British Telecommunications Ltd v Rail Safety and Standards Board Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 27 July 2011 |
| Neutral Citation | [2011] EWHC 2909 (Ch) |
| Court | Chancery Division |
| Date | 27 July 2011 |
| Docket Number | Claim No HC-10-C-03302 |
[2011] EWHC 2909 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
Mr Robin Knowles CBE, QC
(Sitting as a Deputy Judge of the Chancery Division)
Claim No HC-10-C-03302
Mr D. Mitchell, instructed by HBJ Gateley Wareing, for the Claimant
Mr N. Taggart, instructed by Winckworth Sherwood LLP, for the Defendant
Approved JUDGMENT
(Hearing date: 7 June 2010)
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
Introduction:
The Claimant ("BT") is the landlord of property at 120 Holborn in London ("the Property"). The Superior Landlord of the Property is the Prudential Assurance Company Ltd ("Prudential"). BT and the Defendant ("RSSB") agreed the underletting to RSSB of the first and second floors of the Property by an Agreement for Lease dated 4 September 2007 ("the Agreement").
The issue in this case is the meaning of the term "Superior Landlord's Consent" in the Agreement, where it is defined as follows:
"Superior Landlord's Consent means the consent of the Superior Landlord to the grant of the Leases by way of the Licence to Underlet and to the Tenant's Works by way of the Licence for Alterations."
The Agreement included the following terms:
"2.1 Subject to the Tenant complying with its obligations under clause 2.2, the Landlord shall use reasonable endeavours to obtain the Superior Landlord's Consent as soon as reasonably practicable after the date of this Agreement.
The Tenant agrees:
(a) to provide all such reasonable assistance as may be necessary to facilitate the grant of the Superior Landlord's Consent;
(b) to join in the Licence to Underlet;
(c) that as soon as reasonably practicable after the date of this Agreement to provide such detailed drawings, plans and specifications detailing the Tenant's Works to the Landlord and the Superior Landlord as the Landlord and the Superior Landlord may require in order to properly consider the Tenant's application for consent to carry out such fit-out works;
(d) that as soon as the drawing, plans and specifications detailing the Tenant's Works have been agreed to provide as many copies of the same as the Superior Landlord and the Landlord properly require;
(e) to join in the Licence for Alterations, relating to the Tenant's Works and to reimburse the Landlord's and the Superior Landlord's proper and reasonable costs relating to the grant thereof.
Nothing in this clause shall oblige the Landlord to seek a determination that Superior Landlord's Consent has been unreasonably withheld
Nothing in this clause shall oblige the Tenant to provide any guarantee, surety, rent deposit or any other form of security whatsoever to the Landlord or to the Superior Landlord
Subject to the terms of clause 3.2, if Superior's Landlord's Consent has not been obtained by 5 October 2007 then either party may at any time thereafter serve notice in writing to the other to determine this Agreement with immediate effect but without prejudice to any right of action either party may have against the other for any antecedent breach of the obligations contained in this Agreement Provided That any notice served pursuant to this clause 3 shall be void and of no effect if the Superior Landlord's Consent shall have been granted prior to the date of service of the notice and Provided That the Tenant's obligations in clause 2.2(e) shall not determine upon determination of this Agreement under this clause.
If the Superior Landlord's Consent has not been obtained by 5 October 2007 but the Landlord has received the Superior Landlord's consent to the grant of the Leases by way of the Licence to Underlet the Tenant may [at any time up until either party has served notice to determine this Agreement in terms of clause 3.1] notify the Landlord in writing that it wishes to complete the Leases without the benefit of the Licence for Alterations and the Completion Date shall be the date five working days after the date of such notice."
Under the Agreement:
(1) "Licence for Alterations" was defined as meaning "the licence for alterations to be entered into between the Superior Landlord (2) the Landlord and (3) the Tenant which shall be in the form in Schedule 4 subject to any amendments that the Superior Landlord may require to be made as shall be approved by the Landlord and the Tenant such approval not to be unreasonably withheld or delayed."
(2) "Licence to Underlet" was defined as meaning "the licence to underlet to be entered into between (1) the Superior Landlord the Landlord and (3) the Tenant which shall be in the form in Schedule 3"
On 20 November 2007 RSSB served what purported to be a notice under Clause 3.1 of the Agreement to determine the Agreement with immediate effect.
By that date a Licence to Underlet had been executed by BT, RSSB and Prudential. As regards the Licence for Alterations:
(1) The Licence for Alterations had been executed by BT and Prudential.
(2) The Licence for Alterations had not been executed by RSSB.
(3) However the Licence for Alterations had (by 7 November 2007) been approved by RSSB, and the solicitors to RSSB had confirmed (on 7 November 2007) to the solicitors to BT that they would print out the Licence for Alterations for signature by RSSB.
(4) On 19 November 2007 the solicitors to BT had sent a further email to the solicitors to RSSB confirming that BT and Prudential were "in a position to complete the Licence for Alterations".
(5) As Counsel for RSSB confirmed to me, the only thing that remained undone was RSSB signing the Licence for Alterations: that is all that was required to complete.
In response to RSSB seeking to terminate the Agreement, BT served a notice to complete on 19 December 2007 and when RSSB failed to complete BT treated the Agreement as at an end.
BT, by Mr D. Mitchell, argues that by "Superior Landlord's Consent" the parties did not mean completion of the Licences to Underlet and for Alterations. The unilateral act of consent in principle from Prudential was sufficient; entry into the Licences as...
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