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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Bello v Ideal View  EWHC 2808 (QB) (14 October 2009)
Cite as:  4 EG 118,  EWHC 2808 (QB)
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QUEEN'S BENCH DIVISION
London WC2A 2LL
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(Official Shorthand Writers to the Court)
MR CARL FAIN (instructed by Kingsley Napley) appeared on behalf of the Respondent/Claimant.
Crown Copyright ©
"The Lessee shall pay for such residue"
That is to say, the residue after the first 25 years of the lease.
"hereinbefore mentioned of the said term an annual rent which shall be determined in accordance with the following formula that is to say such rent shall be the rent (but not less than the rent firstly hereinbefore reserved) at which the demised premises first mentioned might reasonably be expected to be let in the open market by a willing landlord by a Lease for a term of years equivalent to such residue as aforesaid without regard for anything built on the land on the same terms and subject to the same incidents in all other respects as this present demise, provided that if no agreement is reached between the parties by the penultimate quarter day prior to the commencement of such residue as aforesaid as to the rent at which the demised premises might reasonably be expected to be let in the open market on the basis hereinbefore described, then the question shall be referred to the decision of a single arbitrator to be appointed by the President for the time being of the Royal Institution of Chartered Surveyors in accordance with the provisions of the Arbitration Act 1950 or any statutory modification or re-enactment thereof for the time being in force, provided further that until such new rent shall have been determined the rent firstly hereinbefore reserved shall continue to be payable and any difference between that and the said new rent during such period as this last proviso operates shall be added to and be payable with the next instalment of rent due after the said new rent has been determined."
"No action shall be brought, or distress made, to recover arrears of rent, or damages in respect of arrears of rent, after the expiration of six years from the date on which the arrears became due."
"Finally, I am encouraged to find that the view that I have formed as to the way in which this type of problem should be approached coincides (save in the one respect of the possibility of abandonment as a separate legal concept) with the views expressed by Slade L.J. in the recent decision of the court in London & Manchester Assurance Co. Ltd. v. G. A. Dunn & Co. (1982) 265 E.G. 39, 135:
'In the absence of binding authority compelling a different conclusion, I am satisfied that delay on its own, even if unreasonable, will not in general disentitle a landlord from invoking a rent review clause in a case where time has not been made of the essence of the contract. There is, I think, no general principle of the law of contract that mere delay in the enforcement of a contractual right, or in the performance of a contractual duty, by one party to a contract ('A') will entitle the other party ('B') to regard himself as discharged from the obligation to recognise such right or from the contract as a whole (as the case may be). If in such circumstances A has been guilty of unreasonable delay, then, ordinarily, the prudent and proper course for B to adopt, if he wishes to bring matters to a head, will be to serve a notice on A fixing a reasonable period within which A must exercise his right (if at all) or must perform his part of the contract (as the case may be). In some circumstances, of course, the delay on the part of A may be so gross and inexplicable as to make it so clear that he does not intend to exercise his right or to perform his part of the contract that any such notice is unnecessary. But, ordinarily, it will be necessary for B to serve a notice on A or at least to have some communication with him before he can properly and safely regard himself as being absolved.'
It is true that in the circumstances of that case what Slade L.J. said was obiter, but it forms part of a carefully reasoned analysis which I gratefully adopt."
"In my judgment there is no justification for reading into the lease an implied term that if the landlord did not serve a rent assessment notice on or before December 25, 1974, he had to do so within a reasonable time thereafter. Such an implied term would not have been necessary to give business efficacy to the lease. The landlord would not have wanted it and the tenants benefited by not having it. Any delay on the landlord's part would mean that the tenants went on paying the original rent until such time as the landlord did serve a notice. If for any reasons of their own, such as a general fall in rental values, they had wanted the landlord to come to a decision about the service of a rent assessment notice they themselves could have served what has come to be known, inaccurately, as a notice "making time of the essence of the contract": see Stickney v. Keeble  A.C. 386 and United Scientific Holdings Ltd. v. Burnley Borough Council  A.C. 904."
"He would only have been estopped if the tenants could have proved that by his words or conduct he had represented that he did not intend to ask for the payment of a higher rent and in reliance on that representation they had altered their position to their prejudice. In my judgment nothing short of estoppel would have relieved the tenants from their liability to pay a higher rent. The concept of abandonment has been referred to in some of the rent review cases. I do not regard it as a term of art apt to describe a defence to a landlord's claim for a higher rent. If a landlord by his words or conduct leads his tenant reasonably to infer that he did not intend to claim a higher rent he makes a representation to that effect so that the foundation of an estoppel is laid; but the landlord will not be estopped unless the tenant has acted on the representation to his prejudice. A landlord who over a long period makes no attempt to set a rent review procedure in motion may be adjudged to have represented that he did not intend to exercise his rights; but whether he did would be a matter of inference from the circumstances in which the delay had occurred, not from the mere fact of the delay. I can see no reason why mere delay, not amounting to a representation, can be a bar to a landlord in this kind of case claiming a higher rent. He has his contractual rights to a higher rent and the tenant has an obligation to pay it unless he can prove that there is some good reason why he should not. Mere delay would not be a good reason. On the facts of this case, as Mr. Rich admitted when opening the appeal, there was no evidence which would have founded an estoppel."