Last minute amendment

Davies Attbrook (Chemists) Ltd v Benchmark Group plc ChD TLR 24 November

The tenant commenced proceedings for the grant of a new tenancy under Part II of the Landlord and Tenant Act 1954. The landlord did not oppose the new tenancy and served an acknowledgement of service. Pending the trial date the parties negotiated the terms of a new lease, which included a tenant-only break clause. Before the trial date, the landlord wished to have the option of redeveloping the property in the future and applied to the court for permission to amend its acknowledgement of service by including a claim that any new lease should contain a landlord’s break clause, and sought an adjournment of the trial. The application was heard by a recorder who dismissed it. On appeal, it was held that the recorder’s decision was wrong in law for a number of reasons. He had referred to the tenant’s ‘legitimate expectations’ but failed to explain what he meant by the phrase, which was a public law concept and should not have been brought into the context of civil litigation. The recorder had also said that because the application to amend was made on the eve of a trial, a compelling reason was required to allow it. There is no reference in the Civil Procedure Rules to a proposition that in such a case a compelling reason was required to allow an amendment and as both parties had not filed any evidence, the trial would have had to be adjourned anyway. The fact that the landlord had altered the nature of its case from that on which it had negotiated in the attempted settlement was not sufficient reason to refuse the amendment. Under ss33 and 35 of the Act, concerning applications for new tenancies, the court had to have regard to all the circumstances and such an application under the Act concerned the future relationship of the parties. The fact that a landlord’s break clause would make it more difficult for the tenant company to sell on the business was not a legitimate consideration, because it was no part of the policy of the Act to place a saleable asset in the hands of the tenant. The decision was set aside under CPR Part 52 and the discretion exercised afresh, allowing the amendment.