The EG Interview: Dellah Gilbert takes the wheel at the PLA

Dellah Gilbert learnt to drive tractors before cars and was once “a dab hand at running a combine harvester”. Growing up in West Yorkshire, her friend’s father had a farm. “I spent a number of summers in my late teens helping with the harvest, which in turn qualified me to join the Young Farmers Association,” Gilbert says. “That time taught me the importance of teamwork, achievement through hard work and how to cope outside your comfort zone. And of course, it was also great fun.” Gilbert has applied those life lessons to her thriving legal career, as a partner in real estate disputes at Maples Teesdale, where her areas of expertise include high-value dilapidations claims, hostile lease renewals, multi-million-pound development disputes and rent reviews, among other hotly contested issues. And now, following tractors and cars, she has taken the wheel at the Property Litigation Association, as its new chair. Gilbert is proud of what the PLA, which comprises nearly 1,500 lawyers, can offer property litigators in terms of learning and support, as well as the role it plays in campaigning for changes in property law.  “Much of our training is delivered by experienced barristers, enabling members to build stronger relationships with different chambers as well as other legal professionals from diverse backgrounds and at varying stages of their career,” she says. “In return, we call on our members’ wealth of experience to contribute to government consultations as well as our own surveys – so it’s very much a two-way relationship. As you can imagine, being lawyers, our members can be pretty vocal, but the beauty is that we gather perspectives from both owners and occupiers, meaning we get a wide variety of views that other stakeholders don’t necessarily bring to the table.” In her year as chair, she is hoping the organisation can play an even more active role in law reform. “Over the past couple of years, the PLA’s industry profile has definitely increased, but I would now like us to become a major stakeholder whose views are sought and considered whenever legislative changes affecting property are afoot,” she adds. “Although the Law Commission’s proposed 14th programme of law reform to tackle commercial property legislation is currently on hold, we know the government remains keen to address this issue – and the PLA is uniquely positioned to take a leading role in contributing to the debate.” Gilbert points out that her predecessor as chair, Mathew Ditchburn, partner and head of real estate disputes at Hogan Lovells, recently announced the launch of the PLA’s research into the Landlord and Tenant Act 1954, which will survey members on the Act’s continuing fitness for purpose. “We hope our report and resulting recommendations will feed into the debate and make an important contribution towards supporting commercial leasehold reform – whenever that may happen,” she adds. Landlord and tenant relations Gilbert’s term comes at a significant – and, likely, hugely busy – time for property litigators. The six-month arbitration scheme introduced by the Commercial Rent (Coronavirus) Act 2022 has come to an end, leaving a potentially high number of Covid rent arrears disputes yet to be resolved. And the current economic climate will exacerbate the financial woes of tenants, just as they were recovering from the pandemic.  “The government estimated 7,500 claims would be made,” Gilbert says of the arbitration scheme. “The PLA surveyed the arbitration bodies about a month before the scheme closed, and at that time there were only 15 known applications. We understand that a flurry of last-minute applications were made which are still being processed. However, it seems likely that the total number of applications will fall a long way short of the estimate. This is mainly because deals had been done – few businesses would have wanted their finances scrutinised in a published determination – so perhaps the most effective part of the arbitration scheme was the threat of its implementation.”  Based on the published decisions, Gilbert says that, on the whole, tenants are “not getting as generous relief as perhaps they might have hoped, mainly because their financials are now on the road to recovery and they can afford to pay more of the arrears”. She adds: “At the outset of Covid, it was a misconception that landlords would forfeit leases for non-payment of rent, when actually that was the last thing many of them wanted to do. Just because landlords can enforce, it doesn’t mean they will – particularly if a tenant has financial difficulties. However, if a tenant can pay but refuses, then all bets are off.” Now facing the cost-of-living crisis, Gilbert believes that most landlords and tenants will once again negotiate a sensible way through. “Covid is just one of many challenges that businesses have faced,” she says, “and each time the market has adapted to survive. In the deep recession following the 2008 crash, for example, landlords and tenants found ways to co-operate with one another. It’s easy to forget that this was also when the monthly rent concession letter really took off, which was later built on and adapted during Covid. In times of economic straits, it tends to be in everyone’s interests to keep businesses running and in their properties so far as possible.” Nevertheless, disputes will arise. “There will, of course, be tensions over what is affordable and whether certain insolvency procedures that may ensue are fair,” Gilbert says. “In uncertain economic times, property litigators tend to get busier as owners look to protect their assets and recover arrears, while occupiers look to retrench and/or minimise their exposure and are more likely to challenge the status quo. I expect to see tenants exercising more break clauses and landlords challenging their validity, as well as harder-fought dilapidations disputes and increased corporate insolvency, particularly CVAs.” In addition, she envisages more “friendly” lease renewals either going to court or further to the wire, following the pattern established during Covid. Also due to keep the sector busy is the Minimum Energy Efficiency Standard, set to bite in a big way in 2023, with the issues involved in bringing properties up to a compliant energy rating potentially a bone of contention. Gilbert believes there may be a divide between institutional and SME landlords, since the former are “more likely to have the resources to get everything in hand, whereas SMEs may not know what they are supposed to do or be able to afford the necessary changes”. She foresees that disputes may also arise between landlords and tenants regarding rights of entry for improvement works and for the recovery of costs.  “In lease renewals, we know the courts have recently taken a narrow approach to the incorporation of green clauses if their effect would impose additional burdens on the tenant,” she says. “I suspect that won’t stop landlords trying to introduce green clauses on renewal, and it will be interesting to see if different county courts take a consistent line.” Just because landlords can enforce, it doesn’t mean they will – particularly if a tenant has financial difficulties. However, if a tenant can pay but refuses, all bets are off Equality, diversity and inclusion Gilbert is also Maples Teesdale’s co-head of diversity and inclusion, a responsibility she takes seriously. “The obvious EDI priorities shared by many legal businesses are parity between men and women at senior levels and increasing ethnic diversity at all levels,” she says. “We have doubled the percentage of women partners in recent years, have organised training in topics such as inclusive leadership and unconscious bias, and been an active member of industry EDI organisations such as Real Estate Balance.  “As regards ethnicity, we recognise that the way forward is to start from the ground up, so we use technology to widen the pool for selecting trainees. This has been really successful and I am pleased to say that just shy of half our current trainees have an ethnic minority background. I think we need to stimulate greater ethnic and social diversity at all levels – from developing more inclusive talent pipelines to supporting greater diversity among middle managers, and ensuring this gets translated into more diverse leaders right at the very top.” Gilbert’s perception is that the real estate industry is becoming “much more inclusive and reflective of society”, and she believes the PLA is an “ideal platform” to champion EDI within the profession.  “We are already setting a great example on gender,” Gilbert says. “I’m the sixth woman chair and we currently have a woman president, Judge Elizabeth Cooke – the second time there have been two women at the top. What’s more, 60% of our executive committee are women, all of which sends an important message on gender equality to the industry at large.” The property litigation field has traditionally been popular with women, Gilbert notes, illustrated by the balance in numbers of male and female PLA members. “We know that imbalances exist at partner level, however, so there is still work to be done there,” she adds. “One way to address this is to make training available to all junior PLA members in the skills needed to become a partner. We encourage members to share their diversity challenges with us – including what is working and where they need more support – so we can respond to their needs through our future training and resources.” As regards ethnicity, we recognise that the way forward is to start from the ground up, so we use technology to widen the pool for selecting trainees – this has been really successful Work-life balance Hard-working Gilbert acknowledges that the most difficult thing during her term as chair will be getting as much done as she would like. “Having said that,” she adds, “I’ve got a great vice chair in Mishcon de Reya’s Mark Reading, and we’re both fired up and ready for the challenges ahead.” Both Ditchburn and the incumbent before him, Gary Lawrenson of Osborne Clarke, had the same words of advice for her: “Take the time to enjoy being chair, as it will fly by.”  But, just as the PLA prioritises the wellbeing of its members, how does Gilbert take care of hers? “I have an hour’s train journey each way to the office,” she says. “While I’m happy to work on the morning journey, the return home is definitely reserved for unwinding and trying – but usually failing – to complete the Evening Standard’s cryptic crossword. “A typical weekend will involve my husband and I watching our daughter play a lacrosse match, a takeaway telly night watching something like Stranger Things – so addictive – and going for walks on nearby Blackdown [in the South Downs National Park]. Just being outside melts the stresses away.” Once a Young Farmer, always a Young Farmer.  To send feedback, e-mail jess.harrold@eg.co.uk or tweet @jessharrold or @EGPropertyNews Photo © David Klein Photography; Solar panels: Andreas160578/Pixabay; Person in mask: Andy Rain/EPA-EFE/Shutterstock