Wigan Borough Council v Scullindale Global Ltd
| Jurisdiction | England & Wales |
| Judge | Hodge |
| Judgment Date | 01 April 2021 |
| Neutral Citation | [2021] EWHC 779 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: PT-2019-MAN-000132 |
| Date | 01 April 2021 |
[2021] EWHC 779 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
HIS HONOUR JUDGE Hodge QC
Sitting as a Judge of the High Court
Case No: PT-2019-MAN-000132
Mr Martin Hutchings QC (instructed by DWF Law LLP, Leeds) for the Claimant
Mr Andrew Latimer (instructed by Jolliffe & Co LLP, Chester) for the Defendants
The following cases are referred to in the judgment:
Arnold v Britton [2015] UKSC 36, [2015] AC 1619
BDW Trading Ltd v JM Rowe (Investments) Ltd [2011] EWCA Civ 548
Blue Chip Hotels Ltd v Revenue & Customs Commissioners [2017] UKUT 204 (TCC)
Borwick Development Solutions Ltd v Clear Water Fisheries Ltd [2019] EWHC 2272 (Ch), [2020] 1 WLR 599, reversed [2020] EWCA Civ 578, [2020] 3 WLR 755
Buckland v Papillon (1866) LR Ch App 67
Cooke v Scotfield Ltd [2000] All ER (D) 532
Duval v 11–13 Randolph Crescent Ltd [2020] UKSC 18, [2020] AC 845
Eminence Property Developments Ltd v Heaney [2010] EWCA Civ 1168, [2010] 3 EGLR 165
Eurobank Ergasias SA v Kalliroi Navigation Co Ltd [2015] EWHC 2377 (Comm)
Fuller v Kitzing [2017] EWHC 810 (Ch), [2017] (Ch) 485
Hersey v Giblett (1854) 18 Beav 174
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896
Mears Ltd v Costplan Services (South East) Ltd [2019] EWCA Civ 502, [2019] 4 WLR 55
Moss v Barton (1866) LR 1 Eq 474
Proxima GR Properties Ltd v Spencer [2017] UKUT 450 (LC), [2018] L & T R 9
Rockferry Waterfront Trust v Pennistone Holdings Limited [2020] EWHC 3007 (Ch)
Satyam Enterprises Ltd v Burton [2021] EWCA Civ 287
Siemens Hearing Instruments Ltd v Friends Life Ltd [2014] EWCA Civ 382, [2014] 2 P & C R 5
Swedac Limited v Magnet & Southerns Plc [1989] 1 FSR 243 United Scientific Holdings Ltd v Burnley BC [1978] AC 904
The following additional cases were cited to the court or were referred to in the skeleton arguments:
Active Media Services Inc v Burmester, Duncker & Joly Gmbh [2021] EWHC 232 (Comm)
Beazer Homes Ltd v Durham County Council [2010] EWCA Civ 1175
Ben Cleuch Estates Ltd v Scottish Enterprise [2008] CSIH 1, [2008] SC 252
Berkeley Community Villages Ltd v Pullen [2007] EWHC 1330 (Ch), [2007] 3 EGLR 101
Biondi v Kirklington & Piccadilly Estates Ltd [1947] 2 All ER 59
Delta Petroleum (Caribbean) Ltd v British Virgin Islands Electricity Corporation [2020] UKPC 23
First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] BCLC 1409
French v Elliott [1960] 1 WLR 40
Kelly v Fraser [2012] UKPC 25, [2013] 1 AC 450
Mackay v Dick & Stevenson (1881) 6 App Cas 251
Marks & Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2015] UKSC 72, [2016] AC 742
Motor Oil Hellas (Corinth) Refineries SA v Shipping Corporation of India (The Kanchenjunga) [1990] 1 Lloyds Rep 391
Multon v Cordell [1986] 1 EGLR 44
Sainsbury's Supermarkets Ltd v Olympia Homes Ltd [2005] EWHC 1235 (Ch), [2006] 1 P & C R 17
TFS Stores Ltd v The Designer Retail Outlet Centres (Mansfield) General Partner Ltd [2019] EWHC 1363 (Ch), [2019] Bus LR 1970
Long lease of hotel — Construction — Implication of terms — Landlord's break clause — Whether validly exercised — Completion of development — Time — Prevention principle — Waiver — Estoppel — Valuation — Mesne profits — Repudiation of lease
Approved Judgment
Hearing dates: 22–26 February, 1–5, 10, 11 March 2021
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.
HIS HONOUR JUDGE Hodge QC
JUDGE Hodge QC:
This is my reserved judgment on the trial of a claim issued by the claimant, Wigan Borough Council ( the Council), on 7 December 2019 against the defendants, Scullindale Global Limited ( Scullindale), a company incorporated in the British Virgin Islands, Mr Craig Baker, resident in England, and Mr Amir Madani, resident in Dubai. There is also a counterclaim by Scullindale. The claimant was ably represented by Mr Martin Hutchings QC and the defendants were equally ably represented by Mr Andrew Latimer (of counsel). The trial, originally listed to last ten days, took place entirely remotely by Teams over 12 court days, between Monday 22 to Friday 26 February, between Monday 1 to Friday 5 March and on Wednesday 10 and Thursday 11 March 2021. It followed on from a Pre-Trial Review which I had conducted (also remotely by Teams) on 25 January 2021 and a site visit and view, both external and internal, of Haigh Hall and the surrounding Country Park, which I had undertaken in the presence of both counsel over some 2 1/2 hours on Saturday 20 February.
The remote trial had the advantage that it was more accessible to members of the public with access to an internet connection, and also to the local press, than it would have been had it taken place in a traditional court room in the Manchester Civil Justice Centre. However, at times there were difficulties in sustaining a sufficiently stable audio-visual connection. There were also difficulties in navigating one's way through the growing number of electronic bundles of documents. During the course of Day 7, concerns were raised about the potential use of mobile phones during the hearing. Although the court was satisfied that there had been no interference with the witness evidence, and it recognises that some degree of mobile phone contact (at least by text) may be necessary when the solicitor and the witness are at the same location to enable counsel to seek and to receive instructions, this is more difficult to police outside the formal court setting, and it can give rise to some concerns. Above all, there was lacking the immediacy, the spontaneity and the benefits of personal interaction and greater visibility that are afforded when all the participants in the trial are present in the same physical forensic space. This was far from the first witness action that I have conducted remotely during this pandemic; but it brought home to me even more clearly than previous trials the limitations of that forensic medium. I am satisfied that conducting this trial remotely did not impair the ability of the court to arrive at a just determination. When the technology works well — and that can be variable – a remote trial can be a useful “work around” in the face of the Coronavirus pandemic, and it is certainly better than no trial at all, or justice delayed; but in my experience it is clearly inferior to a face to face trial.
This judgment is divided into eight sections as follows: I: Introduction and overview II: The trial and the witnesses III: The Lease: its true meaning and effect IV: The validity of the break notice V: Valuation issues VI: Damages and mesne profits VII: The counterclaim VIII: Conclusion.
During the course of the trial a great many issues were raised which, as the trial has progressed and developed, seemed to me to be of little, if any, real relevance to the issues I need to decide. The fact that I have not mentioned them in this judgment does not mean that they have been overlooked. I have limited my findings of fact to those matters which I consider properly fall for determination, and those additional matters of disputed fact which any appeal court may need to consider if it were to differ from my conclusions on matters of law. Likewise, I have not found it necessary to refer to all of the authorities that were cited to me: some of them turned on the precise wording of the particular lease or other written instrument or their own particular facts whilst others offered no novel statement of legal principle. I have omitted any reference to authorities cited in support of non-controversial propositions in practitioners' texts. In doing so, I have been guided by the wise observation of Hoffmann LJ (as he then was), when giving a talk on appellate advocacy many years ago in the Inner Temple, that the only cases one really needs to concern oneself with are those that are wrongly decided because all other cases should be consistent with underlying legal principles. A judgment of the Business and Property Courts does not necessarily benefit from being flavoured by a generous sprinkling of superfluous case law authority like the hundreds and thousands on the icing of a child's cake.
I: Introduction and overview
As I have previously observed (in Rockferry Waterfront Trust v Pennistone Holdings Limited [2020] EWHC 3007 (Ch)), one of the particular pleasures of sitting as a judge of the Business and Property Courts in Liverpool and Manchester is the insight it has afforded me into the sporting and leisure activities of the citizens of the north of this country. In Fuller v Kitzing [2017] EWHC 810 (Ch), reported at [2017] (Ch) 485, I had to deal with the nature, and the incidents, of the right to shoot game birds on an estate in Yorkshire. In Borwick Development Solutions Ltd v Clear Water Fisheries Ltd [2019] EWHC 2272 (Ch), reported at [2020] 1 WLR 599 but reversed on appeal (see [2020] EWCA Civ 578, [2020] 3 WLR 755), I had to determine the legal nature of the property in stocks of fish contained within a commercial fishery. In the Rockferry case, I was concerned with the title to a slipway used to launch sailing boats into the River Mersey by members of the Royal Mersey Yacht Club....
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