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FAC251 Limited, operator of Manchester music venue 'The Factory', has failed to obtain rent relief under the Commercial Rent (Coronavirus) Act 2022 after the arbitrator ruled that the application had been filed too late.

The preliminary issue in FAC251 Limited and Zecol Limited -v- Silver Pagoda Realty Group Ltd concerned whether there was deemed delivery of the application by the deadline.

As the application had not actually been received by 23 September 2022, being the latest date for arbitration applications under the Commercial Rent (Coronavirus) Act 2022, arbitrator Barry Denyer-Green had to decide whether there had nevertheless been 'deemed delivery' of the application by the deadline. 

The Applicant's principal argument relied on the Recorded Delivery Service Act 1962. However, by using first class post and not the recorded delivery service on the posting of the application, the arbitrator found the Applicant was unable to rely on the Act's provisions for deemed service. The Act did not apply.

The Applicant also sought to rely on Section 7 of the Interpretation Act 1978 which provides that, where an Act requires or allows a document to be served by post, service is deemed to be effected by properly addressing, pre-paying and posting the document. Service is then deemed to be effected when the document would be delivered in the ordinary course of post, unless a contrary intention can be shown.  Here, the arbitrator found that a contrary intention could on the balance of probabilities be shown, and the application was not as a matter of fact received by the deadline.

The arbitrator also found evidence provided regarding an emailed version of the applications to be insufficient.

The Applicant was ordered to pay the Respondent's costs of the arbitration, as the Arbitrator saw no reason why the Respondent should have to bear the costs of dealing with an application made after the statutory deadline had passed. 

This case highlights the importance of making applications on time, and sending associated documents on time – 'deemed service' will not always come to the rescue of a party who fails to strictly comply.