit.
CDS made several valiant efforts to argue that the break notice was invalid, including that it had been served too soon, that there was insufficient evidence of the managing agents' authority to instruct that it was served and no evidence of proper service. They also argued that the format of the tenant's name was incorrect on the notice because there were insufficient spaces between the letters. However, the judge found in favour of the landlord on all these points and was satisfied that the notice had been validly served.
CDS also tried to argue that the wording of section 26(4) was such that it only precludes service of a section 26 notice where ‘the tenant’ has already given notice to quit and this meant the tenant who had served the break notice and not its successor in title. However, the judge rejected this, holding that it was not in line with previous judicial interpretation and that once a tenant has served a contractual break notice, then any tenant of those premises is precluded from making a request for a new tenancy.
This case is a useful reminder about the operation of break clauses by tenants in the context of the Act. It is clear that tenants will not be allowed a second bite of the cherry by applying for a new tenancy under the Act once a valid break notice has been served, either by the current tenant or a predecessor in title.
Particularising a Claim and the Limitation Act 1980
The High Court has ruled in favour of a Defendant's application to strike out a claim Free Leisure Ltd v Pedil and Company Ltd and another , deciding that an insufficiently detailed Claim Form cannot be particularised through a separate letter, and that particularisation must happen within the limitation period given under the Limitation Act 1980.
In December 2015, the Claimant (which runs a circus themed nightclub in Soho called Cirque Le Soir) employed the First Defendant, Peidl and Company Ltd, to install Christmas decorations at their commercial premises. A staple gun was used for the task, and allegedly a staple damaged a wire connecting a set of festive lights to their power source. This resulted in a fire. Although the First Defendant company was dissolved in October 2021, the claim was also brought against the First Defendant's insurers, QBE UK Limited (the Second Defendant).
Following the fire, the Claimant's solicitors sent a letter to the First Defendant in March 2016, putting them on notice of a possible claim. However, they did not issue their claim until November 2021, around one month before the six-year limitation period in the Limitation Act 1980, expired. They served the Claim Form four months later in March 2022, along with a Letter of Claim. The details on the Claim Form were sparse, and only stated that the claim "arose out of a breach of contract and/or negligence" although the Letter of Claim served at the same time provided details of the nature of the claim and heads of loss. Further Particulars of Claim were served by the Claimant in May 2022 following an agreed extension.
The Second Defendant applied for the claim to be struck out and for summary judgment as, amongst other things, the Claim Form did not contain a concise notice of the claim or specify the remedy sought, as required by CPR 16.2(1). The Second Defendant argued that issuing a bare claim form, to stop the limitation period running amounted to an abuse of process and, in any event, was insufficient to stop time running. They said that the Claim Form should be struck out for disclosing no reasonable grounds for bringing the claim.
The Claimant argued, inter alia, that although the Claim Form itself was defective, the Claimant had provided the Defendants with a factual basis for their claim in their letter in March 2016 and in other correspondence, including the Letter of Claim which was served with the Claim Form in March 2022. They said that the Claim Form needed to be looked at in light of the other documents which they claimed made up the 'Statement of Case' as a whole.
Deputy Judge Charles Hollander KC disagreed with the Claimant, finding that although a Claim Form can be concise, a minimum amount of information must be included. He stated that a Letter of Claim cannot be used to interpret or construe the Claim form. In any event, the Letter of Claim was created after the limitation had expired (when the Claim Form was served). Furthermore, the Particulars of Claim cannot be relied upon to explain the Claim Form as they were not served at the same time. It could not be said that the later Particulars of Claim pleaded the same causes of action as the Claim Form as the Claim form provided no effective cause of action.
The Claim was struck out.
Insights from around the firm:
- Energy Bills Discount Scheme – Help for Heat Networks
- Redevelopment and decants – what to watch out for
- Shared Services Toolkit – delivering services differently
48,000 people finished the London Marathon this year, with 45 new records set on the day. The final runner, Tom Durnin, who crossed the finish line with a time of 8 hours 10 minutes and 58 seconds, was welcomed with a brilliant reception. It has been revealed he was in a car crash in December and suffered a bleed on the brain and a broken arm from the crash but still managed to finish.
Omar de Jesús Vazquez Sánchez started SargaBlock to market bricks that he has been making from Sargassum seaweed, steering it away from Landfills and finding a sustainable solution to the current climate crisis.
The UK is looking to ban plastic wet wipes in hopes of tackling water pollution. The Government is launching a public consultation with some retailers (like Tesco and Boots) having already stopped selling them in favour of biodegradable alternatives.