作者
Stephen Burke

Stephen Burke

高级律师

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作者
Stephen Burke

Stephen Burke

高级律师

Read More

2023年1月19日

RED alert - January 2023 – 1 / 5 观点

Arbitration in action again

Welcome to the first of our RED Alerts of 2023.

Featured in this month's update:


Further to our previous analysis of arbitration awards,  there are now (at the time of writing) 10 published awards made by Falcon Chambers Arbitration since the arbitration scheme created by the Commercial Rent (Coronavirus) Act 2022 (the Act) came into effect.  We have examined the 4 latest awards and set out the takeaway points.

Awards

TPIF (Portfolio No.1 GP) LLP TPIF (Portfolio No.1) Nominee Limited and Nuffield Health

  • A landlord's proposal for the tenant to pay the entirety of its arrears without deferment constitutes a valid proposal for the purposes of the Act.
  • The tenant did not engage in the arbitration process and the arbitrator determined that the tenant should pay the debt in its entirety, further interest that had accrued and reimburse the landlord for the arbitrator's costs.
Total arrears Landlord proposal Tenant proposal Award
£585,248.29 Pay arrears in full without delay. No proposal made. Pay £585,249.29 immediately plus further interest.

Hanbury Print.com Limited and Serge and Vivienne Primack
  • Settlement proposals made in a letter of notification prior to a referral to arbitration cannot be relied upon as a formal proposal pursuant to section 11 of the Act Consequently, it was determined that no formal proposal had been made.
  • As no formal proposal had been made, it was further held that a referral had not been properly made in accordance with the Act.
  • As a result, the tenant's reference to arbitration was dismissed and the relevant arrears became unprotected.

The Entertainer (Amersham) Limited and British Overseas Bank Nominees Limited and WGTC Nominees Limited

  • The tenant had already paid 50% of rent payable during the protected period and requested further relief (the extent of which is unclear from the award).
  • The arbitrator concluded that the tenant's financial information evidenced that it could meet its contractual liabilities and pay the arrears in full.
  • An arbitrator is required to have regard to the tenant's business as a whole and not just a specific store.
Total arrears Landlord proposal Tenant proposal Award
£32,581.33 Pay arrears in full immediately. Unclear. Pay £32,581.33 immediately ie 100% of the total arrears.

Our comment

There have been fewer arbitration awards than initially envisaged and the deadline to refer a dispute for arbitration under the Act elapsed on 23 September 2022.

These latest awards demonstrate that parties should engage in the process and comply with the procedural requirements in order to maximise their chance of obtaining a favourable outcome.  It is also useful to note that it is undisputable that it is the tenant's business in its entirety which is relevant and not just a specific store.

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