Jersey Unreported Judgments

Lease - landlord's application for summary judgment against the defendant.

[2022]JRC212

Royal Court

(Samedi)

11 October 2022

Before     :

Advocate Matthew John Thompson, Master of the Royal Court.

 

Advocate J. D. Kelleher for the Landlord.

Advocate M. W. Cook for the Defendant.

CONTENTS

		Paras
1.	Introduction	1
2.	Background	2-3
3.	Pleadings	4-8
4.	COVID-19 Restrictions	9-19
5.	The Landlord's Submissions	20-49
6.	The Defendant's Submissions	50-70
7.	Decision	71-123
8.	Conclusion	124-125

judgment

the master:

Introduction

1.        This judgment contains my decision in respect of the landlord's application for summary judgment against the defendant for non-payment of rent and related service charges in relation to the Cineworld cinema ("the Cinema") located at the Waterfront.  The period for the monies claimed relates to when the Cinema was either closed due to the Covid 19 Pandemic or to a period when the defendant's ability to operate the Cinema was restricted due to various regulations passed by the States of Jersey or orders issued by the then Minister for Health.  The Defendant has otherwise paid rent and service charges due for periods when no regulations or orders affecting the operation of the Cinema were in place.  The Cinema was closed between 18^th March 2020 and 21^st May 2021.  Any restrictions affecting the operation of the Cinema (set out in more detail below) at the latest came to an end on 26^th August 2021. 

Background

2.        The landlord enjoys the benefit of a long lease of land known as the Waterfront.  The freehold of the Waterfront is owned by the Public of Jersey.  The defendant is an operator of cinemas at various locations in the United Kingdom and operates the Cinema.  The defendant is part of the UK Cineworld Group and leased the Cinema from the landlord pursuant to a sub-lease for 35 years commencing on 5^th December 2002 by a contract passed before the Royal Court of Jersey on 11^th April 2003. 

3.        The material terms of the sub-lease are as follows: -

""Basic Rent" means £472,500 (Four Hundred and Seventy Two Thousand Five Hundred Pounds) per annum subject to the provisions for revision contained in clause 7."

""Insured Risks" means fire storm tempest lightning explosion flood earthquake aircraft and other aerial devices and articles dropped therefrom (in time of peace) impact by road vehicles riot civil commotion malicious damage bursting and overflowing of water tanks apparatus and pipes terrorist activity landslip subsidence and heave and such other risks against which the Estate is required to or which may from time to time be insured under the provisions of this Lease subject to any excesses exclusions limitations or conditions as may be imposed by the insurers or underwriters with whom such insurance is place [sic] provided such are not abnormal in the UK or Jersey insurance market place at the time of any renewal."

""Permitted Use" means until the expiry of the fifth year of the Term the use as a Multiplex Cinema with uses ancillary thereto...."

""Rents" means all sums reserved as rent by this Lease."

"2. Demise

2.1      In consideration of the Rents and the Tenant's covenants reserved by and contained in this Lease the Landlord demises to the Tenant all that the Demised Premises together with (but to the exclusion of all other liberties easements rights or advantages) the rights set out in schedule 2 except and reserving to the Landlord and all other persons entitled thereto the rights set out in schedule 3 and except and reserving to the Superior Landlord the rights reserved pursuant to the Superior Lease TO HOLD the Demised Premises unto the Tenant for the Term of Thirty five (35) years from and including the Term Commencement Date yielding and paying therefor during the Term yearly and proportionately for any fraction of a year by way of rent:

(a)       the Basic Rent and the Bar Rent which shall be paid by equal quarterly payments in advance on the Quarter Days in every year the first of such payments (or a proportionate part) in respect of the period commencing on the Rent Commencement Date and ending on the day preceding the quarter day next following to be made on the Rent Commencement Date;

(b)        the Service Charge which shall be paid as stated in paragraphs 4, 5 and 6 of part I of schedule 4 as from the Term Commencement Date;

(c)        the Insurance Rent which shall be paid as stated in clause 6.2(a) as from the Term Commencement Date; and

(d)        any other sums which may become due from the Tenant to the Landlord under the provisions of this Lease."

"3. Tenant's covenants

The Tenant covenants with the Landlord during the Term as follows:

3.1 Rent

(a)        To pay the Rents at the times and in the manner required by this Lease without any deduction whether by legal or equitable set-off other than any required by statute and not to exercise or seek to exercise any right or claim to withhold any Rents or any right or claim to legal or equitable set-off.

3.3 Service Charge

To pay to the Landlord the Service Charge and to observe and perform the obligations relating to the Service Charge as set out in Schedule 4.

3.11 User

(a)        Not to use the Demised Premises otherwise than for the Permitted Use.

3.14 Laws

(a) At all times during the Term at the Tenant's expense to comply with all statutes statutory instruments bye-laws and regulations issued by any Insular Parochial Statutory or regulatory authority in so far as the same relate to the Demised Premises and are not the responsibility of the Landlord under this Lease."

"4. Provisos

The parties agree to the following provisos:

4.8 No Warranty

Nothing herein contained or implied shall be taken to be a warranty or representation as to the purpose for which the Demised Premises may lawfully be used."

"5. Landlord's covenants

The Landlord covenants with the Tenant as follows:

5.1 Quiet Enjoyment

That the Tenant paying the Rents and performing the Tenant's covenants reserved by and contained in this Lease may lawfully and peaceably enjoy the Demised Premises throughout the Term without any lawful suit eviction or interruption by the Landlord."

"6. Insurance

"6.1 Landlord's Obligations

The Landlord Covenants with the Tenants as follows:

(a)       Save to the extent that any insurance shall be vitiated by any act neglect default or omission of the Tenant or any sub-tenant or their respective employees' agents licensees or invitees to insure or cause to be insured in an insurance office of good repute and to use reasonable endeavours to have the interest of the Tenant noted thereon:

(i)        the Estate (including the Building) against loss or damage by the Insured Risks and such other risks against which the Landlord may from time to time reasonably deem appropriate to insure (except always such risks as cannot reasonably be insured by the Landlord on satisfactory terms or as the Landlord's insurers or underwriters have refused to insure) in a sum equal to the likely cost of completely rebuilding reinstating and replacing the same (taking into account estimated increases in building costs) including the cost of demolition shoring removal of debris and other expenses and a proper provision for professional fees in respect of rebuilding and reinstating;

(ii) the loss of Basic Rent and the Bar Rent from time to time (having regard to any review of the Basic Rent and the Bar Rent which may become due under this Lease) for 3 years or such longer period as the Landlord may from time to time reasonably consider to be sufficient for the purposes of planning and carrying out such reinstatement;

(iii) the public liability of the Landlord arising out of or in connection with any matter involving or relating to the Estate.

[...]

(c) When Iawful to do so to expend all monies received (other than in respect of rent and fees and public liability) by virtue of any such insurance towards reinstating so far as practicable the Building (including the Demised Premises) after the destruction thereof or any damage thereto.

6.2 Tenant's Obligations

The Tenant covenants with the Landlord as follows:

(b) Save as required by clause 6.2(g) not to effect any separate insurance of the Demised Premises against loss or damage by any of the Insured Risks but if the Tenant shall become entitled to the benefit of any insurance on the Demised Premises then the Tenant shall apply all monies received by virtue of such insurance in making good the loss or damage in respect of which the same shall have been received.

"(g) To insure and keep insured all the plate glass (if any) forming part of the Demised Premises against breakage or damage for a sum not less than the full reinstatement value thereof for the time being with such insurance company of repute and through some agency as shall from time to time be nominated by the Landlord and whenever reasonably required by the Landlord to produce the said policy of insurance or a copy thereof and the receipt of the current year's premium and to forthwith lay out all monies received under such insurance and such other money as may be necessary in reinstating the glass with glass of the same quality and thickness."

"6.3 Rent Suspension

If the Building or the Demised Premises or any part thereof or the means of access thereto shall be destroyed or damaged by any Insured Risk so as to render the Demised Premises unfit for occupation or use or inaccessible then save to the extent that the insurance of the Estate shall have been vitiated by any act neglect default or omission of the Tenant or any sub-tenant or their respective employees agents licensees or invitees the Basic Rent and the Bar Rent or a fair proportion thereof according to the nature and extent of the damage sustained shall be suspended until the Building (or the relevant part thereof) or the means of access thereto shall have been reinstated so as to render the Demised Premises fit for occupation and use and accessible or (if earlier) until the moneys received by the Landlord in respect of loss of rent insurance shall have been exhausted."

"7. Rent Review

7.2. Amount of Rent

7.2.1 The Basic Rent shall be reviewed on each Rent Review Date and shall from the Relevant Review Date be a rent equal to the greatest of:

(a)        the Basic Rent payable under this Lease immediately preceding each Rent Review Date and;

(b)        in the case of the first Rent Review Date the sum of Five Hundred and Forty-Seven Thousand Seven Hundred and Sixty-Nine Pounds (£547,769) per annum;

(c)        the Market Rent as at the Relevant Review Date ascertained as herein provided."

Pleadings

4.        As this is an application for summary judgment it is appropriate to set out the issues between the parties by reference to the parties' pleadings.

5.        The order of justice therefore pleads the landlord's claim as follows: -

"The COVID-19 Pandemic

17. In or around February and March 2020, the virus known as COVID-19 spread across the world and caused a global pandemic. In early March 2020 the Governments in the UK and Jersey advised that people should socially distance.

18. The Governments of the UK and Jersey enacted certain primary and subordinate legislation to implement restrictions to place their respective jurisdictions in "lockdown" by inter alia restricting the freedom of movement of people and the operation of businesses in order to stop the spread of COVID-19. Non-essential businesses such as cinemas were required to close for a temporary period.

19. The UK went into lockdown on 23 March 2020 and socially distancing became mandatory. Jersey went into lockdown on 30 March 2020.

20. Cineworld closed the Cinema in Jersey on 17 March 2020, and also closed its cinemas in the UK on or around the same date.

21. Cinemas were able to reopen in the UK on 4 July, but Cineworld's cinemas remained closed until 31 July 2020. Cineworld opened its cinemas in the UK for a temporary period but closed its doors again on or around the 9 October 2020. Its website stated that it would be closed for the "foreseeable future". This was prior to subsequent government directives in the UK restricting the operation of businesses.

22. The Cinema remained closed from 18 March 2020 until 21 May 2021.

23. COVID-19 restrictions were relaxed in Jersey on 12 April 2021 when theatres and cinema were allowed to reopen. On 11 May 2021, Cineworld posted on the Cinema's Facebook page that "unfortunately, due to current government restrictions in Jersey, Cineworld will not be able to re-open there at present as it is not viable for us to operate. We apologise for the inconvenience but look forward to re-opening the cinema for our valued customers when restrictions are eased, which is currently anticipated to happen from June 14.

24. It was reported in the Jersey local press on 12 May 2021, that the reason the Cinema was not reopening in Jersey was because there were restrictions on the public consuming food and drink on the premises. Subsequently, the Minister for Health and Social Services enacted the Covid-19 (Workplace restrictions) (Amendment No.12) (Jersey) Order 2021 on 17 May 2021, which came into force on 18 May 2021 (the "2021 Order"). The Order permitted food and drink to be consumed on premises which included an auditorium such as the Cinema.

25. As a result of the 2021 Order, the Cinema in Jersey reopened on 21 May 2021.

The Arrears

26. In breach of clause 3.1(a) of the Lease, Cineworld has failed to pay the Rent due on 25 March 2020, 24 June 2020, 29 September 2020, 25 December 2020, 25 March 2021, and 24 June 2021. The amount of the Rent now outstanding and payable is £884,646.

27. In breach of clause 3.3 and 6.2 of the Lease, Cineworld has also failed to pay in full the Service Charge and Insurance payments due on 25 March 2020, 24 June 2020, 29 September 2020, 25 December 2020, 25 March 2021, and 24 June 2021. The amount of Service Charge (including direct payments for repairs and maintenance) and Insurance payments outstanding is now €191,996.87. It is acknowledged that partial payments of 30% of the Service Charge due for quarters two and three of 2020 were paid on 27 May 2020 and 9 July 2020, and a further partial payment was made on 17 February 2020 for 30% of the Service Charge which was allocated against the Service Charge due in December 2020 and March 2021. Those are the only payments received from Cineworld since December 2019.

28. In the premises, Cineworld owes WF Ltd a total of €1,076,642.87 (the "Arrears")"

6.        Paragraphs 30 to 33 of the order of justice refer to certain government guidance issued in respect of the effect of the COVID19 Pandemic and the effect that the resulting workplace restrictions might have on commercial leases.

7.        Paragraphs 34 and 35 of the order of justice referred to Practice Direction RC20/06 issued in respect of tenancy disputes by the Royal Court.  Paragraphs 34 and 35 state as follows: -

"34. The Royal Court issued Practice Direction RC20/06 in respect of "Tenancy Disputes" (the "Practice Direction") on 27 April 2020. The Practice Direction recognised that, in the context of COVID-19, the Courts in Jersey had either generally adjourned cases concerning Tenancy Disputes or had prioritised urgent civil cases instead. The Practice Direction made clear that the Royal Court in determining Tenancy Disputes would have regard to the contents of the Guidance and the extent to which parties have complied or failed to comply with it. However, the Practice Direction also made clear that "although the Court will take into account, in the way set out in this Practice Direction, the contents of the guidance and the parties' conduct when exercising such discretions as the Court may have, the parties' legal obligations to each other are not varied by the guidance".

35. The Updated Guidance acknowledged that the Courts in Jersey as at 24 September 2020 had started to hear Tenancy Disputes. It set out a number of points clarifying the Guidance, which included the evidence required to show financial hardship suffered by a landlord and/or tenant:

"The evidence required of either Party to manifest their initial claim of financial hardship should only be limited to such basic financial information as it is reasonable and appropriate for a Party to request having regard to their resources and their size as a business. Where a Party is able to demonstrate it is in receipt of Government support through one of the COVID-related support measures, it would be reasonable for financial hardship to be presumed by the Parties unless capable of being rebutted. Government wishes to remind the Parties that it is their obligation to keep the other Party advised if their financial circumstances improve. Where a Party is seeking a particular Payment Concession or Obligation Concession, such as full or partial waiver of rent, service charge or other payment obligation, it may be reasonable for a Party in accordance with the Overriding Principles to require additional financial information to assess, inter alia: (a) the sustainability of the business of the Party; (b) its future cash flow obligations; and (c) the strength of any Guarantor covenant. It is in the interests of the Party seeking the Concession that notice is given as early as possible to the other Party."

8.        The defendant filed an extensive answer.  The material paragraphs are as follows: -

"20. Pursuant to the:

20.1. Covid-19 (Restricted Trading) (Jersey) Order 2020 (brought into force on 2 May 2020, and subsequently the Covid-19 (Workplace Restrictions) (Jersey) Regulations 2020, which repealed the Covid-19 (Restricted Trading) (Jersey) Regulations 2020, pursuant to which the aforementioned Order was issued); and

20.2. Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (brought into force on 26 March 2020, having repealed the Health Protection (Coronavirus, Business Closure) (England) Regulations 2020/327, which had been in force until this date since 21 March 2020),

it became illegal for Cineworld to operate its business in Jersey and the UK respectively.

21. As a result, Cineworld was mandated to cease operating in Jersey under clause 3.14 of the Lease, pursuant to which Cineworld was obliged at all times "to comply with all statutes statutory instruments bye-laws and regulations issued by any Insular Parochial Statutory or regulatory authority".

22. Accordingly, the Covid-19 restrictions gave rise to an event of supervening illegality, which has significantly changed the contractual obligations of the parties. As a result, the Defendant's obligation to pay Rent, Service Charge and Insurance was temporarily suspended, pending the conclusion of the supervening illegality, such that the obligation to pay Rent, Service Charge and Insurance on the Quarter Days set out in the [Landlord's] Order of Justice never arose.

23. In the alternative, the Lease has an implied term that if the normal business use of the Cinema by Cineworld under the Lease becomes illegal, then the obligation to pay Rent, Service Charge and Insurance otherwise due would be suspended and cease to be payable for as long as such use resulted in an illegality. Accordingly, for the period during which it was illegal for Cineworld to operate the Cinema, Cineworld's obligation to pay Rent, Service Charge and Insurance otherwise due under the Lease was suspended and ceased to be payable until Cineworld was legally able to operate the Cinema again.

Use of the Cinema

24. Prior to 2 May 2020, whilst it was not illegal for the Cinema to operate in Jersey, it was impossible for it to do so given the lockdown restrictions already in place, mandating islanders to stay at home, other than in exceptional circumstances. Therefore, as a result of the Covid-19 restrictions in place in Jersey and the UK, Cineworld was required to close all of its cinemas in the UK and Jersey on 18 March 2020. As a result of the restrictions, and in particular the cap on the number of people allowed in the Cinema at any given time, which at times was limited to just 40 people, on the further occasions during which it was not illegal for Cineworld to operate the Cinema, it was a practical impossibility and was entirely commercially unviable to do so. A direct consequence of this was that, from this date until the cinemas reopened in the UK and Jersey, Cineworld was prevented from generating any revenue from the Cinema or any of its other premises across the UK where cinemas had operated prior to 18 March 2020. Even once the Cinema reopened on 21 May 2021, Cineworld's ability to operate as usual continued to be impeded by Covid-19 restrictions until and including 25 August 2021 (the period from 18 March 2020 to 25 August 2021, during which Cineworld was subject to Covid-19 restrictions, will hereinafter be referred to as the Restrictions Period).

25. Having been unable to generate revenue, Cineworld was placed into a position of restricted ability to pay the Rent, Service Charge and Insurance that would otherwise be payable under the Lease. Cineworld made its financial position clear to the [Landlord] throughout 2020 and 2021 and further detail is provided in this regard at paragraphs 58 to 60 below. Within two days of closing the cinemas, Cineworld contacted WF Ltd's agent, D2 Real Estate (D2RE), to notify it of the closures and initiate discussions in relation to payment of Rent. It was not possible for Cineworld to notify D2RE any sooner than this due to the huge administrative burden involved in closing all cinemas across the UK and Jersey at once.

26. In light of the abovementioned exceptional and unforeseen circumstances, Cineworld was unable to perform certain of its obligations under the Lease, including to pay Rent, Service Charge and Insurance. This was particularly so in circumstances where Cineworld's use of the Cinema was significantly limited by the terms of the Lease, for instance, by clauses 3.12 and 3.13, in addition to the Covid-19 restrictions that limited most business activities in any event. Accordingly, even if an alternative use of the Cinema had been viable as an alternative business model for Cineworld to generate an alternative revenue stream during the Restrictions Period, the terms of the Lease significantly limited Cineworld in using the Cinema for another purpose.

27. As a result, the agreement in regard to Cineworld's obligations to pay Rent, Service Charge and Insurance under the Lease was temporarily frustrated for the period during which Cineworld was unable to perform these obligations. Owing to this, no Rent, Service Charge or Insurance is payable by Cineworld during the Restrictions Period, or at least from 18 March 2020 until 18 May 2021.

28. In the alternative, the Lease has an implied term that if there is a substantial and wholly unforeseen interference with the Defendant's ability to use the Cinema for a purpose permitted under the terms of the Lease, then the obligation to pay Rent, Service Charge and Insurance otherwise due would be suspended and cease to be payable for as long as such interference continued. Accordingly, such obligations were suspended during the Restrictions Period, or at least from 18 March 2020 until 18 May 2021.

Market value of the Cinema during the pandemic

29. During the Restrictions Period, the market rental value of the Cinema would have fallen to zero, or in the alternative a sum significantly lower than the value of the Rent under the Lease, owing to the fact that the purpose to which the premises lends itself was impossible to fulfil and so, had WF Ltd had vacant possession of the Cinema during that time, it would have been unable, or highly unlikely to be able, to enter into a tenancy agreement of any real value with another party. Accordingly, the Rent under the Lease became extortionate during the Restrictions Period because the ability to generate any value from the use of the Cinema was entirely prevented and/or severely impeded. In such circumstances, equity requires that the Rent during that period should be nil, or at the very least significantly reduced to reflect the fact that the Cinema was of little to no use during this period.

Insurance

30. Under clause 6.3 of the Lease, in the event that the Cinema "or any part thereof or the means of access thereto shall be destroyed or damaged by any Insured Risk so as to render the Demised Premises unfit for occupation or use or inaccessible", the Rent "or a fair proportion thereof according to the nature and extent of the damage sustained shall be suspended until the Building (or the relevant part thereof) or the means of access thereto shall have been reinstated so as to render the Demised Premises fit for occupation and use and accessible or (if earlier) until the moneys received by the Landlord in respect of loss of rent insurance shall have been exhausted".

36. Accordingly, WF Ltd failed to properly insure the Cinema against the risk of a coronavirus pandemic and the loss of Rent arising from the same. This constitutes a breach of the Lease by the [Landlord] and it cannot seek to recover from the Defendant what would have been recoverable under an insurance policy in the event that the [Landlord] had properly obtained insurance in accordance with its duties under the Lease. This is particularly so in circumstances where the Defendant was prohibited by clause 6.2(b) from obtaining its own insurance in this regard.

Adherence to Government Guidance

37. In the alternative, in the event that Cineworld is liable to pay any Rent, Service Charge or Insurance for the Restrictions Period, which is denied for the reasons set out above, WF Ltd should have granted Cineworld a complete or partial waiver of the sums due for the reasons that follow.

38. The Guidance was issued by the Government early on in the pandemic and, even at that stage, it included in its recommendations that landlords should consider agreeing to a partial or complete waiver of sums due under their leases. Throughout the pandemic this Guidance was supplemented, as set out immediately below, and the option of a partial or complete waiver of sums due was Increasingly referenced therein. This is understandable, given that at the outset of the pandemic, it was not anticipated that restrictions would be in place for as long as they ultimately were and the impact of such restrictions on the affected businesses and the wider economy was also unknown at the time that the Guidance was issued.

39. Subsequently, on 7 September 2020, a 'Ministerial Update to Government Policy as Landlord for its Business Tenants during COVID-19 Period' (Ministerial Update) also identified a partial or complete waiver of sums due as an option that the Government, as landlord to business tenants, was willing to consider and had made available to certain tenants. The Ministerial Update stated that the "amount of any rental waiver offered or accepted by Government will be determined by reference to a Business Tenant's current trading position and its ability to afford the rent in the next rental period." It also stated that "where Business Tenants have been worst affected by the COVID-19 trading restrictions, Government has offered partial or complete rent waiver for that initial 3-month period." Clearly, Cineworld will have been one of the worst affected businesses by the Covid-19 trading restrictions, it being unable to operate its business as usual for just under a year and a half. Accordingly, Cineworld should have been offered a complete or, at the very least, a partial waiver of Rent.

40. The Updated Guidance went further and stated that "Government would also like the parties to consider adopting some of the other Payment Concessions, such as rent waiver or reduction", which it said would "help more businesses survive the effects of COVID-19 and, more critically, will allow the economy to recover more quickly." This is a particularly pertinent point in light of the fact that Cineworld operates the only cinema in Jersey.

41. The Updated Guidance also warned that "Government's key concern is that landlords and tenants of commercial property should not consider rental deferral as being the preferred option. This option has greater risk for both parties in the longer-term. It impedes the landlord's cash flow and increases the debt of the tenant [ ... ] While the profitability of businesses continues to be impacted by the effects of COVID-19, a deferral potentially carries more insolvency risk."

43. However, in the case of the Lease, as set out at paragraph 4 above, WF Ltd is owned by the Government, with its sole shareholder being JDC. As a result, WF Ltd is essentially the Government as landlord to a business tenant, in relation to which the Ministerial Update was intended to address. Accordingly, a greater expectation and requirement existed that WF Ltd would consider and act in accordance with the Guidance, Ministerial Update and Updated Guidance than if it had been a private landlord wholly unconnected to the Government. This is particularly the case given it was the Government which made the operation of the Cinema unlawful (and later commercially unviable) and thereby clearly and directly adversely impacted Cineworld's ability to generate the revenue to meet the obligations which would otherwise arise under the Lease. WF Ltd's failure to offer anything other than a deferral of Rent throughout the duration of the Restrictions Period and its subsequent issuance of proceedings are actions against the clear purpose and terms of the Guidance, Ministerial Update and Updated Guidance.

44. WF Ltd has failed to explain why it has adopted a stance contrary to its shareholder's own recommendations.

45. In addition, it is manifestly unfair for the Government, on the one hand, to prevent Cineworld from operating its business (and, therefore, from generating any revenue), whilst, on the other hand, seeking from it payment in full of Rent for the premises from which they would ordinarily operate but owing to the Government's restrictions have been prevented from doing so. Where a party causes itself to suffer losses in this way, equity requires that such a party must not be allowed to claim recovery of those losses from another innocent party. In other words, WF Ltd, as a Government entity, cannot require Cineworld to make payment of sums that Cineworld has been unable to pay due to the Government's own doing.

46. This is particularly the case, where the [Landlord], in breach of the Lease, failed to obtain proper insurance for the losses it caused (see paragraphs 30 to 36 above).

47. Further, it is manifestly unfair for Cineworld to be prejudiced by virtue of the fact that WF Ltd is a subsidiary of JDC, rather than the latter being Cineworld's landlord directly.

48. For the reasons set out under each of the subheadings above, the Rent did not fall due on the Quarter Days set out in the [Landlord]'s Order of Justice. In the alternative, any Rent that did fall due on those dates was at a significantly reduced rate, such rate to be determined by the Court in due course."

COVID-19 Regulations

9.        The reason for the dispute concerns whether or not the defendant is obliged to pay rent during the period the Cinema was closed as a result of the COVID-19 Pandemic and restrictions were imposed by the States of Jersey or the Minister for Health, and alternatively the defendant's ability to operate its business was restricted again by Covid related regulations or orders.

10.      The legislation relevant to the present dispute is as follows: -

(i)        On 22^nd April 2020, the States of Jersey passed the COVID-19 (Restricted Trading) (Jersey) Regulations 2020.  This was a piece of legislation which delegated broad powers to the Minister for Health and Social Services ("the Minister") to order the closure or partial closure of certain business premises.  Article 3 (1) of the Regulations provided: -

"3 Direction of Minister concerning closure or partial closure of certain business premises

(1) The Minister may, by Order, direct that during a period of restricted trading -

(a) certain business premises or classes of business premises must be closed to members of the public;

(b) certain business premises or classes of business premises may be open to members of the public only for a specified purpose;

(c) a person who is the occupier or operator of business premises must not carry out certain work; and

(d) a person who is the occupier or operator of business premises may carry out certain work only for a specified purpose."

11.      The above regulations were themselves passed under the COVID-19 (Enabling Provisions) (Jersey) Law 2020.

12.      On 1st May 2020, the Minister issued the COVID-19 (Restricted Trading) (Jersey) Order 2020.  This order required the closure of entertainment facilities which included cinemas (see paragraphs 3(1) and 3(2)).  The order came into force on 2^nd May 2020 and initially remained in force until 11^th May 2020.  This date was subsequently extended to 24^th May 2020 by Article 2 of the COVID-19 (Restricted Trading) (Amendment)(Jersey) Order 2020.

13.      The Restricted Trading Regulations were replaced by the COVID-19 (Workplace Restrictions) (Jersey) Regulations 2020 which were passed by the States of Jersey on 19^th May 2020 and came into force on 20^th May 2020 ("the Workplace Restrictions Regulations").  As a consequence, any Orders made by the Minister under the Restricted Trading Regulations lapsed.

14.       Article 2(1) of the Workplace Restrictions Regulations provided as follows: -

"2 Period of restricted opening of workplaces

The Minister may make a restriction Order if the Minister, after consulting the Medical Officer of Health, is satisfied that, in relation to workplaces, the risk or potential risk to public health caused by Covid-19 is such that it is proportionate and necessary to do so."

15.      On 20^th May 2020, the Minister issued the COVID-19 (Workplace Restrictions) (Jersey) Order 2020 which required "entertainment facilities" to be closed (see Article 2(1)(d)). Article 2(2) clarified that entertainment facilities included cinemas.  The Workplace Restrictions Order was initially said to cease to have effect on 3^rd June 2020 but was subsequently extended to 12^th June 2020 and was then amended which appeared to remove references to entertainment facilities.  The Cinema did not however open.  This was said by the defendant to be due to the practical implications of complying with government guidance concerning "controlled gatherings" and how the limit of 40 people was to be applied to the Cinema.  The defendant's position was that continuance of the coronavirus restrictions meant that it was not viable for the Cinema to reopen  

16.      Cinemas were closed again on 24^th December 2020 pursuant to Article 3 of the Covid-19 (Workplace Restrictions) (Amendment No. 7) (Jersey) Order 2020 and were only permitted to reopen from 12^th April 2021 onwards when the reference to entertainment facilities was removed by Article 3 of the COVID-19 (Workplace Restrictions and Gathering Control) (Amendment no 5) (Jersey) Order 2021.

17.      Masks had to be worn in Cinemas from 12^th April 2021 to 14^th June 2021 and again from 31^st July 2021 to 26^th August 2021. It is not necessary to set out the detailed provisions imposing this requirement.

18.      In addition, food and drink could not be served for consumption at cinemas until 18^th May 2021.

19.      There were also requirements to carry out contact tracing as well as limits on how many people could use the Cinema at various times until the Cinema was free to operate without any restrictions from 26^th August 2021.  Again, for the purposes of this judgment it is not necessary to set out the detailed provisions imposing these requirements.

The landlord's submissions

20.      Advocate Kelleher for the landlord made the following written and oral submissions.

21.      In the landlord's initial written skeleton argument, I was invited to consider the landlord's application against the backdrop of a number of decided cases in England and Wales where landlords have successfully claimed for arrears of rent during periods where the defendant's business was required by law to close because of the COVID-19 Pandemic.  Advocate Kelleher argued that these cases were useful guidance as to how Jersey should approach the landlord's claim.  In particular, he referred to the decisions in Commerzreal Investmentgesellschaft mbh v TFS Stores Limited [2021] EWHC 863 (Ch); Bank of New York Mellon (International) Ltd v Cine-UK Ltd [2021] EWHC 103; and London Trocadero (2015) LLP v Picturehouse Cinemas Ltd & Ors [2021] EWHC 2591 (Ch).  He further argued there were no reported decisions where a court had found in favour of a tenant facing claims for arrears of rent where a tenant was relying on a COVID-19 Pandemic related defence.

22.      In his skeleton argument he identified five issues raised by the defendant's answer at paragraph 22 as follows: -

"22.1. Issue (1): Supervening illegality and Temporary Suspension of Obligation.

22.2. Issue (2): the Operation of the Insurance and Rent Cesser Provisions.

22.3. Issue (3): Implied terms generally as to suspension of rent.

22.4. Issue (4): 'Equity" requires the Court to intervene.

22.5. Issue (5): Adherence to Government Guidance."

23.      In respect of supervening illegality and temporary suspension of obligations, this included the effect of any legislation passed by the States or issued by the Minister, the doctrine of frustration, whether the defendant should be released from any obligations said to be impossible, whether a contract could be temporarily frustrated, whether there had been a total failure of consideration and/or force majeure. 

24.      Following the initial exchange of skeletons received from the parties, as the dispute is ultimately a contractual one, I asked to be addressed on what Pothier had to say about force majeure including suspension of an obligation and what this might mean in addition to the English law position.  I also asked to be addressed on what the current position under French Law might be and supplemental skeletons were filed as a result. Two texts by Pothier were cited, being the Traité des Obligations and the Traité du Contrat de Louage.

25.      In relation to the lease, Advocate Kelleher argued this was a standard form commercial lease between two commercial parties which had been negotiated at arm's length.  This included Clause 3.1(a) which obliged the defendants to pay the rent without any deduction and included an agreement "not to exercise or seek to exercise any right or claim to withhold any Rents or any right or claim to legal or equitable set-off."

26.      He therefore argued that the breadth of this Clause excluded any argument the defendant was now relying upon by reference to Pothier.  Even if therefore the doctrine of temporary suspension was part of Jersey Law based on the writings of Pothier (which Advocate Kelleher did not accept), Clause 3.1(a) was effectively broad enough to exclude reliance on any such principle.  He contended there was no difference between a claim to withhold rent and a temporary suspension meaning rent was not payable in the first place.

27.      In relation to Pothier, the basic principle for contracts was contained in the Traité des Obligations Volume 1.  In the Traité des Obligations the starting position for all contracts was that parties had to fulfil their contractual obligations (paragraph 146).

28.      At paragraph 149 of the Traité des Obligations a defaulting party was only excused from paying damages if it failed to perform its contractual obligations in the event of force majeure or a cas fortuit.  These terms Advocate Kelleher accepted were used interchangeably.  What was meant by a force majeure was not however defined. 

29.      Under the Traité des Obligations, a force majeure however did not prevent an obligation to pay money.  This was clear from the discussion at paragraph 658.

30.      Whether or not a party was required to pay damages was also affected by how far under their contractual bargain there had been an acceptance of risk by one party compared to the other (see Volume 2 of the Traité des Obligations Part 3 Chapter 6 paragraph 668).

31.      In relation to the commercial lease, as this dealt with what would happen if the Cinema were destroyed, the parties had therefore considered a possible cas fortuit and allocated a risk accordingly i.e. the landlord had to obtain insurance cover and had to rebuild with the obligation to pay rent being suspended for up to 3 years if such damage occurred.  However, having allocated this risk under the lease, the consequence of this agreement meant that all other risks, whether foreseen or not sat, with the defendant.  The parties could have drafted the lease differently and, in particular, could have specified that the obligation to pay rent would not arise in various other circumstances but had chosen not to do so.

32.      As to the effect of force majeure and whether it could lead to suspension of the obligation to pay rent, the Traité des Obligations did not assist in any material way.  Rather it appeared to suggest that the remedy was that of resolution which was the approach taken in the Hotel de France (Jersey) Limited v The Chartered Institute of Bankers (1995_256) (21 December 1995).

33.      In relation to the Traité du Contrat de Louage six principles were set out.  The key principle was principle six which provides as follows: -

"43. Principle 6: "Lorsque le conducteur n'a pas été privé absolument de la jouissance de la chose, mais que par accident imprévu sa jouissance a souffert une altération et une diminution très considérable, il peut demander une diminution proportionnée dans le loyer, depuis le temps que sa jouissance a souffert cette diminution, ...

[Translation: When the person in possession has not been absolutely deprived of the enjoyment of the thing, but by unforeseen accident his enjoyment has suffered a very considerable alteration and reduction, he can ask for a proportionate reduction in the rent, from the time that his enjoyment suffered this decrease]"

34.      The landlord's position was that it had only covenanted with the defendant that the latter as tenant could have quiet enjoyment of the Cinema pursuant to Clause 5.1 of the lease.  The landlord was not in breach of that provision as the closure or restrictions imposed on the defendant's ability to operate the Cinema was due to legislation passed by the States or issued by the Minister.  There was no positive term or warranty agreed by the landlord as landlord that the defendant could enjoy use of the Cinema as a cinema.  The only other relevant restriction was found in Clause 5.3 which placed an obligation on the landlord not to allow any other part of the Waterfront to be used as a cinema so long as the defendant was using the Cinema for that purpose. 

35.      The landlord's claim was therefore a straightforward question of construction which did not require a hearing before the Royal Court.  The English cases of Commerzreal, Bank of New York Mellon, and London Trocadero referred to above were all examples of the court on a summary judgment application construing leases and the relevant principles of law.  The present case was no different.

36.      In relation to Pothier, Advocate Kelleher argued that the Traité du Contrat de Louage principles should not be followed in any event.  This was because Pothier in this Traité did not analyse why force majeure should apply to the payment of rent, when force majeure in the Traite des Obligations did not apply to a payment of money.  French Law had also followed the more general principle that an obligation to pay money could not be subject to force majeure.  More recent modifications to the French Civil Code had gone down the hardship route.  Before this change, the Code Civil had applied the principles contained in the Traite des Obligations not the principle relied on by the defendant in the Traité du Contrat de Louage.  It was therefore difficult to see why the position should be different for leases compared to an obligation to pay money under any other contract.

37.      Advocate Kelleher accepted that other parts of the Traité du Contrat de Louage had been recognised as part of Jersey Law, but the present principle had never been applied by the Royal Court.  He argued therefore that it was not part of Jersey Law.  To find otherwise would open the floodgates to arguments about suspension of rent during the COVID pandemic.  This led Advocate Kelleher to refer me to the remarks of Sir Michael Birt in Hong Kong Foods Limited v Robin Hood Curry Limited [2017] JRC 050 at paragraph 141 as follows: -

"141.   In our judgment, the Court should, so far as consistent with legal principle and precedent, develop the Jersey law of contract so as to be suitable for the requirements of commercial life in the 21st century and to be as easily ascertainable and understandable as possible."

38.      No other commentators or articles mentioned or discussed the application of the sixth principle found in the Traité du Contrat de Louage. In addition, during the German occupation of Jersey 1940-1945, The Adjustment of Rent (Jersey) Law 1940 would not have been necessary if the sixth principle had formed part of the Law of Jersey.  A landlord and tenant who could not agree to adjust the rent in the exceptional circumstances of that occupation could have simply gone to the Royal Court to determine what rent was payable.

39.      In relation to the other arguments raised by the defendant, Clause 3.14(a) of the lease placed the obligation on the defendant to comply with any statutes or other legislation issued, whether by the States of Jersey or a Minister.  Clause 3.14 therefore transferred the risk that the Cinema could not open due to legislation onto the defendant.

40.      In relation to the obligation to insure, this was only against loss or damage to the Cinema.  This was clear from both Clause 6.1(a) and the definition of Insured Risks.  Whether the landlord chose to extend the insurance to any other risks, any other risk still only had to be in relation to the cost of rebuilding or reinstating the Cinema.  There was no obligation on the landlord to obtain insurance in relation to the effects of the COVID Pandemic or of a third party event preventing the defendant operating the business as a Cinema.  That was a matter for the defendant.

41.      Nor did the lease prevent the defendant obtaining its own business insurance.  Clause 6.2(b) of the lease prevented the defendant from obtaining insurance in respect of the insured risks but not any other risks the defendant might face.  In any event, as was clear from paragraph 33 of the affidavit of Kevin Frost dated 18^th March 2022 filed on behalf of the defendant, the defendant itself had accepted that prior to the Pandemic it would have been possible to obtain insurance for loss of rent arising out of business interruption.  While Mr Frost's position was in support of the defendant's argument that the landlord should have obtained such insurance, Advocate Kelleher relied on the relevant paragraph to contend that it was open to the defendant to have taken out such insurance and therefore the possibility of a closure of the Cinema due to a Pandemic was foreseeable.

42.      The doctrine of frustration did not apply as a matter of English Law because there could be no temporary suspension (see paragraph 211 of Bank of New York Mellon).  Advocate Kelleher referred to the English position because in Mobil Sales & Supply Corporation V. Transoil (Jersey) Limited [1981] J.J. 143 the court appeared to consider whether the doctrine of frustration was applicable in Jersey by reference to English Law principles (see page 160).

43.      Insofar as the defendant relied on a total failure of consideration, consideration was not part of Jersey Law.  In any event there was no such failure. The landlord had only to provide quiet enjoyment and was not in breach of that obligation.  Nor was there any warranty from the landlord that the leased premises could be used as a cinema.

44.      In relation to the arguments for implied terms suspending the payment of rent as the Cinema could not lawfully be occupied, or for a term to have the same effect as a temporary frustration, or based on the argument that the landlord should have insured against risk of a pandemic, the relevant threshold to imply a term currently set out in Grove and Briscoe v Baker [2005] JLR 348 was not met.

45.      In relation to the latest review of the principles to be applied to imply terms as articulated by the Supreme Court in Marks & Spencer Plc v BNP Paribas Securities Services [2016] AC 742 for a term to be implied either required the term to be implied as a matter of business efficacy or because the implied term asserted was so obvious that it went without saying.  The landlord's position however on any implied term was that the lease worked perfectly well without the implied terms sought by the defendant; the lease attributed various risks to the parties including that the Cinema could not be used as a result of an unforeseeable event unless the rent cesser clause operated which it did not because there was no damage.  The test was one of necessity not reasonableness.  The landlord's position was that, if any issue now relied upon had been raised when the lease was being negotiated, it was far from obvious what conclusion might have been reached.  The arguments based on implied terms had been pursued in England and did not succeed - (see Bank of New York Mellon, and London Trocadero). Advocate Kelleher contended for the same conclusion in the present case.

46.      In relation to the argument that equity required the court to intervene, the landlord's position was that no proper basis had been identified upon which the court could interfere with the contractual arrangement reached between the parties. 

47.      The argument that to require payment of rent was extortionate because the market value of the rent was nil was also inconsistent with the terms of the lease which provided for a minimum rent to be payable i.e. the rent payable only went up and not down.

48.      In relation to the defendant's reliance on Government guidance applicable to situations where Government was the landlord, the landlord's position was this was guidance only and it did not apply to the landlord which was a separate company.  It was not possible to look through the separate legal personality of the landlord simply because it was owned by the States of Jersey.  The effect of the guidance however was also that it was not to vary, suspend or alter the contractual obligations of landlords and tenants. 

49.      The only other issue raised by the landlord was a declaration about the droit de gage.  By the time of oral argument, it was not an issue that the droit de gage applied to movables in the Cinema and applied to at least one year's arrears of rent.

The defendant's submissions

50.      Advocate Cook for the defendant made the following submissions: -

51.      Firstly, he reminded me of the applicable summary judgment principles summarised by the Court of Appeal in HRCKY Limited v Hard Rock Limited [2019] JCA 123 at paragraphs 59 and 60.  He also reminded me of the quote from the 2017 White Book referred to at paragraph 164 of Holmes v Lingard & Ors [2017] JRC 113 that "the standard of proof required of the respondent is not high" to defeat a summary judgment application.  He further emphasised that a summary judgment hearing should last hours, not days. 

52.      In relation to difficult issues of law, he contended that these should be decided at a trial and not on the basis of assumed or hypothetical facts (See Barrett v Enfield LBC [2001] 2 AC 550 (2)).  The question he argued, that should be referred to the Royal Court, was what Jersey law is in relation to issues of force majeure.  By reference to the article Frustration and Hardship in Commercial Contracts:  A Comparative Law Perspective by Fairgrieve and Langlois Jersey and Guernsey Law Review 2020, the scope of the doctrine of force majeure and its applicability in the 21^st Century justified a Royal Court hearing.  Advocate Cook was therefore critical of the landlord's approach of applying UK law when Pothier provided a clear answer to the present application.  Pothier in particular recognised by reference to the sixth principle in his Traité du Contrat de Louage that there could be a temporary suspension of the payment of rent where the lease was affected by a cas fortuit/force majeure. 

53.      In particular, Advocate Cook relied on the commentary at paragraphs 145, 146 and 148 of Pothier's Traité du Contrat de Louage.

54.      Paragraph 148 provides as follows: -

"148. Quelle que soit la cause qui empêche le locateur de pouvoir faire entrer le locataire en jouissance de la maison, le locataire, tant qu'il n'entre pas en jouissance, n'en doit pas les loyers ; putà, si au temps que le locataire doit entrer dans la maison, la ville où est la maison se trouve assiégée par les ennemis, ou infestée de la peste, le locataire qui se trouve hors de la ville, et qui par conséquent ne peut entrer en jouissance de la maison dont l'accès lui est fermé par la guerre ou par la peste, n'en doit pas les loyers."

"Whatever the cause which prevents the landlord from enabling the tenant to enter into possession of the house, the tenant, in so far as he does not enter into possession does not owe any rent; for example, if at the time when the tenant was due to enter into the house the town where the house is situated is besieged by an enemy army, or infested by plague, a tenant who, finding himself outside the town, and is thus not able to enter into possession of the house, access to which has been barred by the war or the plague, does not owe any rent for it."

55.      Where a tenant had initially been granted possession, a subsequent force majeure could also lead to the obligation to pay rent being suspended.  This was clear from paragraph 149 which provides as follows: -

"149. Suivant les mêmes principes, lorsque le locataire, après être entré en jouissance de la maison, est, par quelque force majeure, contraint d'en déloger, il cesse d'en devoir les loyers depuis le jour qu'il a été contraint de déloger."

"149. In accordance with the same principles, when the tenant, after having entered into possession of the house, is, by some force majeure, forced to move out, he ceases to be liable to pay from the day that he is forced to move out."

56.      The central commentary was then found at paragraphs 152 as follows: -

"152. Pour appliquer le sixième de nos principes aux baux à loyer des maisons, supposons que j'ai loué à quelqu'un une auberge sur la grande route .. et que depuis et pendant le temps du bail, la grande route a été changée, de manière que cette auberge, qui était très fréquentée, ne se trouvant plus sur la route, est devenue déserte: en ce cas, quoique le locataire jouisse de toutes les parties de la maison, il est fondé à demander une diminution du loyer, la jouissance de cette auberge souffrant, par le changement de la route, une altération et une diminution très considérables.

Mais si lors du bail, mon auberge que j'ai louée à un aubergiste, était la seule auberge d'un lieu; que pendant le cours du bail il se soit établi d'autres auberges dans ce lieu, qui diminuent beaucoup le profit, que mon locataire faisait dans l'auberge que je lui ai louée, peut-il me demander une diminution de loyer? Non. La raison de différence est, qu'il était facile de prévoir qu'il pouvait s'établir d'autres auberges dans le lieu; mon locataire, en prenant mon auberge, a dû s'y attendre; au lieu qu'on ne pouvait pas prévoir le changement de la route. Cette question est semblable à celle qu'agite Caroccius, si un meunier est fondé à prétendre diminution de la ferme du moulin qu'on lui a loué, parce que, depuis le bail, d'autres meuniers ont fait construire d'autres moulins dans le voisinage ; et il décide qu'il n'y est pas fondé."

"152. Applying the sixth of our principles to leases of houses, let us suppose that I have let to someone an inn on a main road, and that since the start and during the period of the lease, the route of the main road has been changed, such that this inn, which had been very well frequented, but which is now no longer situated on the road, has become deserted: in this case, although the tenant enjoys possession of all parts of the house, he is entitled to a reduction in rent, the enjoyment of the inn suffering, as a result of the change in the route, a very considerable alteration and a very considerable reduction.

But if at the time of entering into the lease, my inn, which I rented to an innkeeper, was the only inn in a place; that during the course of the lease other inns are established in this place, which greatly diminishes the profit that my tenant made in the inn that I rented to him, can he demand from me a reduction in rent? No. The reason for the difference is that it was easy to foresee that other hostelries could be established in the place; my tenant, on taking my inn, should have anticipated it; on the other hand, one could not foresee the change of route. This question is similar to that which agitated Caroccius, if a miller is justified in claiming a diminution in rent of the mill that has been leased to him, because, since the lease, other millers have had other mills built in the neighbourhood; and he decides that the miller is not entitled to make such a claim."

57.      Advocate Cook accepted that the discussion at paragraph 152 was not easy to apply but contended this was why the case was one that required a trial in the Royal Court.

58.      He argued that there was no material difference between Pothier's example of the loss of a business of an inn caused by the action of the authorities and the lockdown measures taken by the States Assembly and the Minister.  The measures taken in Jersey prevented the defendant from operating the Cinema, and so the requirements of force majeure were met.  The obligation to close could not have been resisted; nor could the effect of the Pandemic.  The threshold in Pothier of the alteration and circumstances leading to a loss of business was met because the effect of the pandemic was clearly "tres considérables".

59.      Advocate Cook accepted, as he had to, that it was possible for a landlord and tenant to contract out of the risks of force majeure, so long as this has been expressly agreed.  (See paragraph 178 of Part 3 Chapter 1 of the traité du contrat de louage) as follows: -

"178. S'il a été expressément convenu que le fermier ne pourroit prétendre aucune diminution de sa ferme pour quelque accident que ce fut, cette convention est valable"

"178. If it has been expressly agreed that the farmer cannot claim any reduction in rent on account of any accidental eventuality whatever, this agreement is valid. . . ."

60.      The rationale for this is explained by Pothier as follows: -

"Cette convention, quoique valable et permise, étant contraire à la nature du bail à ferme, ne se présume pas facilement. De là naît la décision de la question, si par la clause portée dans le bail, que les fermes seront payées sans aucune diminution, le fermier est cense se charger du risque des accidents qui causeroient la perte totale des fruits? La raison de douter est que, si la clause n'est pas entendue en ce sens, elle sera superflue et n'aura aucun effet."

"This agreement, although valid and permitted, being contrary to the nature of the lease of farms, is not easily presumed. From this follows the answer to the question whether, by a clause in the lease to the effect that rent will be payable without any deduction, the farmer is deemed to take the risk of accidents which cause the total loss of his fruits? The reason to doubt that he can is that, if the clause is understood in this sense, it would be superfluous and of no effect. It is one of our rules of interpretation that clauses must be interpreted in the sense which gives them an effect, rather than in one which would give them no effect; Traite des Obligations, n. 92."

61.      Advocate Cook argued that the obligation in Clause 3.1.(a) of the sub-lease was too generic and not sufficient to exclude the principle recognised by Pothier.  He argued there was not enough clarity in the clause.  He argued that the language of any agreement to exclude any reliance on Pothier would have to make it clear that a tenant was obliged to pay even if premises were closed due to legislative change imposed because of an act of force majeure.

62.      Clause 3.14 of the lease which required the defendant to comply with all statutory and other legislation requirements did not prevent the defendant from relying on the principle recognised by Pothier's Traité du Contrat de Louage in respect of unforeseen legislation at least following on from an act of force majeure.

63.      In relation to why his client had made offers if the obligation to pay rent was suspended according to Pothier, Advocate Cook recognised the court had the power to say that something might be due but that was still a determination that required a Royal Court trial.

64.      A trial was also required to determine whether the restrictions which limited the ability of the defendant to operate in practice was sufficient for there to be a temporary suspension of rent.

65.      The fact that the principles in Pothier's  Traité du Contrat de Louage had not been cited in any case before the Royal Court did not mean they did not form part of the law of Jersey.  Given that other parts of the Traité du Contrat de Louage had been cited before the Royal Court, it was not appropriate to say that these particular principles had fallen out of usage.  In relation to the 1940 Law relied on by Advocate Kelleher, this piece of legislation did not mean that the Traité du Contrat de Louage was not part of Jersey's customary law.  The 1940 Law was a particular scheme to deal with the issues at hand at that time.

66.      In relation to the UK cases, there was now a scheme in force in the UK to deal with tenants' obligation to pay rent during periods affected by the pandemic which focused on the inability of a tenant to pay. Such cases were now referred to arbitration rather than being determined by the courts.  The cases therefore no longer reflected the approach being taken in England. At present there was no equivalent legislative scheme in Jersey which is why reliance on the sixth principle in Pothier was important.

67.      In relation to the Jersey Practice Direction referred to above, this was relevant to the court having a discretion.  In exercising its discretion, the court could take into account the conduct of the parties in negotiation in determining what rent was payable.  In that regard the Bank of New York Mellon was distinguishable because the same Practice Direction did not exist in England.

68.      In relation to the implication of a term, the fundamental term to be implied was that rent was not payable when the defendant could not use the Cinema.  This term could be implied even though there was no express warranty from the landlord that the Cinema could be used as such.  This was effectively giving effect to a temporary suspension as recognised by Pothier on the basis of an implication of a contractual term.

69.      In relation to the failure to obtain insurance cover Advocate Cook relied on his skeleton argument which contended that the landlord was solely responsible for arranging that adequate insurance was in place to protect against any loss including any inability to pay rent.

70.      In relation to the reliance on equité, again this was relevant to the Royal Court's exercise of its discretion including having regard to the Government of Jersey's guidance, which the landlord had not adhered to even though it was owned by the Public of Jersey through the Government of Jersey.

Decision

71.      The starting point for my decision is the applicable legal principles on a summary judgment application which Advocate Cook helpfully reminded me of. I am however very familiar with these principles having applied them in a number of decisions.  Nevertheless, given the importance of this decision to the parties, I set out the applicable principles as summarised at paragraphs 59 and 60 of the Hard Rock decision as follows: -

"59. At paragraph 18 of his judgment giving the Appellant leave to appeal the judgment of the Royal Court of 1ª February 2018, McNeill JA helpfully set out the test which is to be adopted by the Court on an application for summary dismissal. In essence the principles are those set out by Lewison J in Easyair Limited y Opal Telecom Limited [2009] EWHC 339 (Ch) at paragraph 15:-

"(i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 2 All ER 91;

(ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8];

(iii) In reaching its conclusion the court must not conduct a "mini- trial": Swain v Hillman;

(iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases, it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED& F Man Liquid Products v Patel at [10];

(v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application of a summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;

(vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Limited v Bolton Pharmaceutical Co 100 Limited [2007] FSR 63;

(vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form or documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals& Polymers Limited v TTE Training Limited [2007] EWCA Civ 725."

60. On a procedural application of this kind it is important to note, as we set out at paragraph 2 above that the Court will not make findings of fact. However, the Court will look at the affidavit evidence, both in support and in defence of an application for summary dismissal, to identify the extent to which facts are materially in dispute and whether the facts upon which a party relies in this procedural application are consistent with what may be described as the hard facts revealed by agreed documents. The analysis which flows from that review will indicate the extent to which it is safe for a court to exercise its jurisdiction to order a summary dismissal and by contrast will enable the Court to identify those cases which ought to go to trial so that evidence as to the material facts can be adduced and challenged in the usual way.""

72.      I also agree with Advocate Cook that in relation to points of law the court should only give summary judgment on a legal issue if it is satisfied that the point of law is unarguable. 

73.      It is also accepted on a summary judgment application that the court may be satisfied on a short point of construction that a defendant's assertions are misconceived or plainly unsustainable (See Hard Rock case again and CoreFocus Consulting Limited v Cronk [2013] JRC 194).

74.      The other relevant principle under Rule 7 of the Royal Court Rules 2004, as amended, is that a summary judgment application under Rule 7/1(1)(b) may be refused if there is some other compelling reason why the case or issue should be disposed of at a trial.  What was by meant by other compelling reason was considered by Commissioner Hunt in C.I. Trustees and Executors Limited and Killmister v Sinels Advocates and Carey Olsen [2017] (2) JLR 1 where he stated as follows: -

"38     I was referred to Zuckerman on Civil Procedure: Principles of Practice, 3rd ed., para. 9.48, at 379 (2013), which reads as follows:

"However, the fact that the summary judgment will not dispose of the whole of the case, may in certain situations lead the court to conclude that it would be better for the whole matter to go forward to trial. The appropriateness of summary judgment will depend in such situations on the extent to which it is likely to contribute to settlement of the remaining issues or to their expeditious and economical disposal."

In Iliffe v. Feltham Constr. Ltd. (9), the Court of Appeal allowed an appeal against the grant of summary judgment in favour of the claimant. Jackson, L.J. (with whom the other two members of the court agreed) said as follows ([2015] EWCA Civ 715, at paras. 72-73):

"72     When I stand back from the detail and look at this case in the round, I conclude that as of 20 June/3 July 2014 the position as to causation of the fire was not so clear as to justify the grant of summary judgment on liability in favour of the claimants. Also, I think it was inappropriate to do so when similar issues remained to be determined at a full trial as between the other parties. In the particular circumstances of this case that constitutes a 'compelling reason' not to enter summary judgment within the meaning of CPR

24.2(b). A judge in multi-party litigation must aim to do justice as between all parties involved in the case.

73       A further significant feature is that summary judgment in this case achieves much less in terms of saving costs and court time than is normal. There is going to be a trial anyway at which extensive factual and expert evidence will be called in order to establish (a) what caused the fire, (b) who is responsible. The claimants will have to participate in the trial, because they need to prove the quantum of their damages.""

75.      These are the principles that I have applied.

76.      In relation to how I have applied these principles I propose to determine them by reference to the issues identified at paragraph 22 of Advocate Kelleher's written submissions for the landlord, set out at paragraphs 22 and 23 above.

Issue 1- Supervening illegality and Temporary Suspension of Obligation

77.      In relation to this issue, it is clear from the English authorities quoted to me in particular the Bank of New York Mellon case that the arguments raised by the defendant have been raised in England in relation to leases where there is no material difference between the terms of those leases and the terms of the sub-lease in relation to the Cinema.  Accordingly, the defendant's arguments would not prevail in England. 

78.      In that regard I add for the sake of completeness that, subsequent to oral argument but prior to the handing down of this judgment, the Court of Appeal of England and Wales issued its judgment in the Bank of New York Mellon and London Trocadero cases which appeals were both dismissed.  The judgment of the Court of Appeal focused on two grounds in respect of both appeals namely whether the imposition of government restrictions imposed as a consequence of the Pandemic caused "a failure of basis" relieving the defendant from the obligation to pay rent for those periods and secondly the implied term argument that the defendant should be relieved of the obligation to pay rent where the defendant could not use the premises leased as a cinema.  In addition, in relation to the Bank of New York Mellon appeal there was an argument about the effect of the rent cesser clause in that lease.  I refer to this judgment later in this decision.

79.      As a starting point, it is right to observe that the defendant did not argue that there had been a total frustration of the lease.  This is not surprising because the lease was granted for 35 years in 2002 and the period of time when the Cinema was closed by reference to the pandemic was some 14 months. 

80.      The doctrine of frustration of English law was explained at paragraph 195 of the Bank of New York Mellon judgment at first instance as follows: -

"195. Frustration is a doctrine which generally provides that where an wholly unexpected event, for which the parties had not made an agreement, occurred which sufficiently affects the contract so as to in some way negate (i.e. frustrate) its purpose, then the contract will be discharged and end."

81.      This judgment then cited at paragraph 198 a passage from the judgment of Lord Hailsham in National Carriers V Panalpina [1981] AC 675 on the effect of frustration as follows: -

""Apart from the Law Reform (Frustrated Contracts) Act 1943 , the doctrine of frustration brings the whole contract to an end, and in the present case, apart from any adjustment under that Act and any statutory right to compensation under the closure order, the effect of frustration, had it been applicable, would have been to throw the whole burden of interruption for 20 months on the landlord, deprived as he would be of all his rent and imposed as he would have upon his shoulders the whole danger of destruction by fire and the burden of reletting after the interruption. As it is, with the same qualification as to possible compensation, the tenant has to pay the entire rent during the period of interruption without any part of the premises being usable at all, together with the burden (such as it may be) of the performance of the other tenant's covenants which include covenants to insure and repair. These are no light matters.""

82.      Paragraph 207 of the Bank of New York Mellon judgment cited Canary Wharf v European Medicines Agency [2019] L&TR 14 as follows: -

""Whether a contract is frustrated depends upon a consideration of the nature of the bargain of the parties when considered in the light of the supervening event said to frustrate that bargain. Only if the supervening event renders the performance of the bargain "radically different" when compared to the considerations in play at the conclusion of the contract will the contract be frustrated.""

83.      This led to the conclusion at paragraph 209 that there could not be frustration of the lease in that case as a matter of English law.  I have set out the above conclusions because the judge then went on to consider why there had not been a temporary frustration leading to the following conclusion at paragraph 211: -

"211. However, I do have to deal with SportsDirect's arguments that there has been a "temporary frustration". It seems to me that, arising from the matters above, there are two combined reasons why the Tenants have no real prospects of establishing such to have been or be the case, being:

a. First, that there is no such thing as a "temporary frustration", effectively suspending the contract for a period of time, in law. Both Treitel and the case-law, in particular my initial citations from Panalpina, make clear that frustration has the effect of discharging the contract and ending it. That is one reason why such a "radical difference" has to exist. Frustration does not suspend the contract, rather it terminates it and so that it does not subsequently revive. What the Tenants are seeking to do is to introduce one possible version of the flexibility that Lord Simon said would require statute. There is no case-law as to general "temporary frustration" (I consider the question of "supervening event" separately below);

b. Second, in order to have a "temporary frustration" there could not be a "full frustration". However, the doctrine of frustration is dependent on a "radical difference" having occurred which renders it unjust for the contract to continue. It is difficult to see how, whereas here (see above), such a sufficient "radical difference" does not exist, there can be any frustration at all. If there could be such a temporary frustration, then Panalpina would have been a classic case of it and would have been decided differently. The same applies in these cases." (Emphasis Added)

84.      Under English law therefore the defendant's argument there had been a temporary frustration would not succeed.  It is noteworthy that the temporary frustration argument was not pursued before the Court of Appeal.

85.      However, the position in Jersey is not necessarily the same in relation to contract leases because of the sixth principle of Pothier's traité du contrat de louage set out at paragraph 34 above.

86.      This principle has not been referred to or considered by the Royal Court but, as Advocate Cook set out in his skeleton at paragraph 24, there are numerous other authorities where the court has cited with approval extracts from Pothier's traité du contrat de louage.  It is not therefore fanciful or improbable that the sixth principle referred to and relied upon by the defendant may form part of the law of Jersey. 

87.      Whether it in fact does so or whether the more general approach taken in the traité des obligations referred to by Advocate Kelleher should apply is not an argument appropriate to determine on a summary judgment application.  This is clearly a developing area of law and how Jersey law might choose to apply that principle in the 21^st Century having regard to the words of Sir Michael Birt in the Hong Kong Foods Limited case set out at paragraph 38 above is not a matter for me to determine on this application.  The question of when the principle might apply and how Pothier's example of an inn no longer being able to be used because of a decision taken by local authorities is applicable in the 21^st Century to a complex commercial lease is not for determination under Rule 7.  Likewise, even when the Cinema could be open in the latter part of 2020 and from April 2021, whether the effect of any orders or regulations in force from time to time amounts to a temporary suspension is also a matter that would require a trial to be determined. 

88.      However, that is not the end of the argument because, assuming in the defendant's favour that the principles it seeks to rely on do form part of Jersey law, Advocate Kelleher's position is that the terms of the lease in particular Clauses 3.1(a) and 3.14 mean that the defendant cannot rely on the sixth principle in Pothier because the defendant has as a matter of contract law agreed to pay rent and "not to exercise or seek to exercise any right or claim to withhold rents" (Clause 3.1(a)) and has assumed the risk that it has to comply with all statutes or other regulations (Clause 3.14).  I will deal with each of these arguments in turn.

89.      In relation to the effect of Clause 3.1(a), this is a straightforward clause and one therefore which can be construed under a summary judgment application applying Corefocus.  The construction question I have to determine is whether this provision is sufficient to exclude any reliance on the sixth principle of Pothier that the defendant seeks to invoke.

90.      Pothier himself recognises, as set out at paragraph 178 quoted at paragraph 60 above that it is possible to expressly agree that rent is payable whatever might happen to a tenant (using the example of a lease of a farm).  If there is such a clause, the tenant then bears the risk of any unforeseen accidents.

91.      Pothier also recognises, consistent with Jersey decisions on construction of agreements, that any such clause has to be strictly construed.  In such clauses, any agreement that rent is payable whatever occurs in the future also has to be an express provision and cannot be implied or inferred.

92.      In construing Clause 3.1(a) it is right to look at the context namely that the lease is an arm's length commercial lease negotiated between the landlord on the one hand which, inter alia, is responsible for development of the Waterfront and is therefore a sophisticated commercial entity and the defendant on the other which operates a number of Cinemas in the UK and is also a sophisticated commercial entity. 

93.      In my judgment, the reliance by the defendant on the sixth principle of Pothier is the defendant seeking to exercise a right to withhold rent on the basis that the rent is not payable because of the COVID Pandemic as an unforeseen event and so falls within Clause 3.1(a).  The wording in Clause 3.1(a) could not be broader; what the tenant has agreed to, and this is where the sophistication of the defendant is important, in a complex commercial lease is that that the defendant will not assert any right or claim to withhold rent.  Adding words after "claim" such as (including in cases of force majeure) are clarificatory only and do not mean that the language used in the lease was not broad enough to exclude the claim to withhold rent that the defendant now wishes to adopt.  The terms of Clause 3.1(a) could have been qualified to say "save in cases of force majeure" but did not do so.  The defendant has therefore agreed not to bring any claims to withhold rent; yet the present answer and the reliance on Pothier's sixth principle seeks to do exactly that and so is caught by Clause 3.1(a).

94.      While therefore the arguments about the application of the sixth principle of Pothier in the traité du contrat de louage are of interest and may be applicable to other leases, in this case the argument does not arise because the defendant has already agreed contractually by reference to Clause 3.1(a) not to bring any claim to withhold rent.  The defendant cannot now resile from the contractual bargain reached.

95.      In addition, by Clause 3.14, the defendant has agreed to comply with all "statutes, statutory instruments, by-laws and regulations issued by any Insular Parochial Statutory or regulatory authority".

96.      In reaching a view on the meaning of Clause 3.14, it is also important to bear in mind that Clause 4.8 headed "No Warranty" means that there is no assurance or promise from the landlord that the premises leased can lawfully be used as a cinema.  This means that the risk that the premises cannot be so used falls upon the defendant.  All the landlord has promised is "quiet enjoyment".  The imposition of restrictions by the States of Jersey or the Minister is not a breach of the quiet enjoyment covenant.  This is why the defendant has to bear the risk of any legislation preventing it from using the Cinema, whether because a total closure is ordered or whether any regulations made it commercially unviable for the defendant to open the Cinema. 

97.      The defendant's position is also effectively the same argument that was considered by the English Court of Appeal in the Bank of New York Mellon case where the tenant argued that there had been some form of failure of basis.  This led to the following conclusions at paragraph 149 and 150 of that judgment: -

"149. In the case of the leases in the present cases, it is clear that the consideration for the obligation to pay rent was the demise of the premises for, in each case, a 35 year term, giving the tenant exclusive possession. Mr Seitler QC accepted that that consideration or basis had not failed but submitted that there was more than one basis and that the common understanding or assumption that the premises could be used lawfully as a cinema was also a fundamental basis for the obligation to pay rent and that that basis had failed.

150. The difficulty with this argument was identified by Sir Nicholas Patten during the course of argument, which is that, whereas in cases like Barnes and Roxborough there was some wider arrangement which gave rise to an extraneous or extra-contractual understanding the operation of which did not subvert the contract, in the present case there was no wider context, but only the letting of the premises on the terms of the leases."

98.      The Court of Appeal also reached the following conclusion: -

"152. Focusing on the terms of the Trocadero 1994 lease, clause 5.2, the cesser of rent clause, is a complete code as to the circumstances in which the obligation to pay rent is suspended, which is limited to where there is physical damage to or destruction of the premises caused by an insured risk. The lease clearly contemplates that there may be circumstances where it is not lawful to use the premises for the Permitted Use (specifically clause 3.16 and the sixth schedule) but there is no suggestion in the terms of the lease that there should be a cesser of rent in those circumstances. If the parties had intended that there should be, they could and would have included it in clause 5.2. They did not and, in those circumstances, the covenant to pay rent in clause 3.1 continues to apply."

99.      In the present case the landlord has therefore persuaded me that there is no difference between the conclusions in England at first instance and confirmed by the Court of Appeal and the present case.  In view of the clear terms of the lease, the defendant in the present case has agreed to pay rent without any qualification (other than in respect of the Rent Suspension clause referred to later in this judgment) and has agreed to comply with any legislation again without qualification.  In the absence of any express warranty from the landlord that the premises may be used as a cinema, the defendant cannot rely on Pothier to escape the contractual agreements it has adhered to.  The lease of the Cinema is a code as to when rent is payable.

100.   I should add in that regard that the suggestion that the market rent of the Cinema fell to zero while the Cinema could not open or because, according to the defendant, it was effectively prevented from operating the Cinema was a hopeless argument in light of the clear provisions of the lease at clause 7.2.1 set out above.  The terms of the lease clearly set out that any rent review was upwards only.  If the market rent was less than the rent payable at the date of any review, then there would simply be no increase.  Nothing in Pothier alters the clear terms the parties had agreed.

101.   In light of these conclusions, I now turn to consider the remaining issues raised by the defendant.

Issue 2 - Operation of the Insurance and Rent Cesser Provisions

102.   This issue was also dealt with in the Bank of New York Mellon case at first instance where the court reached the following conclusions at paragraph 127 as follows: -

"a. In relation to the Tenant's construction that they are triggered by non-physical disadvantage to the Premises (said to result in the Premises being "damaged"):

i.         That is not the natural meaning of the words either on their own or in context, and involves a breach of the consistency principle

ii.        They are consistent with a possible commercial purpose but do not represent the main thrust of the provisions

iii.       They are not required to protect the Tenant in a commercial sense, in that alternative protections by way of turnover BII policies were always potentially available

iv.       They are somewhat novel in that it has not been suggested previously that these standard-form clauses can be triggered by purely non-physical matters

b. In relation to the Landlord's construction that they are only triggered by physical damage to or destruction of the relevant Premises:

i. This is the ordinary meaning of the words used both on their own and in context and accords with the consistency principle

ii. They are consistent with a possible commercial purpose. Although it can be argued that there are possible anomalies it is, at worst, unclear that they are really anomalies

iii. They are consistent with the general thrust of these provisions which are to deal with the "bricks and mortar" and "property owner" aspects of the matter where the Landlord and Tenant interests combine and align."

103.   The judge also stated the following at paragraph 130 as follows: -

"the Tenants' constructions of the Rent Cesser clauses simply do not fit the words used either taken alone or in their context or as otherwise used in the Leases, whilst the Landlords' constructions do fit the words used in all those aspects."

104.   In the Court of Appeal, the court's conclusions are found at paragraphs 126, 127 and 128 as follows: -

"126. I will consider first the issue of the rent cesser clause in the Hengrove lease, which is an issue as to the construction of the terms of that lease. Despite the ingenuity of Mr Seitler QC's argument, I consider that the cesser clearly only operates where there is physical damage or destruction by an Insured Risk. Clause 7.4 says: "In case the Property ... shall ... be destroyed or damaged by any of the Insured Risks", the clause then continues: "so as to render the Property unfit for occupation or use". On their natural and ordinary meaning, those words are only apt to describe unfitness caused by such physical damage or destruction. That is made clear by the later words of the clause which state that the cesser continues until: "the Property shall have been made fit for occupation and use" and by the proviso which gives the tenant the liberty to terminate the lease if the landlord cannot: "rebuild or reinstate the Property within a period of three years", Thus, the clause taken as a whole only contemplates unfitness for occupation or use caused by physical damage or destruction of the property which may require rebuilding or reinstatement.

127. Mr Seitler QC argued that the word "damage" was broad enough to include financial or non-physical damage such as was caused by the Government restrictions imposed during the pandemic. In my judgment, there are a number of problems with that argument. First, as Snowden LJ pointed out during the course of argument, it cannot be said that the Property, which is not a legal entity, has suffered financial or economic damage: rather it is the Hengrove tenant which has suffered that damage. However, the wording of the clause makes it clear that the relevant damage or destruction has to be to "the Property". Second, even if that hurdle could be overcome, whilst "damage" taken in isolation could refer to non-physical financial damage, in the context of the clause as a whole it clearly does not. The juxtaposition of "damage" with "destruction" points to this being physical damage and this is borne out by the fact that the damage or destruction must render the property "unfit for occupation or use". The concepts of fitness or unfitness for occupation or use point to physical problems or constraints at the property. Contrary to Mr Seitler QC's argument, it is simply not apt to describe the premises as unfit for occupation or use where they are perfectly fit physically for occupation or use, but the Coronavirus restrictions have made it unlawful for the Hengrove tenant to use them. As I have said, that the clause is concerned with physical damage or destruction caused by Insured Risks is also borne out by the reference to the inability to rebuild or reinstate the property within three years in the proviso. Mr Seitler QC was driven to submit that the proviso was simply inapplicable where the damage was economic such as caused by the pandemic, but there is nothing in the wording of the proviso to suggest that it is only applicable if one type of damage occurs but not another.

128. Furthermore that the cesser of rent clause is concerned only with physical damage or destruction caused by Insured Risks is borne out by clause 7.3 which is headed: "Destruction of the Property" and begins: "if the Property or any part thereof is destroyed or damaged by any of the Insured Risks and requires the insurance monies to be laid out in the rebuilding and reinstatement of the Property". That provision is clearly limited to where there is physical damage or destruction. Whilst it is of course theoretically possible for a phrase used in several places in a contract to have a different meaning depending on the context, in this case clauses 7.3 and 7.4 follow one another and it is quite clear that "destroyed or damaged" in each clause means the same."

105.   In relation to whether the landlord should have insured against the Pandemic forcing closure of a Cinema, the Court of Appeal also stated at paragraph 132: -

"The Hengrove tenant could have taken out a business interruption insurance of its own which protected it against the risk of disease. It did have a business interruption policy, but it excluded pandemics."

106.   I have set out these provisions in detail because I see no reason to reach a different conclusion in relation to the arguments advanced by the defendant in this jurisdiction.  The obligation on the landlord is contained in Clause 6.1 and is to insure against Insured Risks and such other risks the landlord may from time to time reasonably deem appropriate in the sum "equal to the likely cost of completely rebuilding reinstating and replacing the same..."

107.   The definition of Insured Risks set out above clearly also relates to risks which will cause physical damage to or destruction of the Cinema.  This means that, even if the landlord had chosen to insure against other risks, which I conclude is the landlord's choice, (as long as that choice is deemed to be reasonably appropriate), those other risks can still only relate to the likely cost of completely rebuilding, reinstating and replacing the Cinema.  If therefore the landlord had chosen to insure against other risks that did not relate to the likely cost of rebuilding, reinstating or replacement, the defendant would not be obliged to pay for such insurance.  The defendant is only obliged to pay for insurance of the Insured Risks and other risks relating to rebuilding/replacing or reinstating the Cinema.

108.   This conclusion is entirely consistent with the rent suspension provision in Clause 6.3 which operates where the Cinema has been "destroyed or damaged by any Insured Risk".

109.   I also agree with Advocate Kelleher that there was nothing in the lease which prevented the tenant from obtaining its own business interruption insurance as was recognised in the first instance and the Court of Appeal in the Bank of New York Mellon decision.  The only insurance the defendant cannot take out is in respect of matters that the landlord is required to insure.  That is to prevent the risk of double insurance and is entirely understandable because if there are two policies covering the same risk then there would be an argument about which insurer would have to meet the cost of any particular risk that came to occur and in what proportions.   Any business interruption policy would not however be a breach of the lease as the landlord was not required to obtain such cover with the result that the defendant was free to do so.

110.   While therefore I agree with Mr Kevin Frost by reference to paragraph 33 of his affidavit that the landlord could have taken out insurance against the risks of a Pandemic, that insurance would be for the landlord's own benefit and not an insurance that could be charged to the defendant as a tenant.  Advocate Kelleher's point therefore that the defendant as tenant could have taken out its own insurance provision is compelling and in my judgment is unarguable.

111.   In respect of the arguments that the landlord should have obtained insurance, in summary, this is a straightforward question of construction having regard to the terms of the lease.  My construction of the terms of this lease is the same as that reached in England in relation to provisions which are fundamentally no different.  The arguments under this heading therefore fail.  The landlord did not fail to properly insure the Cinema and did not breach the terms of the lease.

Issue 3 - Implied terms generally as to suspension of rent

112.   In relation to the applicable principles as to when the terms are implied, Jersey law has generally adopted English case law regarding the implication of terms (See Grove and Briscoe v Baker supra applying the English case of Liverpool City Council v Irwin [1977] AC 239).

113.   An updated review of the principles to be applied has been articulated by the Supreme Court in Marks and Spencer Plc v BNP Paribas Securities Services Trust Co. (Jersey) Ltd & Ors [2016] AC 742.  The head note at paragraph 1 to the Marks and Spencer judgment states as follows: -

"... that a term would be implied into a detailed commercial contract only if that were necessary to give the contract business efficacy or so obvious that it went without saying; that the implication of a term was not critically dependent on proof of an actual intention of the parties when negotiating the contract but was concerned with what notional reasonable people, in the position of the parties at the time at which they had been contracting, would have agreed; and that it was a necessary but not sufficient condition for implying a term that it appeared fair or that the court considered that the parties would have agreed it if it had been suggested to them."

114.   The Supreme Court at paragraph 18 and 21 stated the following: -

"18 In the Privy Council case BP Refinery (Westernport) Pty Ltd y Shire of Hastings (1977) 180 CLR 166, 283, Lord Simon of Glaisdale (speaking for the majority, which included Viscount Dilhorne and Lord Keith of Kinkel) said that:

"for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.""

"21 In my judgment, the judicial observations so far considered represent a clear, consistent, and principled approach. It could be dangerous to reformulate the principles, but I would add six comments on the summary given by Lord Simon in the BP Refinery case 180 CLR 266, 283 as extended by Bingham MR in the Philips case [1995] EMLR 472 and exemplified in The APJ Priti [1987] 2 Lloyd's Rep 37. First, in Equitable Life Assurance Society v Hyman [2002] I AC 408, 459, Lord Steyn rightly observed that the implication of a term was "not critically dependent on proof of an actual intention of the parties" when negotiating the contract. If one approaches the question by reference to what the parties would have agreed, one is not strictly concerned with the hypothetical answer of the actual parties, but with that of notional reasonable people in the position of the parties at the time at which they were contracting. Secondly, a term should not be implied into a detailed commercial contract merely because it appears fair or merely because one considers that the parties would have agreed it if it had been suggested to them. Those are necessary but not sufficient grounds for including a term. However, and thirdly, it is questionable whether Lord Simon's first requirement, reasonableness, and equitableness, will usually, if ever, add anything: if a term satisfies the other requirements, it is hard to think that it would not be reasonable and equitable. Fourthly, as Lord Hoffmann I think suggested in Attorney General of Belize v Belize Telecom Lid [2009] I WLR 1988, para 27, although Lord Simon's requirements are otherwise cumulative, I would accept that business necessity and obviousness, his second and third requirements, can be alternatives in the sense that only one of them needs to be satisfied, although I suspect that in practice it would be a rare case where only one of those two requirements would be satisfied. Fifthly, if one approaches the issue by reference to the officious bystander, it is "vital to formulate the question to be posed by [him] with the utmost care", to quote from Lewison, The Interpretation of Contracts 5th ed (2011), p 300, para 6.09. Sixthly, necessity for business efficacy involves a value judgment. It is rightly common ground on this appeal that the test is not one of "absolute necessity", not least because the necessity is judged by reference to business efficacy. It may well be that a more helpful way of putting Lord Simon's second requirement is, as suggested by Lord Sumption JSC in argument, that a term can only be implied if, without the term, the contract would lack commercial or practical coherence."

115.   I regard these observations as a helpful refinement of the law of Jersey as to when terms should be implied and have followed them in reaching this decision because they are not inconsistent with the Jersey cases on implication of terms.

116.   These principles were applied in the Bank of New York Mellon case at first instance at paragraphs 140 to 149 as follows: -

"140. I do consider that the implied term suggested by the Tenants would have been fair and reasonable and equitable. While it could prejudice Insurers who might find themselves with an insurance liability which they had not contemplated, it is for them to obtain and consider the relevant Lease(s) and their implied terms just as much as their express terms. One consequence, and indeed point, of the tests for implication is that the implications should be apparent to the reader, they being either obvious or necessary for business efficacy.

141. However, the burden is on the Tenants to show either (or both of) obviousness or necessity for business efficacy.

142. With regard to obviousness, this has to be seen in the context of the Leases being lengthy, standard-form, professionally drafted documents which appear to have been prepared with care and do not contain obvious drafting errors. Further:

a. They go into great detail regarding all sorts of circumstances. Thus, they appear to be comprehensive and, but in conjunction with accepted doctrines of landlord and tenant law (as with the doctrines of apportionment which featured in the Marks & Spencer case), intended to cover the entire legal relationship between the parties. I bear in mind that implication still took place in the lease case of Liverpool v Irwin but that was for reasons of need for business efficacy and not obviousness

b. They include express provisions:

i. as to Rent Cesser and which are limited to circumstances of physical deterioration (see above) even where closure has otherwise occurred as a result of an Insured Risk Event. Such a limitation suggests that closures due to non-physical deteriorations were not intended (or at least agreed) to result in rent cesser

ii. as to the absence of a warranty that the Premises can be used for the Permitted Use. While that is only in a planning context, there is clearly no warranty that the Premises can always be so used

c. This needs to be seen in the common-law context of rent still being payable under a lease notwithstanding the relevant premises becoming unusable (e.g. due to fire) without an agreement to the contrary. If the Tenants wished to negotiate a blanket (as opposed to the limited) term to the effect that rent would not be payable if any Insured Risk Event resulted in a closure, rather than just one with involved physical deterioration (damage or destruction) then they could have done so.

143. It seems to me that the above matters all favour the Landlords. They lead me to conclude that in the circumstances of the officious bystander's hypothetical question, the hypothetical landlord (at least) might well answer that the Lease is intended to set out all the circumstances in which a Rent Cesser would exist even where an Insured Risk Event had occurred.

144. With regard to the Tenants' other points on obviousness based on their having paid the premium for the Insurance where this situation was an Insured Risk Event, it seems to me that they can be countered by similar points to those which I have set out on the construction arguments above, being in summary that:

a. the Insurance provisions are directed towards "bricks and mortar" and freehold (or long leasehold) interest matters regarding to [sic] the Premises;

b. the Landlords are entitled to insure as they choose (at least in relation to additional Insured Risks such as this one which is not specified as such) and if the Insurance gives rise to a resultant benefit then they must bring it into account but not if it does not;

c. questions as to what happens if the Landlords do extend the Insured Risks are really questions for construction and implication of the Insurance provisions not of the Rent Cesser clauses;

d. there is an alternative solution to the Tenants having paid the relevant premium of the Lease being interpreted to the effect that the Landlords are not entitled to so insure and the Tenants should not have to pay (and can recover) the relevant premium or part of the premium.

145. It also seems to me that where the Tenants could have chosen to insure their business and its turnover under their own BII policy, and which would not have been prohibited by the Leases' restrictions on not insuring the Premises themselves, that:

a. There was a clear mechanism by which the Tenants could protect themselves by insurance against adverse non-"bricks and mortar" matters such as COVID; and

b. The Landlords' interpretation of the Leases represents an allocation of risk which is perfectly commercial and reasonable. While there is a force in the Tenants saying that it would be inconvenient for them to obtain a sort of "top-up" insurance which would only operate in certain specific events, that does not make it unreasonable, and such a BII policy could operate in numerous non-"bricks and mortar" circumstances (e.g. failures or destruction of Tenants' computers etc.).

146. Taking all these matters together, I do not think that the "obviousness" test is met. It is not clear to me that the response from the parties, or at least the hypothetical landlord, to the officious bystander's question would be that the implied term sought by the Tenants would "go without saying".

147. However, the Tenants also contend that the implied term is required to give the Leases business efficacy. Again, I do not think that this is the case. The Leases "work" (to cite Lord Clarke in Marks & Spencer) without the implied term, and simply provide for a Rent Cesser in some identified circumstances but not in others, and where the Tenants could perfectly well (and perhaps more appropriately) have insured themselves. The Tenants' points as to their having paid the premium for an Insured Risk of which they cannot take advantage in this instance are met by the points set out above in the context of the "obviousness" argument. At most this is Lord Neuberger (in Marks & Spencer)'s situation of a "curious" and possibly "capricious or anomalous" effect rather than one which is "commercially or otherwise absurd". It does also seem to me that the Tenants' arguments come close to seeking to contradict the actual terms of the Leases where they introduce a specific limitation (physical deterioration) on the existence of a Rent Cesser in the context of a closure due to an Insured Risk Event.

148. The Tenants also contend that this is a situation for an Aberdeen implication in circumstances of a wholly unforeseen and unforeseeable event. I am not convinced that COVID and the COVID Regulations were truly unforeseeable in the light of such matters as SARS and consequent fears, although I accept that they can well be said to be "unprecedented". However, in any event, implication still requires the satisfaction of the obviousness and/or business efficacy tests and I do not find either as being satisfied. This is not, in my judgment, an Aberdeen case where it is clear what both parties would have intended if the potential for these events had been put to or considered by them. It is a classic case for a difference of view (or at least a negotiation) for the potential agreed allocation of risk.

149, I, therefore, do not find the tests for implication of the Tenants' proposed implied Rent Cesser term as having been met, and I do find that the Tenants do not have any real prospects of success of this issue. I note that in Commerz Real, and on the basis of a much shorter analysis (although where there was a "keep open" covenant which is not present in these Leases) Chief Master Marsh came to the same conclusion. I do, however, consider separately below, the Tenants' arguments for something with a somewhat similar effect being implied within the Insurance provisions."

117.   The Court of Appeal's conclusions in the Bank of New York Mellon v Cine-UK Limited & Ors [2022] EWCA Civ 1021 are set out at paragraphs 130 to 140 as follows: -

"130. Mr Seitler QC sought to make much of the fact that, given the definition of "Insured Risks" in clause 2.10, the Hengrove landlord had taken out insurance for risks which were non-physical such as: "strikes and labour disturbances" and if its argument that the cesser of rent clause was limited to physical damage were correct, the tenant had paid for insurance from which it derived no benefit. However, as Mr Fetherstonhaugh QC pointed out, a strike or labour disturbance could very well lead to physical damage to the premises. In any event, even if there were a mismatch between the breadth of the insurance cover and the cesser of rent clause, that would not be sufficient to give to the words of the latter provision a different meaning to that which they clearly bear on the true construction of the lease. The insurance cover and the cesser of rent are not intended to be mirror images of each other. The tenant's interest is noted on the insurance, but it is a separate question whether there should be a cesser of rent.

131. Mr Seitler QC advanced a similar argument in relation to the Murder, Suicide, Disease or Pests extension to the insurance taken out by the Hengrove landlord as an "other insurable risk as may reasonably be required from time to time" within the definition of Insured Risks. He submitted that if the restrictions caused by the pandemic did not lead to a cesser of rent under clause 7.4, the Hengrove tenant will have paid for an insurance from which it has received no benefit.

132. I agree with Mr Fetherstonhaugh QC that this argument essentially overlooks the substance of the insurance effected by the Hengrove landlord. The Murder, Suicide, Disease or Pests extension insured the Hengrove landlord against loss of rent: "resulting from interruption of or interference with the BUSINESS" following an outbreak of the disease. The business was defined as that of the landlord as a property owner. Thus, what the Hengrove landlord was insuring against was a financial loss to its business, not that of the Hengrove tenant. The Hengrove tenant could have taken out a business interruption

133. Despite Mr Seitler QC's argument to the contrary, it is impossible to construe the policy taken out by the Hengrove landlord as protecting the Hengrove tenant from having to pay rent when it could not enjoy the premises. In my judgment, the Master was right to conclude that the insurance cover was for loss of rent to the Hengrove landlord where rent was not payable by the Hengrove tenant by reason of a provision in the lease such as the cesser of rent clause. The policy defines "Rent" as: "the money paid or payable to or by the Insured for tenancies and other charges and for services rendered in the course of the BUSINESS at the PREMISES". Loss of rent cover insures the landlord against a situation where, for example, a tenant does not pay rent and is under no legal obligation to do so. It does not cover the landlord where the tenant chooses not to pay rent, even though it is under an obligation to do so, because the events which have occurred do not fall within the cesser of rent clause. I have little doubt that, if the Hengrove landlord had sought to make a claim against the insurers for the rent which the Hengrove tenant did not pay during the pandemic, the insurers would have rejected the claim on the basis that the tenant was still liable to pay the rent so that the landlord had not suffered a loss of rent within the meaning of the policy at all.

134. In my judgment, it follows that the appeal by the Hengrove tenant in relation to the cesser of rent clause must fail.

135. Turning to the proposed implication of terms, as already noted, the implied term on which Mr Seitler QC focused in the Hengrove appeal was the one in [14F] of the Amended Defence that, where at the tenant's expense the landlord insured against loss of rent arising out of an insured risk involving non-physical damage to the premises, a suspension of rent would apply if the insured risk occurred rendering the premises wholly or partly unfit or incapable of occupation, notwithstanding that no physical damage was caused. As Mr Fetherstonhaugh QC pointed out the Hengrove tenant also contends for the implication of other terms, such as that rent should be suspended because Covid and the Coronavirus Regulations were unprecedented and unforeseen but forced the closure of the premises. It can be seen immediately that these implied terms are an attempt to imply into the Hengrove lease a broader cesser of rent provision than the express clause at clause 7.4 permits.

136. The first implied term for which the Trocadero tenants contend as set out in [57] above is very similar, that if the Permitted Use were to become illegal the obligation to pay rent should be suspended for the period during which the Permitted Use was illegal. That too seeks to imply a cesser of rent provision which is far broader than the express cesser of rent clause 5.2 in the Trocadero lease. The second implied term seeks to limit the payment of rent to periods when the premises could be used as a cinema with levels of attendance commensurate with what the parties would have anticipated at the time that the leases were entered into.

137. Since the judgment of the Master in the Hengrove case, this Court in Yoo Design has restated and summarised the law on implication of terms (as quoted at [55] above). However, it is not suggested that the Master misstated the law. The judge in the Trocadero case cited and applied the summary of the law in Yoo Design.

138. In my judgment, none of the implied terms contended for in the two cases satisfies either the business efficacy test or the obviousness test. Taking the business efficacy test first, as Carr LJ set out at [51(iii)] of Yoo Design, this will only be satisfied where, without the implied term, the contract would lack commercial or practical coherence. That simply cannot be said of the leases in the Hengrove and Trocadero cases. They both work perfectly well without the implied terms. Both leases allocate the risk that the premises cannot be used for their intended purpose to the tenant, so that the tenant is obliged to continue to pay rent where the cesser of rent provisions are not applicable (which on this hypothesis they are not on the present facts) and there is nothing unworkable or incoherent about that allocation of risk.

139. The obviousness test is equally inapplicable. The term which it is sought to imply has to be precisely expressed and must be so obvious to go without saying. If the officious bystander had asked the question whether the parties intended that, if the premises could not be used lawfully because of restrictions such as the Coronavirus restrictions, the obligation to pay rent would be suspended, far from a testy "of course" from both parties, it seems to me the landlord in each case would have said "of course not, the rent is payable throughout unless physical damage to or destruction of the premises has rendered them unfit for occupation or use". It follows that the aspect of the test identified by Carr LJ at [51(vii)] cannot be satisfied:

"Nor is it enough to show that, had the parties foreseen the eventuality which in fact occurred, they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred."

140. As Carr LJ said in [51(viii)] the test for implication is a stringent one and in my judgment, it is nowhere near satisfied in these cases. As Mr Fetherstonhaugh QC pointed out, where, as in these cases, the contracts in question were detailed documents prepared by lawyers, the scope for implication is limited. Furthermore, in my judgment none of the terms contended for can be implied into the leases because they are inconsistent with the express terms of the leases, in the sense that they seek to reallocate the allocation of risk set out in the bargain which the parties made."

118.   The Court of Appeal also stated the following at paragraphs 142 and 143: -

"142. The second implied term in the Trocadero case is also completely unworkable as Mr Trompeter QC said. The question of implication is to be addressed at the time the contract is made ([51(vii)] of Yoo Design). There is simply no evidence or any other material from which the Court could assess what level of attendance would have been anticipated for 2020 and 2021 when the leases were entered in 1994 and 2014. This would have required some sort of expert evidence, which was not available and even if it had been might well have been disputed and the subject of cross-examination, an impossible scenario for the implication of a term.

143. In relation to implication (and indeed his case on failure of basis) Mr Seitler QC sought to make much of the proposition that, whilst the pandemic itself might not have been unforeseeable or unprecedented, the restrictive Coronavirus legislation which was introduced was unprecedented. In those circumstances, he submitted that it was appropriate for the Court to consider applying the law in a fresh light. I do not agree. Even if the legislation were unprecedented and that may well be debateable, since some restrictions have been imposed historically during previous pandemics, including the Great Plague, that is no reason to disregard or disapply fundamental principles of the law of contract or to extend the law of unjust enrichment beyond its proper bounds."

119.   There is no reason to reach a different conclusion from this analysis in this jurisdiction.  In my judgment, the implied terms contended for by the defendant do not satisfy either the business efficacy test or the obviousness test.  As the Court of Appeal in England noted in Bank of New York Mellon the current lease in that case worked perfectly well without the implied terms.  The same observation applies to the lease in this dispute. The current lease allocates the risk that the Cinema cannot be used for its intended purpose so that the defendant is obliged to continue to pay rent where the cesser of rent provisions do not apply as I have found even though the Cinema cannot be used as such.  I wish to add that Clause 4.8 and a lack of an express warranty about the use to which the premise might be put, is also inconsistent with implying the terms sought by the defendant.

120.   The terms contended are also not obvious.  The matter can be tested this way.  If when the lease was being negotiated, the defendant had contended that Clause 3.1.(a) did not apply to force majeure, what the landlord's response might have been is as far from clear.  The landlord may have said rent is payable come what may or the landlord may have agreed certain modifications to the commercial terms to address the risk.  What the outcome might have been is far from clear because there is clearly more than one possible contractual solution to the risk of a pandemic and whether or not rent is payable. Had the issue been raised there would have been further contractual negotiation but what might have then been agreed is not obvious.

Issue 4 -  'Equity" requires the Court to intervene

121.   In relation to equity, while the court as is well known possesses an equitable jurisdiction, this is not sufficient to permit courts to rewrite contractual bargains.  The Royal Court has made it clear on numerous occasions the importance of keeping parties to their contractual bargain and that such a bargain has the force of law (applying the well known maxim la convention fait la loi des parties).  A notion of fairness or reasonableness does not permit the Royal Court to vary or modify the contractual bargain the parties have reached.  In addition the landlord's claim is a straightforward one for non-payment of rent.  No equitable remedies are sought, simply a judgment for the amount of rent payable under the lease. There is therefore no remedy for equity to operate on.

Issue 5 - Adherence to Government Guidance

122.   This issue can be dealt with fairly briefly.  As Advocate Kelleher contended, the government guidance does not vary, suspend or alter the contractual obligations of landlords and tenants.  In addition, the government as landlord guidance does not apply because the landlord is a separate legal entity from the States of Jersey.  It is not appropriate to look through the legal personality of the landlord and to treat it as an organ of the States of Jersey.  

123.   In relation to the Practice Direction RC20/06 relied on by the defendant, this Practice Direction does not purport to vary the parties' legal obligations.  Where I accept the Practice Direction might have been relevant is that, if I had found that a trial was required on temporary suspension in reliance on the sixth principle of Pothier, the exercise of the Royal Court's discretion as to what might have been payable may have taken into account matters referred to in the Practice Direction.

Conclusion

124.   For the reasons set out in this judgment the landlord's application for summary judgment is granted.  When this judgment is handed down in addition to what costs orders should be made as a result of this decision, I wish to be addressed on what other orders should be made.

125.   In relation to enforcement of the judgment granted by this decision, the defendant accepts that the droit de gage extends to movables situated at the Cinema but is limited to one year's rent.  If however the landlord wishes to argue that the droit de gage should apply to the service charge, insurance for the period when the Cinema did not operate or for a greater period of one year, that is a development of the customary law and would require argument before the Royal Court.

Authorities

Practice Direction RC20/06.

COVID-19 (Enabling Provisions) (Jersey) Law 2020.

Commerzreal Investmentgesellschaft mbh v TFS Stores Limited [2021] EWHC 863 (Ch)

Bank of New York Mellon (International) Ltd v Cine-UK Ltd [2021] EWHC 103

London Trocadero (2015) LLP v Picturehouse Cinemas Ltd & Ors [2021] EWHC 2591 (Ch).

Pothier:  Traité des Obligations.

Pothier:  Traité du Contrat de Louage.

Hotel de France (Jersey) Limited v The Chartered Institute of Bankers (1995_256) (21^st December 1995).

Hong Kong Foods Limited v Robin Hood Curry Limited [2017] JRC 050.

Adjustment of Rent (Jersey) Law 1940.

Mobil Sales & Supply Corporation V. Transoil (Jersey) Limited [1981] JJ 143.

Grove and Briscoe v Baker [2005] JLR 348.

Marks & Spencer Plc v BNP Paribas Securities Services [2016] AC 742.

HRCKY Limited v Hard Rock Limited [2019] JCA 123

Holmes v Lingard & Ors [2017] JRC 113

Fairgrieve and Langlois Jersey and Guernsey Law Review 2020.

Barrett v Enfield LBC [2001] 2 AC 550

CoreFocus Consulting Limited v Cronk [2013] JRC 194.

Royal Court Rules 2004.

C.I. Trustees and Executors Limited and Killmister v Sinels Advocates and Carey Olsen [2017] (2) JLR 1.

National Carriers V Panalpina [1981] AC 675

Canary Wharf v European Medicines Agency [2019] L&TR 1

Grove and Briscoe v Baker supra applying the English case of Liverpool City Council v Irwin [1977] AC 239.

Marks and Spencer Plc v BNP Paribas Securities Services Trust Co. (Jersey) Ltd & Ors [2016] AC 742

Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd & Anor (Rev 1) [2015] UKSC 72

New York Mellon v Cine-UK Limited & Ors [2022] EWCA Civ 1021