The legal cases set to shape 2021

Well, one thing I certainly didn’t see coming when I wrote this column last year was the destruction of swathes of our real property economy as a result of the lockdowns and other restrictions on our lives introduced by the government to combat the coronavirus. Some of the consequential effects are beginning to work their way through our courts, and should manifest themselves in judgments in 2021. In parallel, the government’s attempts to prod the economy into action through infrastructure projects should also keep the courts busy. And on top of all this activity, there is of course plenty of business as usual. In the usual way, I set out the results of my discussions in chambers as to who will be doing what over the course of 2021. As always, that seems to me to be a pretty good basis for a survey of the property litigation market. The results range across the whole real estate field – from defences to rent claims, to infrastructure disputes, through restrictive covenants, rights of light and telecoms. Covid and all that Given the way it has dominated the agenda this year, it seems appropriate to deal first with what is likely to happen with regard to that lifeblood of the commercial property market: rents. Early on, as rental income streams dried, the government legislated to prevent landlords exercising their usual remedies to enforce payment. There was, however, no bar on ordinary rent actions – and some of these have now reached the courts and will play out in 2021. The defences raised include frustration, various implied terms and (in those cases where landlords have been able to obtain insurance) the availability of insurance against loss of rent. A number of such cases were heard together in a summary judgment application at the end of the year, and judgment is expected early in 2021. So too with business tenancy renewals. Not only are tenants asserting that the rents payable should be rock bottom, in the absence of evidence of market demand, but they also seek the inclusion of what may come to be called “Covid clauses”: special provisions exculpating the tenant from payment of rent and performance of its repairing covenant in circumstances where it is not able to use or occupy its premises. At least one such case has been listed for hearing in March 2021, while another, Commerz v WH Smith, was heard in Winchester County Court in late November, with arguments both over the terms of a Covid rent-suspension clause, and over the level of the rent in times of Covid. Enough Covid already. Life goes on, and there are actually tenants who see their advantage in continued trading, notwithstanding the crisis. One such is the tenant in TFS Stores Ltd v Designer Retail Outlet Centres and others [2019] EWHC 1363 (Ch); [2019] EGLR 32. I prophesied last year that this dispute would engage the attention of the Court of Appeal on the question whether contracting out notices were properly drafted. I got that wrong too – but only because the tenant managed to persuade the Court of Appeal during lockdown that the hearing could not proceed because of the legislative restrictions on proceedings against tenants ([2020] EWCA Civ 833; [2020] EGLR 31). As a result, the substantive hearing is now due to take place on 29 April 2021. Telecoms Last year, my matchless clairvoyant skills led me to assert that there were a number of issues under the Electronic Communications Code that were likely to trouble the higher level courts in 2020. The best efforts of practitioners in this field have curiously not restored peace to the world of masts and rooftops. So 2021 will see a bumper crop of telecoms cases, particularly in the appellate Courts. First, in Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd and another [2019] UKUT 338 (LC); [2020] EGLR 2, the Court of Appeal will in January consider the interaction between the Code and the Landlord and Tenant Act 1954 on the question of what routes are open to an operator seeking to renew its agreement. Secondly, in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates [2019] EWCA Civ 1755; [2019] PLSCS 201, the Supreme Court will deal with the question who is the “occupier” for the purposes of the Code. Thirdly, the question of what is a “subsisting agreement” for the purposes of the transitional provisions in Schedule 2 of the Digital Economy Act 2017 (in particular whether a tenancy at will arising on expiry of a written agreement qualifies) will be dealt with by the Court of Appeal in Arqiva Services Ltd v AP Wireless II (UK) Ltd [2020] UKUT 195 (LC); [2020] PLSCS 127 on 11 and 12 May 2021. Fourthly, next year will decide the fate of the application for permission for the leapfrog appeal to the Supreme Court in Arqiva on the question whether an operator can circumvent the result in Compton Beauchamp by applying under paragraph 27 of the Code. Quite apart from all this appellate activity, the Upper Tribunal (Lands Chamber) is also set to hear a number of other Code disputes this coming year. Development issues The incidence of the wretched virus has seemingly not inhibited the desires of those in a small and crowded island to maximise development value, either by building on plots of land here and there, or by installing infrastructure to boost the value of what is there. And all this leads to conflict over property rights between those who seek to conserve what is there and those who wish to exploit it. Leading the pack for sheer volume of litigation will be disputes to do with the construction of HS2 Phase 1, which is now well under way. This involves over 50 viaducts, 70 cuttings, over 150 bridges, 64 miles of tunnelling, 200 construction sites, and, in all, over 140 miles of new railway. Businesses are being invited to bid for £12bn worth of HS2 contracts. Practically all of this will take place on land that has been compulsorily acquired. Thousands of property owners, occupiers, farmers, tenants, and business people have been displaced, and are having their lives turned upside down. While there has been a dribble of cases before the courts and the Upper Tribunal so far, a torrent of claims and disputes is expected in the next couple of years. Turning to restrictive covenants, the decision of the Supreme Court in Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd [2020] UKSC 45; [2020] PLSCS 201 that a restrictive covenant should not be modified because of the conduct of the developer has left the way open to a yet further possible stage in the proceedings: should the offending buildings be demolished, or should the developers instead have to pay damages in lieu of an injunction? This may afford the court a fascinating opportunity to decide how it is to treat cynical and deliberate contract breakers in the light of the Supreme Court’s judgment. A claim for an injunction restraining a different form of alleged nuisance – in that case from one said to reside in a right of privacy – was rejected by the Court of Appeal in January 2020 in Fearn and others v Board of Trustees of Tate Gallery [2020] EWCA Civ 104; [2020] EGLR 14, but the Supreme Court subsequently granted permission to appeal, and the substantive hearing may take place in 2021. Agriculture Family farming disputes have continued, irrespective of social distancing. One such is Pile v Pile, a dispute between brothers, each of whom claims that they have been excluded from part of the land for many years, and as a result are entitled to occupation rent and/or an account. This is listed for a five-day High Court trial in Birmingham on 24-29 May 2021. In early February 2021, the Court of Appeal is due to hear the appeal from Procter v Procter [2019] EWHC 1199 (Ch), involving important issues under the Agricultural Holdings Act 1986 (can a tenancy at will be protected? Is the agricultural status of a tenancy lost if part of the farm is diversified by conversion to a golf course?); and in relation to the law of joint landlords/tenants and tenancies. This will have important implications for the many farming family situations where there is overlap between the persons comprising the joint landlords and the persons comprising the joint tenants, and where there is no written tenancy agreement. It also has ramifications for the law of joint tenancies generally. These are the cases in which I and members of my chambers are principally involved. There are many others. 2021 will be another interesting year. Guy Fetherstonhaugh QC is a barrister at Falcon Chambers