It was the final countdown towards Christmas and London town was in festive mood. The tree on Trafalgar Square was beautifully decorated and the lights in town were twinkling away.
At 10 Downing Street, David, the prime minister, was feeling contemplative, not least about his new relationship with Natalie. They were getting to know each other better, and he was discovering her previously hidden passion for construction and property law. Natalie never hesitated to raise whatever points of case law were on her mind when they had a quiet moment together.
Clad the walls
There were two very important cases for Natalie. First, was the courts’ response to cladding claims. In Mulalley & Co Ltd v Martlet Homes Ltd [2022] EWCA Civ 32; [2022] PLSCS 16, the Court of Appeal, in a judgment that Lord Justice Coulson acknowledged “may be of some significance to the construction industry”, allowed Martlet to amend its pleadings outside the normal limitation period to include allegations of design failings, as well as poor workmanship. Natalie stressed that this was likely to help numerous families across the country desperate to get compensation for the defective cladding on their apartments.
When the substantive case was heard at first instance (Martlet Homes Ltd v Mulalley & Co Ltd [2022] EWHC 1813 (TCC), judge Stephen Davies held Mulalley liable for the cost of removing and replacing the cladding (and not the lesser cost of just repairing it) as well as maintaining a waking watch for the period before the cladding was replaced.
Natalie explained this was because the judge held that Mulalley was responsible for specifying the cladding as well as its installation. Had it just been responsible for the installation, the judge would have limited damages to the cost of repair rather than replacement.
Goodwill to all
The other case grabbing Natalie’s festive attention was the Court of Appeal’s decision in Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) LLP [2022] EWCA Civ 823 that settled a relatively contentious issue arising from the Housing Grants, Construction and Regeneration Act 1996: was a collateral warranty granted to a third-party beneficiary by one of the construction team “an agreement for the carrying out of construction operations” (in other words, a construction contract) for the purposes of section 104(1) of that Act?
If it was, or could be, then the parties to it could refer any dispute under the warranty to adjudication; a particular time and cost saving for a beneficiary looking to bring a claim. Drawing considerable comfort from Parkwood Leisure Ltd v Laing O’Rourke Wales and West Ltd [2013] EWHC 2665 (TCC), and not without some doubt from various commentators, the Court of Appeal held that the warranty in question was a construction contract. In particular, where the warranty contains covenants regarding the ongoing carrying out of construction operations, as opposed to “a past or static state of affairs”, it was most likely that the Act would apply and adjudication provisions would be deemed to be incorporated in to the warranty if none existed.
With all the problems in the world David had to deal with, he was amazed that Father Christmas had given him the gift of Natalie. If only he could tell her what she meant to him…
Meanwhile, not far from that famous seat of power, Billy Mack and Joe were bopping along Waterloo Bridge.
Comms are all around us
Billy was busy drafting his end-of-year song, which typically reviewed the commercial landscape of the past 12 months, and turned to his friend. “You know, Joe,” Billy said, “2022 has been quite a year for the Electronic Communications Code. Overall, the focus has been on its purpose – encouraging the rollout of new digital infrastructure across the country.”
The big decision of the year was the Supreme Court’s pronouncement in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd and conjoined appeals [2022] UKSC 18; [2022] EGLR 28, which established that operators with apparatus on site can seek new rights during the term of a subsisting agreement because they are not “occupiers” under paragraph 9.
There have also been a number of decisions on new agreements. On Tower UK Ltd v JH & FW Green Ltd [2021] EWCA Civ 1858; [2022] EGLR 3 – while technically a late 2021 decision – had a major impact in 2022. Paragraph 17 of the Code – which allows operators to upgrade and share apparatus provided that changes do not adversely impact on its appearance and there is no additional burden on the landlord – is a floor not a ceiling for such rights. Where justified, operators have secured extensive upgrading and sharing rights.
As for rent under a Code agreement, EE Ltd and another v Stephenson and another [2022] UKUT 180 (LC); [2022] EGLR 38 confirmed the “no-network” assumption means the comparable method for determining rent will not wash. Parties must adopt the structured approach – assess the most valuable non-operator use for the site and make allowances for any additional benefits conferred on the tenant or any greater adverse effect on the landlord.
“So,” replied Joe. “Comms are all around us… They’re everywhere we go!”
“Good line,” replied Billy, scribbling it down, “but that’s not all. We’ve had important decisions on pandemic rents and notices to quit.”
Both of which are very important but somewhat harder to make scan.
No fairy-tale ending
In Bank of New York Mellon (International) Ltd v Cine-UK Ltd; London Trocadero (2015) LLP v Picturehouse Cinemas Ltd and others [2022] EWCA Civ 1021; [2022] EGLR 34, the tenants – clearly in the throes of an epiphany – argued that government restrictions imposed by the pandemic caused a failure of basis so they did not need to pay rent for those periods.
The Court of Appeal was not having any of it – the leases contained a carefully worked out regime for the allocation of risk which such an argument would subvert. “Fundamental principles prevail!” Billy exclaimed.
And he explained that, in OG Thomas Amaethyddiaeth Cyf v Turner and others [2022] EWCA Civ 1446; [2022] PLSCS 179, the Court of Appeal confirmed that if you are going to address a notice to quit to someone, that person must be the correct person, otherwise the notice is invalid.
“Seems obvious,” muttered Joe, as Billy continued to note fresh lyrics:
“There’s no beginning,
There’ll be no end,
Cuz on the law,
You can depend.”
But Billy’s favourite was Guest and another v Guest [2022] UKSC 27; [2022] PLSCS 169, where the Supreme Court established a test for a proprietary estoppel remedy. If going back on the promise is unconscionable, then it is simplest to enforce the promise with adjustments to offset any disproportionality and for early receipt.
“So, if you really love me, C’mon and let it show?” offered Joe.
“Fantastic!” enthused Billy. “It’s gonna be a festive triumph of a song!”
All you need is…
Elsewhere, Sam was busy trying to attract the attention of his fellow student: “Hello Joanna? Joanna!”
“Sorry, Sam, I didn’t hear you, I had my pods in.”
“What are you listening to?”
“Lynden David Hall’s rendition of All You Need is Love.’”
“I haven’t heard it.”
“Oh, it’s pretty sweet!”
“Where are you heading?”
“To the library. It’s that wonderful time of the year…”
“Christmas?”
“Exams!”
“Oh, yeah, of course!”
“I’m revising for my landlord and tenant law module.”
“I bet there’s not much love going on there,” said Sam. Joanna smiled. “I don’t know, Sam… I suppose that depends on whether you are a landlord or a tenant.”
She offered the example of FirstPort Property Services Ltd v Settlers Court RTM Co Ltd and others [2022] UKSC 1; [2022] PLSCS 5, where the Supreme Court found that the right to manage conferred on a right to manage company was limited to the management of its sole block, together with any appurtenant facilities that were used exclusively by the tenants of the flats within the block.
“I see,” said Sam. “Like drinking some lovely mulled wine, that decision must have given landlords and management companies a warm glow.”
“Exactly”, said Joanna. “I never knew you had an interest in law, Sam?”
“Um, I kinda had a free period a while back and dropped into a law lecture. I saw you sitting a couple of rows in front of me. I was intrigued.”
Smiling shyly, she replied: “By the lecture or…?”
But what had really held Joanna’s attention was the decision of the Court of Appeal in Northwood (Solihull) Ltd v Fearn and others [2022] EWCA Civ 40; [2022] EGLR 12.
The issues in that case concerned whether a notice served under section 8 of the Housing Act 1988 could be signed by an agent and whether a confirmatory certificate given in relation to the prescribed information required under section 213 of the Housing Act 2004 was invalid if a corporate landlord failed to authenticate the document in the manner required by section 44 of the Companies Act 2004.
The Court of Appeal found that a landlord’s agent could sign a notice given on behalf of the landlord under section 8 of the 1988 Act. The prescribed form for such a notice expressly permitted it to be signed by an agent on behalf of the landlord.
As for the signing of the confirmatory certificate, unless a statutory provision expressly required a personal signature, a person was generally treated as having signed a document if it was signed on their behalf by an agent and with his authority. None of the applicable statutory provisions required the confirmatory certificate to be signed by the landlord only.
“Surely, Joanna,” Sam quipped, “this decision makes the issue of the execution of documents a lot less painful than stepping on pine needles from your Christmas tree?”
“Hahaha, yes it does, Sam,” Joanna laughed. “And so does the clarity provided by the decision of the Court of Appeal in R (on the application of Kalonga) v Croydon London Borough Council [2022] EWCA Civ 670; [2022] PLSCS 79. There’s no longer any ambiguity, under the Housing Act 1985 – a local authority cannot accept a request for a review of a decision to bring a flexible tenancy to an end once the 21-day time limit for making such a request under section 107E has expired.”
“So, timing is everything, Joanna?”
“Yes, Sam, just like love, actually.”
Louise Clark is a property law consultant and mediator; Elizabeth Dwomoh is a barrister at Lamb Chambers; and Stuart Pemble is a partner at Mills & Reeve
