This time last year, I wrote that we were perhaps at the mid-point in the economic cycle, having endured seven years of famine, with evidence of feasting in some quarters. I will leave it to others to judge whether we are still there (if ever we were); or whether we are beginning to descend the slope.
As with years past, I take my crystal ball divinations from discussions in chambers as to who is doing what over the course of 2016 – a good basis for a survey of the property litigation market.
A developing area
In contrast to last year, what is striking is the increase in litigation concerning development work – a sure sign of activity in the market. Towards the beginning of the new year, Morgan J will give judgment in Airport Industrial GP Ltd v Heathrow Airport Ltd and AP16 Ltd. The issues include: (i) the proper approach to be taken by the court when asked to make an order for specific performance in circumstances where the contract imposes building obligations that are not framed by reference to a specification and merely require the relevant party to achieve a particular result; and (ii) whether it would be appropriate, when making an order for specific performance, to allow time beyond that needed for strict performance of the contractual obligation, so as to enable the party in breach to both comply with its contractual obligations and to extract greater value from the land.
Also in January, the High Court will hear Generator LLP v Lidl, in which the claimant alleges that the defendant is bound by a constructive trust in respect of land bought with a view to a joint venture between the parties. Such “Pallant v Morgan” trusts (see [1953] Ch 43) have assumed increased importance in recent years, and the decision in this case should cast useful light in this area.
The Court of Appeal will hear Sainsbury’s Supermarkets Ltd v Bristol Rovers (1883) Ltd, in which it will be asked to decide whether a general obligation to use all reasonable endeavours to obtain an acceptable store planning permission, and to act in good faith, overrode specific contractual provisions; or whether, as Proudman J held (see [2015] EWHC 2002 (Ch); [2015] PLSCS 218), Sainsbury’s was entitled to rely on a provision stating that it was only obliged to make a planning appeal in certain, specified circumstances, no matter how reasonable it might have been for Sainsbury’s to appeal in other circumstances.
Following their trip to the Court of Appeal last year (see [2015] EWCA Civ 43; [2015] PLSCS 38), the parties in British Overseas Bank Nominees Ltd and another v Analytical Properties Ltd and another will be back in court, this time for their trial, to determine the meaning of an obligation to provide emergency lighting certificates “as soon as practicable” in the context of a contract of sale of a shopping centre.
Good old L&T
The courts will also decide some intricate landlord and tenant disputes. EMI Group Ltd v O&H Q1 Ltd is one, concerning the correctness and effect of Lord Neuberger’s obiter dictum in K/S Victoria Street v House of Fraser (Stores Management) Ltd and others [2011] EWCA Civ 904; [2011] 2 EGLR 11 that, because of the Landlord and Tenant (Covenants) Act 1995, a lease “cannot be assigned” by the tenant to its guarantor.
There is also likely to be a resurgence in break clause cases, as parties seek to understand their rights in the light of the decision of the Supreme Court in Marks & Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd and another [2015] UKSC 72; [2015] PLSCS 341.
Leasehold enfranchisement disputes will continue unabated, given the convoluted nature of the statutory material, the amount of money at stake, and the courts’ willingness to hear appeals in this area. In a test case (Trustees of the Sloane Stanley Estate v Lagesse and Munday, Aaron v The Wellcome Trust) early in 2016, the Upper Tribunal (Lands Chamber) will be asked to rule further concerning the correct method for assessing “relativity”.
Later in the year, the Court of Appeal will consider whether a freeholder can agree terms for a new lease under the Leasehold Reform Act 1993 which binds an intermediate lessee (Howard de Walden Estates Ltd v Accordway Ltd and Kateb). And the Supreme Court will decide whether to grant permission to appeal in Jewelcraft Ltd v Pressland and another, in which the Court of Appeal held (see [2015] EWCA Civ 1111; [2015] PLSCS 300) that a shop with separate flat above was a house reasonably so called under the Leasehold Reform Act 1967.
Keeping things real
Real property disputes will also receive some attention in the appeal courts. In February in Loose v Lynn Shellfish Ltd and others (see [2014] PLSCS 184; [2014] EWCA Civ 846), the Supreme Court will examine the question whether a right of several shellfishery can extend by virtue of the doctrines of accretion and prescription to govern areas of the former seabed that have silted up.
In March, in Bennett and another v Winterburn and another (see [2015] UKUT 59 (LC); [2015] PLSCS 51), the Court of Appeal will decide whether a right to park can be acquired by prescription notwithstanding that a sign to the effect that the car park was private had been displayed throughout the prescriptive period.
In July, in Ottercroft v Scandia, the Court of Appeal is to decide a topical dispute about the court’s discretion to award an injunction instead of damages in a rights of light case, where the judge at first instance ordered an offending structure to be removed. And the proprietary estoppel dispute, Davies and another v Davies (see [2014] EWCA Civ 568; [2014] PLSCS 143), will return to the Court of Appeal to decide the appropriate level of equity.
Outlook interesting
The interaction between human rights and property rights will also receive high-level attention: in March in McDonald v McDonald, the Supreme Court will decide whether Article 8(2) of the European Convention on Human Rights has any application in the context of possession proceedings brought by a private landlord following service of a notice under section 21 of the Housing Act 1988.
And finally – law reform. We are still waiting for the government to publish a draft bill on rights to light, to take forward the Law Commission’s recommendations; we are also still waiting for news on proposals for revision of the Electronic Communications Code; and it remains to be revealed what, if any, reforms are intended for the Human Rights Act.
The cases discussed here are those in which I and members of my chambers are principally involved. There are many others. 2016 will be an interesting year.
Guy Fetherstonhaugh QC is a barrister at Falcon Chambers
