Mount Wellington Mine Ltd v Renewable Energy Co-Operative Ltd
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 07 June 2021 |
| Neutral Citation | [2021] EWHC 1486 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: BL-2020-BRS-000027 |
| Date | 07 June 2021 |
[2021] EWHC 1486 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
BUSINESS LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: BL-2020-BRS-000027
Tim Pullen (instructed by Direct Access) for the Claimant
Edward Ross (instructed by Direct Access) for the Defendant
Arbitration claim dealt with on written submissions, without a hearing
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.
Introduction
This is my judgment on an arbitration claim brought pursuant to section 67 of the Arbitration Act 1996, dealing with an arbitration of disputes arising out of a lease. The present claimant was the respondent in the arbitration and the landlord in relation to the lease. The defendant was the applicant in the arbitration and (claims to be) the tenant under the lease. As will be obvious to anyone familiar with the Arbitration Act 1996, this claim, being brought under section 67, concerns a challenge to the jurisdiction of the arbitrator, rather than in relation to the merits of a substantive arbitration award.
The present claim is complicated by the changing sides in the various proceedings that have taken place or are taking place between the parties. To make things simpler, I shall generally refer to the present claimant as MWML and to the present defendant as REC Soc (or sometimes just “the society”), to distinguish it from a previous legal entity which was a limited company of the same name, which I shall call REC Co. The claim form was issued on 22 December 2020, by MWML acting through its director Richard Freeborn. It was supported by a witness statement made by Mr Freeborn dated the same date. It is opposed by the witness statement of Tim Nicholson, director of REC Soc, dated 15 February 2021. Mr Freeborn has made a second witness statement dated 25 April 2021. Each of these witness statements has exhibits.
The parties have agreed a bundle, which I have considered, together with written submissions by counsel. In this judgment, I refer from time to time to the page in the bundle where a particular document is to be found, by including it in square brackets. (I mention here that the bundle is not organised chronologically, and apparently does not contain a number of documents which I would have expected it to contain, but I proceed on the basis of what the parties have chosen to put in front of me.) On the proposal and agreement of the parties, the matter was dealt with by me on paper, rather than at an oral hearing. I have not therefore heard any oral evidence.
Background
Because this is a challenge to the arbitrator's jurisdiction, I am not deciding any of the underlying facts in dispute. That is for another tribunal (whether the arbitrator or a court) to decide hereafter. I am concerned only with the question of jurisdiction. For present purposes therefore, I need only say the following. MWML was and is the freehold owner of an office building, called the Slinky Building, at the site of Mount Wellington Mine, at Fernsplatt on the outskirts of Truro in Cornwall. There was some kind of agreement between MWML and REC Co, a company limited by guarantee, in early 2012, to grant the latter a lease for a term of 25 years. (REC Co was exempt from using the word “Limited” in its company name.) It was then run by a Mr Abraham Cambridge. The lease was apparently intended to demise the airspace above the building to a height of 600 mm, so that photo-voltaic panels could be placed there, and solar energy collected and exploited.
The lease
A copy of the lease document is in evidence, and bears two different dates. The date of 26 January 2021 appears next to the signatures of the director and secretary of REC Co on the signature page, but the date of 18 February 2021 appears in the “Particulars” of the lease at the beginning of the document. I should say that MWML argued in the arbitration that the lease was invalid for numerous defects of form, but the arbitrator held against this submission, and I am not now concerned with that.
For present purposes, the relevant clauses of the lease are the following:
“20 GOVERNING LAW AND JURISDICTION
20.1. This lease and any dispute or claim arising out of or in connection with it or its subject matter or formation (including noncontractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
20.2. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this lease or its subject matter or formation (including noncontractual disputes or claims).
[…]
22 DISPUTE RESOLUTION PROCEDURE
Any disputed matter, including any failure to agree on a new basic rent, referred to arbitration under this lease is to be decided by arbitration under Part 1 of the Arbitration Act 1996 by a single arbitrator appointed by the parties to the dispute. If they do not agree on that appointment, the then president of the Royal Institution of Chartered Surveyors may appoint the arbitrator at the request of any party.
[…]
24 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this lease shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.”
The intended consideration for the lease was apparently a combination of rent payments and free use (but not storage) of the electricity produced by the solar panels. MWML complains in the arbitration that it never received either. It says in evidence in this case that it was willing to allow REC Co to put solar panels on the roof provided that it also occupied offices in the building underneath. It is said that this occurred through a separate arrangement, apparently a sublease with another tenant called Kensa Engineering Ltd, with which again I am not concerned. It is not clear from the papers before me when the installation of panels on the roof took place, though it appears to have been done by December 2011, when REC Co made an application for a ‘Feed In Tariff’ account to British Gas, and MWML wrote a letter to REC Co. The exact date does not matter for present purposes. But it is said that REC Co needed a lease of roof space in order to benefit from the so-called Feed-in Tariff for electricity supplied to the National Grid. MWML had to persuade its mortgagee to allow the grant of a lease of roof space, but succeeded in doing so.
I note in passing that REC Co created a charge in favour of Industrial Common Ownership Fund plc on 6 September 2011, which was registered on 13 September 2011 [274].
The conversion from company to society
It then appears that at some point during 2014 REC Co moved out of the offices subleased in the building. MWML ascribes this to its having experienced some financial difficulties. Whether that is correct or not does not matter for present purposes. But the direction of the company seems to have been taken over by a Mr Tim Nicholson, who formed the idea of converting the company into a registered society under the new Co-Operative and Community Benefit Societies Act 2014. REC Co converted from a company limited by guarantee to a co-operative society by special resolution passed on 8 August 2014, under the 2014 Act, section 115 (which came into force on 1 August of that year). The Financial Conduct Authority registered it as a registered society on 29 September 2014. I shall come back to the relevant statutory provisions and the conversion process later. Thereafter, the new registered society (REC Soc) claimed to be the tenant under the disputed lease.
Again, I note in passing that the newly registered society created a charge in favour of Co-Operative Loan Fund Ltd on 3 October 2014 [280]–[294], which was registered on 15 October 2014 [279]
In May 2015 there was an email correspondence between the parties [63]–[65], in which REC Soc confirmed the details of its conversion from a limited company and sought access to the roof in order to investigate a suggested roof leak. MWML (the lessor) denied receiving any information about the conversion, but in any event claimed that the lease had “expired last October when the company closed”. In July and August 2015 there was further email correspondence between the parties [70]–[71], in which REC Soc repeated its view that the lease was still valid and enforceable, but it appears that MWML was maintaining its position to the contrary.
The arbitration
The arbitration was originally commenced by an application by REC Soc to the RICS for the appointment of an arbitrator dated 19 August 2016, but not apparently sent until 19 September 2016. It states the dispute between the parties as follows [255]:
“The respondent [MWML] disputes the validity of a roof lease between the parties for the following reasons: (1) because the applicant [REC Soc] vacated office premises that were subject to a separate lease and (2) because the applicant converted from a company to a co-operative society. They also allege that the applicant damaged the roof of the building during the installation of the solar photovoltaic (PV) system. The respondent applied to British Gas to transfer the feed in tariff account from the applicant to the respondent and has refused access for the applicant to read the meter...
To continue reading
Request your trial
-
Jew v Wetherell
...Asset Management LLP v Seddon [2016] EWHC 2615 (Comm) at [15]; endorsed in Mount Wellington Mine Ltd v Renewable Energy Co-operative [2021] EWHC 1486 (Ch) at Similarly Ovlas Trading SA v Strand (London) Ltd [2009] EWCA Civ 250 at [28]. Comberg v Vivopower International Services Ltd [2020] E......
-
Conversions Between Registered Societies And Companies
...the long-held view of many society practitioners, in the case of Mount Wellington Mine Ltd v Renewable Energy Co-operative Ltd [2021] EWHC 1486. In this dispute regarding a lease, the court considered whether a company which had converted into a society under the CCBSA had become a differen......