YVA Case Updates: Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited and another
***SUPREME COURT GRANTS LEAVE TO APPEAL***
In Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited and another [2014] EWCA Civ 603, the Court of Appeal considered whether the tenant that exercised a break should be refunded rent and other payments for the period after the break date.
The Court of Appeal overturned the High Court’s decision and held that in the absence of an express provision in the lease requiring the landlord to refund any rent payable under the lease by the tenant in respect of a period after the tenant has exercised the break clause, there can be no implied term requiring the landlord to do so.
HOWEVER….
Although many commentators believe that the Court of Appeal’s decision was the correct one, on 11 November 2014, the Supreme Court granted Marks and Spencer PLC leave to appeal against the Court of Appeal’s decision.
A hearing date has not yet been set but we shall provided a full update once the decision has been handed down.
Article in PDF: Marks and Spencer PLC v BNP Paribas
Possession Proceedings – Unprecedented Changes (PD 55C)
The purpose of the changes is to take into account the effect of the pandemic on all parties maintaining confidence in fairness of outcomes, encouraging compromise and to ensure the defendants are provided with legal advice.
Current Restrictions
- Moratorium on forfeiture of business tenancies extended until 31 December 2020 and is further extended until 31 March 2021.
- In Commercial Rent Arrears Recovery proceedings (“CRAR”) the minimum unpaid rent must be equivalent to 276 days rent until 24 December 2020 and 366 days from 25 December 2020. The restriction on landlords using CRAR to recover unpaid rent will also automatically extend to the end of March, in line with the moratorium’s expiry date. This allows businesses sufficient breathing space to pay rent owed.
- PD 55C: Possession Proceedings
- Reactivation Notice required for stayed claims
- New notice requirements for new claims
Overall Arrangements
- Emphasis on compromise
- Legal advice and assistance for defendants
- Non-statutory best practice guidance:
– MHCLG guidance for private and social landlords and tenants
– NRLA Pre-Action Plan: Managing Arrears and avoiding possession claims
– FCA guidance ‘Mortgages and Coronavirus’ (to 31.7.2021)
– MHCLG Code of Practice for commercial property relationships during the Covid-19 pandemic (to 24.6.2021)
New Listing Priorities
- Court will no longer fix hearing dates when claim is issued
- No more block listing
- 21 days’ notice
- Cases will be given priority if they involve the following:
- Anti-Social behaviour allegations;
- Extreme rent arrears;
- Squatters or illegal occupiers and persons unknown;
- Fraud or Deception;
- Unlawful Subletting;
- Allegations of abandonment of the Property;
- Local authority temporary accommodation needed for reallocation
Covid-19 Case Marking
- Intended to highlight settlement suitability and assist the court in dealing with listing, case management and the exercise of discretion
- Any Defendant or private Claimant may request a case is marked
- Specified information required
- Upon making request must inform all other parties. Request will result in case marking unless objection raised
- Judge may also direct that a case is Covid-19 marked
Review and Substantive Hearing Dates
The Review (R) Date:
– a 5-minute non-attended appointment on the documents
– requirements of the claimant relating to bundles before R date
– requirement that claimant is available to discuss the case during the R date
– consequence of failure to resolve case on the R date
The Substantive (S) Hearing Date:
– a 15-minute hearing attended by all parties 28 days after the R Date
– a physical hearing unless the parties agree otherwise or contingency arrangements apply
– unless case resolved, a decision by the Court or further case management directions
– adjournment considered without application where advice not yet made available to Defendants and consequences of order ‘may be serious’
Accelerated Possession Claims
- As with existing rules, the court can still make a possession order without a hearing
- Reactivation notice requirements apply for stayed claims
- The same priorities apply as with normal cases in the order in which they will be dealt with
- Will be referred to judges “at a manageable frequency”
- Where the parties agree or there is no objection a review hearing can be ordered
Evictions
- 14 days’ notice of an eviction date required
- Indicated that applications for transfer to High Court will not be prioritised
- No execution of possession warrants or delivering notices of eviction between 17/11/2020 and 11/01/2021.
- The Public Health (Coronavirus)(Protection from Eviction and Taking Control of Goods)(England) Regulations 2020
- There will be no enforcement of possession orders “Where lockdown measures are in place to protect public health”
- No evictions over Christmas Period save for the most serious of cases
How will the arrangements work in Practice?
The key aims of the overall arrangements are to reduce volume in the system by enabling earlier advice and facilitating settlement. How well this works in Practice is yet to be seen. What we do know is that delays will be inevitable and Covid-19 Case Marking is likely to become the norm. In the circumstances, it appears the Accelerated possession claims may be the ‘Cinderella’ of the situation.
Possession Proceedings – Unprecedented Changes (PD 55C)
The purpose of the changes is to take into account the effect of the pandemic on all parties maintaining confidence in fairness of outcomes, encouraging compromise and to ensure the defendants are provided with legal advice.
Current Restrictions
- Moratorium on forfeiture of business tenancies extended until 31 December 2020 and is further extended until 31 March 2021.
- In Commercial Rent Arrears Recovery proceedings (“CRAR”) the minimum unpaid rent must be equivalent to 276 days rent until 24 December 2020 and 366 days from 25 December 2020. The restriction on landlords using CRAR to recover unpaid rent will also automatically extend to the end of March, in line with the moratorium’s expiry date. This allows businesses sufficient breathing space to pay rent owed.
- PD 55C: Possession Proceedings
- Reactivation Notice required for stayed claims
- New notice requirements for new claims
Overall Arrangements
- Emphasis on compromise
- Legal advice and assistance for defendants
- Non-statutory best practice guidance:
– MHCLG guidance for private and social landlords and tenants
– NRLA Pre-Action Plan: Managing Arrears and avoiding possession claims
– FCA guidance ‘Mortgages and Coronavirus’ (to 31.7.2021)
– MHCLG Code of Practice for commercial property relationships during the Covid-19 pandemic (to 24.6.2021)
New Listing Priorities
- Court will no longer fix hearing dates when claim is issued
- No more block listing
- 21 days’ notice
- Cases will be given priority if they involve the following:
- Anti-Social behaviour allegations;
- Extreme rent arrears;
- Squatters or illegal occupiers and persons unknown;
- Fraud or Deception;
- Unlawful Subletting;
- Allegations of abandonment of the Property;
- Local authority temporary accommodation needed for reallocation
Covid-19 Case Marking
- Intended to highlight settlement suitability and assist the court in dealing with listing, case management and the exercise of discretion
- Any Defendant or private Claimant may request a case is marked
- Specified information required
- Upon making request must inform all other parties. Request will result in case marking unless objection raised
- Judge may also direct that a case is Covid-19 marked
Review and Substantive Hearing Dates
The Review (R) Date:
– a 5-minute non-attended appointment on the documents
– requirements of the claimant relating to bundles before R date
– requirement that claimant is available to discuss the case during the R date
– consequence of failure to resolve case on the R date
The Substantive (S) Hearing Date:
– a 15-minute hearing attended by all parties 28 days after the R Date
– a physical hearing unless the parties agree otherwise or contingency arrangements apply
– unless case resolved, a decision by the Court or further case management directions
– adjournment considered without application where advice not yet made available to Defendants and consequences of order ‘may be serious’
Accelerated Possession Claims
- As with existing rules, the court can still make a possession order without a hearing
- Reactivation notice requirements apply for stayed claims
- The same priorities apply as with normal cases in the order in which they will be dealt with
- Will be referred to judges “at a manageable frequency”
- Where the parties agree or there is no objection a review hearing can be ordered
Evictions
- 14 days’ notice of an eviction date required
- Indicated that applications for transfer to High Court will not be prioritised
- No execution of possession warrants or delivering notices of eviction between 17/11/2020 and 11/01/2021.
- The Public Health (Coronavirus)(Protection from Eviction and Taking Control of Goods)(England) Regulations 2020
- There will be no enforcement of possession orders “Where lockdown measures are in place to protect public health”
- No evictions over Christmas Period save for the most serious of cases
How will the arrangements work in Practice?
The key aims of the overall arrangements are to reduce volume in the system by enabling earlier advice and facilitating settlement. How well this works in Practice is yet to be seen. What we do know is that delays will be inevitable and Covid-19 Case Marking is likely to become the norm. In the circumstances, it appears the Accelerated possession claims may be the ‘Cinderella’ of the situation.
