Winter had brought the heaviest snow that Holly had ever seen and, as Christmas drew nearer, the world seemed to be held in a dreamlike stillness. It had been a magical day and Holly had taken a short break from her revision to build a Snowman.
But, now, darkness was closing in and it really was time for Holly to concentrate on cases that might crop up in her law exams early next term. Glancing down as she closed the curtains on the Snowman that wore her hat and scarf in the garden below, Holly blinked. Had the Snowman just waved to her? “It’s just like that Raymond Briggs story,” she thought as she rushed to the front door, where the Snowman greeted her with a bow, before whisking her up into the moonlit sky.
Walking in the air
Holding on to the Snowman very tightly, Holly blinked furiously and wondered if she was dreaming. Was that really London sleeping below? Suddenly, the Snowman swooped low, pointing to a house in Earls Court beneath them. It looked empty. There were no Christmas lights twinkling in its windows and no wreath, trimmed with baubles and red ribbon, hanging on the door.
Why had the Snowman brought her here? Of course! He was reminding her about the fraudsters in P&P Property Ltd v Owen White & Catlin LLP and another; Dreamvar (UK) Ltd v Mishcon de Reya (a firm) and another [2018] EWCA Civ 1082; [2018] EGLR 27, who had pretended to be the owners of empty properties so that they could sell them. And then they had absconded with the proceeds of sale before their frauds were discovered, leaving the buyers’ and sellers’ solicitors to replace the stolen money and apportion the loss between them. Holly tugged on the Snowman’s arm, but it seemed that there was no time to stop. The Snowman clearly had another destination in mind.
Flying very high
As they flew through the air, Holly could not help thinking about something that had been worrying her. Are clauses in contracts prohibiting oral variations valid or not? There were too many cases and a fair bit of judicial inconsistency. At the back of her mind, Holly knew there was an answer to this question, but she just couldn’t remember what it was. The Snowman seemed to sense her frustration and they were soon flying back over the heart of London before coming to rest at a building site next to a snow-covered Marble Arch.
Thankfully, it all came flooding back. Earlier this year, a dispute at the now-demolished Marble Arch Tower had resulted in the Supreme Court deciding that “no oral modification clauses” are valid. Lord Sumption, who gave the leading judgment in MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2018] UKSC 24; [2018] EGLR 28, decided that the clauses stopped contracts being undermined informally and upheld the principle of party autonomy, since the courts were enforcing the agreement actually reached by the parties.
The Snowman was soon whisking Holly further west, stopping at a hotel outside Heathrow Airport. As if by magic, the Snowman had anticipated another of Holly’s worries – the contradictory decisions on whether a failure by an employer under a construction contract to serve a “pay less” notice meant that it could not commence an adjudication to determine the true value of the interim application in question. Some judges said the employer could. Others – leading to the rise of what had become known as “smash and grab” adjudications – said that you could not. Holly was sure that this question, and Sir Rupert Jackson’s very helpful judgment in S&T (UK) Ltd v Grove Developments Ltd [2018] EWCA Civ 2448 that the employer could commence the adjudication as to the true value, would come up in her exams.
Next, the Snowman took Holly to a very snowy Parliament Square. Peering from behind the statue of Dame Millicent Fawcett, she saw two very distinguished gentlemen having a heated argument outside the Supreme Court. Although it struck Holly as an odd time for an argument, she could hear both clearly. At issue was the question of how judges should interpret contracts. Should you consider the words used, or their true meaning? One of her lecturers had told Holly that Lords Hoffmann and Sumption had recently disagreed about this. It couldn’t be them, could it?
Across the world
The travellers pressed on. Towns and villages raced by as they headed north, but they slowed briefly above a snow-covered school playing field in Lancashire. The Snowman told Holly that it was at the centre of the dispute in R (on the application of Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs [2018] EWCA Civ 721; [2018] PLSCS 70. The Court of Appeal had ruled that the fact that land was held for educational purposes (or, in the conjoined case of R (on the application of NHS Property Services Ltd) v Surrey County Council, for healthcare purposes) did not prevent it from being registered as a town or village green. But the decisions were being appealed to the Supreme Court, which they had visited earlier – and may be ones to watch in 2019.
On and on they raced – all the way to the North Pole. Could that really be Santa below them? It was! And he had presents for them both. As Holly admired the snow-globe that the Snowman was cradling so lovingly in his arms, the house and gardens in the snowstorm inside the glass reminded her of Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd and another [2018] UKSC 57; [2018] PLSCS 198. The house looked just like the mansion near Canterbury that had been turned into a leisure complex, with recreational facilities both inside and out. And they were now subject to a new species of easement, thanks to the Supreme Court decision in that case. Holly raised enquiring eyes towards the Snowman, who winked!
Clocks do not strike 13
Waving farewell to Santa, the travellers retraced their steps, flying through the midnight skies in the direction of London. As they soared over Chelsea, Holly excitedly unwrapped Santa’s present to her and was perplexed to find a scientific book on relativity. Had she not told Santa that she was studying law?
Holly smiled. Chelsea! Relativity! Santa had been listening. He had reminded her of the Court of Appeal decision in Mundy v Trustees of Sloane Stanley Estate [2018] EWCA Civ 35; [2018] EGLR 7, rejecting the Parthenia model of relativity in valuing new leases. The Upper Tribunal (Lands Chamber) had correctly categorised it as “the clock which strikes 13”. The impossible result suggested was that the value of a lease sold without the rights afforded by the Leasehold Reform, Housing and Urban Development Act 1993 was higher than a lease sold with those rights.
As they travelled westwards, the Snowman told Holly to use their trip as a “mind map” for her revision. Through the falling snow, Holly could make out Brunel’s railway below them. She was glad to be flying in the air – where there were no snow delays at all!
Mind map! Holly thought hard. Clock… time… 18-month time limit… West Country – Westmark (Lettings) Ltd v Peddle and others [2017] UKUT 449 (LC); [2018] EGLR 5. It worked! In December 2017, the Upper Tribunal found relevant costs were incurred when an intermediate landlord received a demand for payment from its own landlord. Successive 18-month time limits applied to each demand made in the contractual chain.
Homeward bound
As she and the Snowman flew to Bristol’s rhythmic pulse, Holly began to tire. Thoughts of her bijou attic bedroom came to mind. When Holly signed her tenancy agreement in the summer, it was a licensing condition that her room could be used only as sleeping accommodation by a student in full-time education. Initially, the council had not wanted it to be used as sleeping accommodation at all. But her landlord, Mr Frost, had appealed to the First-tier Tribunal, and won, much to the council’s dismay.
Christmas came early for Mr Frost when his letting agent told him that a similar condition had been found lawful in Nottingham City Council v Parr and another [2018] UKSC 51; [2018] EGLR 46. The Supreme Court considered the purpose of the legislative scheme and found that such a condition did not remove shared student accommodation from the ambit of the regulatory licensing scheme. Nor did it permit occupation at lower standards for students.
As they landed in her garden, Holly thought sleepily that Mr Frost must have been extremely good this year. He had also successfully appealed a condition requiring him to have a valid electrical installation report for the duration of his licence. Relying on Brown and another v Hyndburn Borough Council [2018] EWCA Civ 242; [2018] PLSCS 33, he had argued successfully that such a condition fell outside the scope of section 90 of the Housing Act 2004 to regulate the “management, use and occupation” of a dwelling.
Believe your eyes
When she opened her eyes the next morning, Holly wondered if she had dreamt her flight through the frozen skies the night before.
Leaping out of bed, she raced outside. Where, oh where, was the Snowman? The sun had come out and the Snowman had melted, leaving only his hat and scarf behind him. Holly gazed at the pile of snow at her feet, feeling inexplicably sad.
Then, pushing her hands into her dressing gown pockets, Holly discovered a book. She could scarcely believe her eyes. It was Santa’s book on relativity! And, neatly tucked inside it, Holly found a mind map to help with her revision. Christmas had come early this year for Holly, too.
Elizabeth Dwomoh is a barrister at Lamb Chambers, Stuart Pemble is a partner at Mills & Reeve and Allyson Colby is a property law consultant