Monsolar IQ Ltd v Woden Park Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fancourt,Fancourt J |
| Judgment Date | 12 June 2020 |
| Neutral Citation | [2020] EWHC 1521 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: PT-2019-000787 |
| Date | 12 June 2020 |
[2020] EWHC 1521 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE (ChD)
Rolls Building
7 Rolls Buildings
Fetter Lane
London, EC4A 1NL
THE HON. Mr. Justice Fancourt
Case No: PT-2019-000787
Toby Watkin and Luke Wilcox (instructed by Osborne Clarke LLP) for the Claimant
Timothy Dutton QC (instructed by Geldards LLP) for the Defendant
Hearing dates: WRITTEN SUBMISSIONS ONLY
Approved Judgment
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.
THE HON. Mr Justice Fancourt
This supplementary judgment addresses a further argument raised by the Defendant and the consequential issues arising from my judgment at [2020] EWHC 1407 (Ch).
Further Argument
After handing down judgment and giving directions for consequential matters to be addressed in writing, I received an application from the Defendant's solicitors' for permission to address further argument on a substantive issue arising from my judgment. It was in these terms:
“The outcome of the case as set out in the draft judgment is based on an interpretation of the lease (“the Interpretation”) advanced by neither party. Neither party has had the opportunity to make submissions either on the Interpretation or on the effect of the Interpretation on the second limb of the Chartbrooke [sic] test.
It is permissible in these circumstances to request the opportunity to make further submissions on these points alone …”
The Claimant's solicitors also requested permission to make submissions. Accordingly, I permitted both parties to send further written submissions on the Interpretation and its effect.
The point identified related to whether it could be said to be clear what mistake had been made in the language of the Lease and therefore what “correction” was required. In fact, as I pointed out in my judgment, the Defendant had addressed no argument in its submissions to that question, preferring instead to concentrate on seeking to persuade me that it was not clear that any mistake had been made. Before I prepared my judgment, neither party had requested the opportunity to address any argument in the other's submissions.
I received further submissions from Mr Timothy Dutton QC, newly instructed on behalf of the Defendant. However, the submissions sought to argue for the first time, apparently without telling the Claimant's solicitors in advance that it was intending to do so, that there was a further possible meaning of Schedule 6 that no none had previously raised, and that for that reason it was not clear what mistake was made, and accordingly that my decision on the claim should be reversed.
Mr Watkin and Mr Wilcox on behalf of the Claimant had already sent further submissions seeking to show that, by reason of the way that the RPI operates, my conclusion on the mistake made by the parties in fact had exactly the same financial consequences as the correction for which the Claimant had contended. It seems that in the light of the solicitors' earlier correspondence they were anticipating a different argument from the Defendant.
Once the Claimant's solicitors had seen the Defendant's further submissions, they requested the opportunity to respond. Having considered the argument that Mr Dutton QC had raised, I invited them to respond.
The Defendant's new argument is that the parties might have meant to provide, by Schedule 6, that the rent should increase in line with the RPI but should not decrease on any Review Date. In other words, an “upwards only” or “ratchet effect” review clause. Not only had the Defendant not previously sought to argue that it was unclear what mistake was made in Schedule 6, but its argument on the question of whether there was a mistake at all laid much emphasis on the fact that deflation during the term of the Lease was a real possibility and that the rent could therefore go down as well as up.
The argument that an upwards only review clause was intended is therefore not only new, but a volte face in the Defendant's case, and opportunistic. Neither was it the point that the Defendant had sought permission to address. It was a new argument about the meaning of Schedule 6 that was not the Interpretation that I had reached. The reality is that the Defendant was seeking to argue, after seeing my judgment, a point that it had not previously taken.
Be that as it may, the Defendant now argues that it cannot have been clear that the mistake was the one that I identified because there was another possible meaning that the parties might have intended Schedule 6 to have. But the relevant question is not whether, divorced from the context and the other terms of the Lease, it is possible that parties in the position of the Claimant and the Defendant might have agreed an upwards only review clause. Of course they might have done so. The question is whether it is...
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Monsolar IQ Ltd v Woden Park Ltd
...AND PROPERTY COURTS OF ENGLAND AND WALES PROPERTY TRUSTS AND PROBATE LIST (ChD) Mr Justice Fancourt [2020] EWHC 1407 (Ch) and [2020] EWHC 1521 (Ch) Royal Courts of Justice Strand, London, WC2A 2LL Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' repre......