Commerz Real Investmentgesellschaft mbh v TFS Stores Ltd

This judgment relates to two applications heard on 18 March 2021. The first is the claimant’s application for summary judgment under CPR rule 24.2 issued on 3 February 2021. The second is the Defendant’s application issued on 15 March 2021 for an order adjourning the hearing of the claimant’s application. Having heard the application to adjourn, I indicated that it would be dismissed and said I would give reasons when giving judgment on the claimant’s application.

Mr Cowen QC appeared for the claimant and Mr Caplan appeared for the defendant. I am grateful to them for their submissions.

The claimant is the leasehold owner of the Westfield Shopping Centre (“the Facility”) at

The defendant, which operates as ‘The Fragrance Shop’, was as a consequence of the extraordinary measures that are contained in the Health Protection (Coronavirus, Restrictions) Regulations 2020 SI 2020/350, and later the Health Protection (Coronavirus Restrictions) (All Tiers) (England) Regulations SI 2020/1374, obliged to close its business at the Premises on 26 March 2020. The business remained closed to the public until 15 June 2020. It was then closed again between 5 November 2020 and 2 December 2020 and from 19 December 2020 until 12 April 2021.

The claim is for rents payable under the lease. (Footnote: ¹) The defendant has not paid any rent for the Premises in accordance with the side letter since April 2020 and the monthly service charge for April, May and June 2020 is also outstanding. The claim was issued on 3 December 2020 and the claimant seeks judgment for rent amounting to £166,884.82 (inclusive of VAT) and interest at the contractual rate. On its face, the claim is unremarkable. Indeed, given the sum that is involved, it might appear surprising that the claim is being dealt with in the High Court. However, up to the end of January 2020, claims for commercial rent issued in the High Court in London were not normally transferred to the County Court at the initial triage point against the possibility of tenants seeking to maintain a defence based upon grounds arising from the exceptional circumstances created by the Coronavirus pandemic. A defence has been served in this case and the issues it raises are directly related to the pandemic.

It is not part of this judgment to examine the precise effect of the pandemic upon either the claimant’s or the defendant’s business. That they have both been affected is not in

The defence sets out three grounds for defending the claim, in addition to putting the claimant to strict proof that the sums claimed have fallen due.

The third ground of defence was premised upon the defendant’s belief that the claimant had not obtained cover against loss of rent caused by the risks relied upon by the defendant. The position appeared to be clear because in paragraph 16b of the reply the claimant asserted that it had not obtained insurance against those risks. Very shortly before the hearing, pursuant to a request made by the defendant, the claimant produced its policy and as a consequence the defendant has sought to recast its case in relation to the claimant’s insurance covenants. It is right to note, however, that the defendant did not ask for the policy to be disclosed until 16 March 2021 although it had been open to the defendant to seek disclosure of the policy pursuant to paragraph 21 of PD51U from 2 February 2021 when the reply was served. The policy was produced promptly upon the request being made.

One further new ground of defence was put forward at the hearing, namely that the terms of the rent abatement clause specify that a dispute about the amount or period of the abatement of rent must be referred to an independent expert. In addition, the defence that is based upon the claimant’s obligations to insure was re-cast at the hearing.

The principles that apply to the disposal of an application under CPR rule 24.2 are settled. The burden is on the claimant to show both that the defendant has no real prospect of defending the claim at a trial and that there are no compelling reasons why the claim

The principles that the court must apply are conveniently set out in the judgment of Lewison J (as he then was) in Easyair Limited v Opal Telecom Limited [2009] EWHC 339 (Ch). The judgment concerns an application for summary judgment made by the defendant, but the principles that are summarised there apply with equal force to an application made by a claimant. The summary was approved by the Court of Appeal in AC Ward & Sons Limited v Catlin (Five) Limited [2009] EWCA Civ 1098. Notably, in AC Ward & Sons Ltd v Catlin (Five) Limited the Court of Appeal upheld a decision not to rule on a point of construction of the terms of a contract where the terms were said to be standard terms which were widely used in the insurance market.

There are some additional points of emphasis, however, that Mr Cowen QC and Mr Caplan invite the court to consider:

In addition, the defendant relies upon the behaviour and conduct of the claimant. Mr Caplan submits that conduct can be relevant to the second limb of CPR rule 24.2 and the need for the overall merits to be considered at a trial. If the first two grounds of defence (prematurity and the exploitation of a loophole, as the defendant puts it) do not have a real prospect of success as defences to the claim, Mr Caplan submits they may nevertheless provide reasons why the court should not enter summary judgment. The relevance of conduct and the application of the second limb of CPR rule 24.2 is discussed in the notes in Civil Procedure at 24.2.4 and a number of examples of the type of circumstances that may engage the second limb are cited.

The notes refer to two pre-CPR cases. Some caution is needed, however, because the terms of RSC Order 14 were not the same as CPR rule 24.2. Under the RSC the emphasis was different. The court was required to consider whether there was “an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial”. In Miles v Bull (No 1) [1969] 1 QB 256 Megarry J observed that the second part of the rule was very wide. He went on to say with reference to the facts in that case:

“ They also seem to me to have special significance where, as here, most or all of the relevant facts are under the control of the plaintiff, and the defendant would have to seek to elicit by discovery, interrogatories and cross-examination those which will aid her. If the defendant cannot point to a specific issue which ought to be tried but nevertheless satisfies the court that there are circumstances that ought to be investigated, then I think that those concluding words are invoked. There are cases when the plaintiff ought to be put to strict proof of his claim, and exposed to the full investigation possible at a trial; and in such cases it would, in my judgment, be wrong to enter summary judgment for the plaintiff. In the present case the plaintiff's evidence initially consisted of a single affidavit in which brevity could scarcely be carried further. He has now amplified this by further evidence, but this is certainly not exhaustive or conclusive. The words "there ought for some other reason to be a trial" seem to me to give the court adequate powers to confine Order 14 to being a good servant and prevent it from being a bad master.”

There is a material difference between there being “no other compelling reason why the case … should be disposed of at a trial” and “there ought for some other reason be a trial.” Notably in the CPR the word “compelling” has been added. It seems to me that the scope of the court’s discretion under the CPR is rather narrower than the very wide discretion under the RSC.

Order 14 of the RSC was also considered by Cairns LJ in the Court of Appeal in Bank fur Gemeinwirtschaft Atkiengesellschaft v City of London Garages [1971] 1 WLR 149 at 158 where he observed:

“It is not difficult to think of other circumstances where it might be reasonable to give leave to defend although no defence was shown: for example, if the defendant was unable to get in touch with some material witness who might be able to provide him with material for a defence; or if the claim were of a highly complicated or technical nature which could only properly be understood if oral evidence were given; or if the plaintiff's case tended to show that he had actedharshly and unconscionably and it was thought desirable that if he was to getjudgment at all it should be in the full light of publicity.” [emphasis added]

I have doubts about whether the authorities dealing with RSC Order 14 are a reliable guide to the proper approach to the application of the second limb of CPR rule 24.2, bearing in mind the significant difference between the two rules and the requirements of the Overriding Objective. It seems to me that adding the word “compelling” was clearly intended to limit the very wide discretion under the RSC. The basis upon which Megarry J decided Miles v Bull chimes, for example, with the principle to be derived from the decision of the Court of Appeal in Royal Brompton v Hammond (No5) [2001] EWCA Civ 550 in relation to the first limb of CPR rule 24.2 that the court should consider the evidence which can reasonably be expected to be available at trial and the lack of it. On the other hand, the need for a trial in order that judgment is obtained in the full light of publicity is unlikely to be a compelling reason to refuse summary judgment when the rule is construed by reference to the Overriding Objective and bearing in mind that the hearing of an application under CPR rule 24.2 will invariably take place in open court.

The defendant says the proceedings are premature because the Code of Practice requires landlords and tenants to work together, it has been a reliable tenant and the pandemic has created exceptional circumstances. However, it is clear from the first paragraph of the Code that it does not affect the legal relationship between landlord and tenant:

“This Code of Practice is published in response to the impacts of COVID-19 on landlords and tenants in the commercial property sector and covers the whole of the United Kingdom. It is intended to reinforce and promote good practice amongst landlord and tenant relationships as they deal with income shocks caused by the pandemic. This is a voluntary code and does not change the underlying legal relationship or lease contracts between landlord and tenant and any guarantor”.

It is also clear that the Code encourages landlords and tenants to take a balanced view. The Code is not a charter for tenants declining to pay any rent. This can be seen from paragraph 3:

“The legal position is that tenants are liable for covenants and payment obligations under the lease, unless this is renegotiated by agreement with landlords. Tenants who are in a position to pay in full should do so. Tenants who are unable to pay in full should seek agreement with their landlord to pay what they can taking into account the principles of this code. This will allow landlords to support those tenants who are in greatest need and to maintain development activity which will contribute to economic recovery. It also means landlords should provide support to a tenant where reasonably possible, whilst having regard to their own financial commitments and fiduciary duties.”

Although the Code of Practice is pleaded as a ground of defence, Mr Caplan did not seek to maintain this element of the defence at the hearing. Instead, he relied upon the Code as

Mr Caplan also submitted that the claimant’s conduct in failing to make a claim under its insurance policy on the basis that COVID-19 is a notifiable disease is also a relevant matter that the court may take into account in deciding whether this claim should go to trial. It seems to me, however, that the proper approach is to determine this point not as a point of conduct but whether the defendant has a real prospect of defending the claim based upon the case it wishes to pursue in relation to insurance. I will come to that aspect of the case shortly.

This limb of the defence is pleaded in paragraph 10 of the defence:

“The Defendant also avers that the Claimant’s claim seeks to circumvent the measures put in place by the government. Those measures prevent forfeiture, winding up petitions and the CRAR procedure where rent arrears are related to Covid-19. The measures are clearly intended to protect commercial tenants where they have been forced to close and/or have been subjected to significantly reduced footfall during any trading periods, as a result of social distancing measures. Using what is essentially a loophole goes behind the intention of those measures.”

As part of the measures taken to protect the economy, the Government has placed restrictions upon some, but not all, remedies that are open to landlords. There is no legal restriction placed upon a landlord bringing a claim for rents and seeking judgment upon that claim. The defendant’s position conflates on the one hand steps to enforce the right to receive rent under the contractual terms of the lease with, on the other hand, the right of the landlord to obtain a determination of the liability to pay rent and the court entering judgment for a sum. The steps the claimant may be able to take if judgment is entered are restricted; but the entitlement to bring a claim before the court for a determination about liability is unaffected. Indeed, it would be a surprising outcome if an indirect effect of steps taken to restrict the recovery of rent by self-help means and pursuing insolvency proceedings was to prevent landlords from pursuing proceedings and applying for summary judgment. Indeed, the logical consequence would be that a landlord would neither be able to apply for judgment in default, which is an administrative rather than a judicial step, or take a claim to trial. In any event, there is no basis for concluding that the claimant’s right of access to the court, or that the court’s powers under the CPR, are restricted.

The substance of the defence revolves around the claimant’s obligations to insure the Facility and the Premises and the rent cesser provisions in the lease. Although the defendant’s case has developed since its case was pleaded in the defence, the case as it was then put forward provides the logical starting point.

The material terms of the lease are in summary:

The defendant alleges that the claimant is in breach of clause 5.2 of the lease under which it covenanted to observe and perform the provisions of the schedules to the lease. The defence continues:

“12.

Schedule 3 clause 2.1 of the Lease confirms that the Insurance Premiums are to include all monies and costs expended, or required to be expended by the Claimant in connection with cover against Insured Risks and loss of

Principal Rent. Clause 1.1 of the Lease defines Insured Risks as including

“the risks and other contingencies against which the Premises and Facility are from time to time insured” and “such other risks as the Claimant may consider it prudent to insure”.

13.

The insurance protects both the Claimant and Defendant in particular circumstances, where there is a loss of Principal Rent. It is reasonable for the Defendant to expect that the Claimant would obtain satisfactory cover. It is the Defendant’s position that satisfactory cover includes “such other risks prudent to insure” and that it is reasonable to expect that the Claimant would obtain cover for loss of rent and service charges related to forced closures and/or denial or loss of access due to notifiable disease and/or government action.

14.

The Claimant held itself out as an established Landlord and the Defendant therefore trusted the Claimant would procure the appropriate insurance in good faith.”

…

“16.

The Claimant is put to proof that it has obtained adequate insurance and that it has sought recovery from such insurance cover. In the event that the insurance does not cover loss of rent and service charges related to the forced closures of the stores, the Defendant avers that the Claimant has failed to meet its obligations under the Lease by failing to procure an appropriate extension to the insurance.

17.

It is the Defendant’s position that the Claimant could and should have insured the Property for loss of rent and service charges to include cover where the Defendant is forced to close its stores or there is a loss or denial of access due to notifiable disease and/or government action. In failing to do so the Claimant has failed to adequately insure the Premises and is in breach of the Lease.”

The claimant’s position was set out in paragraph 16 of the reply: “(a) The Claimant was not required by the terms of the Lease (or otherwise) to insure against the risk of global pandemic nor loss of rental income attributable to such a global pandemic.

The essence of the defendant’s case, as it is pleaded, is that the claimant was under an obligation pursuant to the terms of the lease to insure against loss of rent due to a

The claimant’s primary submission is that unless the rent cesser provisions bite, it has not suffered any loss and, therefore, has not suffered a loss of rent that it could claim under its policy. The insurance cover relates to the claimant’s loss to its business, not a notional loss because the defendant does not pay rent because the Facility is closed.

The defence and paragraph 16(a) of the reply give rise to a short point of construction. The claimant is, by virtue of clause 5 and paragraph 4 of the lease, obliged to insure against the Insured Risks and the other items referred to in paragraph 2.1 of schedule 3. The wording of paragraph 2.1, which is headed Insurance Premiums, is not entirely satisfactory. It requires that, amongst other things, insurance premiums “… are to include all monies and costs expended, or required to be expended, by the Landlord in connection with effecting and maintaining cover against Insured Risks” … and similarly effecting and maintaining cover against loss of rent. This seems to confuse the cost of cover, the premium, with the cover that is to be obtained. Nevertheless, it is clear from the lease that the claimant is only obliged to obtain and pay for cover against the Insured Risks and loss of rent. There is nothing in the definition of Insured Risks that refers to notifiable disease or government action and the final words are clear that it is for the claimant to decide which additional risks will be covered. This cannot be construed as creating an objective measure of reasonableness. The claimant is insuring its interests, albeit the defendant is required to contribute to the cost of the premium as part of its obligation to pay rent (clause 3.4).

Paragraph 16(b) of the reply makes two assertions. First, that the claimant did not obtain cover against the risk of the Facility being closed due to the pandemic. That is not, in fact, correct. Cover against the risk of loss caused by notifiable disease was obtained. The second assertion is that the claimant is not entitled to claim under its policy in respect of that risk.

The claimant produced a letter from Marsh, the claimant’s brokers, before disclosing the policy, which summarises the scope of the cover held by the claimant:

“The insurance cover arranged on your behalf as the landlord for Westfield London provides coverage as specified under the terms of the lease for damage (as defined in the lease, and generally meaning physical damage) to the Premises and subsequent loss of rent to the landlord as a result of such damage to the

Mr Caplan submitted that the letter is at odds with the policy. The material terms of the policy terms are:

The policy covers material damage and loss of rent from one of the perils insured, including a notifiable disease. Critically, however, the policy only covers loss resulting from physical damage to property, including the Facility (and therefore the Premises) and damage to the claimant’s business, not the defendant’s business. This is the distinction made in the letter from Marsh.

In light of the terms of the policy, the defendant no longer relies upon its pleaded defence alleging that the claimant was in breach of its obligations to obtain insurance cover against the risk of a pandemic. It is clear, whether or not there is cover, no claim has been made under the policy by the claimant for loss of rent.

The defendant’s revised case, having now seen the policy terms, has not been pleaded. Mr Caplan submitted that there had not been time before the hearing to produce a fully drafted amended defence. That may be correct. However, it is difficult to accept that the defendant was unable provide at least an indication in writing of the case it wishes to pursue both as to the proper construction of the lease and terms it says are to be implied within it. The defendant’s precise landing point in terms of the case it wishes to pursue is far from clear.

The defendant’s case as it is now advanced by Mr Caplan relies upon an issue of construction of the lease and implied terms. My understanding of the defendant’s case is that on a proper construction of the lease, or as a consequence of implied terms:

Neither party directly relied upon any authority in relation to the construction of the lease. However, the proper approach to construction is not in doubt and can be seen from recent decisions in the Supreme Court including Arnold v Britton [2015] UKSC 36 [14]-[[23] and Wood v Capita Insurance Services Ltd [2017] UKSC 24 [8]-[15].

The approach to the implication of terms can be seen from Lord Neuberger’s judgment in Marks & Spencer plc v BNP Paribas Securities Trust Co (Jersey) Ltd [2015] UKSC 72 where he cites with approval the following summary of the principles:

“18.

In the Privy Council case ofBPRefinery(Westernport)PtyLtdvPresident,

CouncillorsandRatepayersoftheShireofHastings (1977) 52ALJR20, 26, Lord Simon (speaking for the majority, which included Viscount Dilhorne and Lord Keith) said that:

“[F]or 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.””

Conditions (2), (3) and (4) are particularly important in connection with this case. The observations made by Lord Neuberger at paragraph [19] of his judgment in relation to Lord Simon’s formulation do not need to be referred to other than to remark that he records Sir Thomas Bingham’s observations in Philips Electronique Grand Public SA v British Sky Broadcasting [1995] EMLR 472 that: “it is difficult to infer with confidence what the parties must have intended when they have entered into a lengthy and carefully-drafted contract but have omitted to make provision for the matter in issue”, because “it may well be doubtful whether the omission was the result of the parties' oversight or of their deliberate decision”, or indeed the parties might suspect that “they are unlikely to agree on what is to happen in a certain … eventuality” and “may well choose to leave the matter uncovered in their contract in the hope that the eventuality will not occur”.

Mr Caplan points to a number of features in the lease:

Mr Caplan also relied upon a passage in Hill and Redman: Landlord and Tenant at

If the claimant takes on the burden of insuring against risks in which the defendant is interested it is possible to see that either by construction or implication of a term it may be arguable that the claimant must make a claim if the relevant circumstances arise. It is unclear, however, how the defendant puts its case beyond that general proposition. If there is a failure to make a claim, what are the consequences? If the breach were to have the effect of suspending the obligation to pay rent, how long would it operate and in what amount? No answers to these fundamental questions have been provided.

In any event, the lease does not permit the defendant to assert that the claimant had an obligation to include notifiable diseases and/or government direction as insured risks. The lease is clear that the obligation to insure is limited to the risks that are named in the definition. The claimant is not obliged to insure against any other risks unless it chooses to do so. Furthermore, the point does not assist the defendant, even if there is

There is a helpful passage in Halsbury’s Laws Vol 60 para 565 concerning the effect of the claimant and the defendant having different insurable interests in the Premises:

“There are many cases in which two or more persons, such as landlord and tenant … each have an interest in the same property. These interests are separate and distinct; each is capable of supporting an insurance and each of the two persons interested may insure the property for his own protection. The insurance so effected insures for the sole benefit of the person effecting it and the other persons interested in the property have no right to participate.”

This passage makes the point that although the insured risks may be common between the claimant and the defendant, the scope of the cover each party is able to obtain will not be entirely common. Indeed, there is no obvious reason why, even if it were possible to do so, the claimant should wish to obtain cover against losses to the defendant’s business. Such losses are for the defendant to insure.

The policy of insurance obtained by the claimant covers its losses, not loss incurred by the defendant. The point is made clearly in Lewison on Drafting Business Leases 8^th ed. at para 7-16:

“If loss of rent is covered by the insurance policy, but the rent does not abate, then unless the tenant is the insured or one of the insured, the insurers will not pay because the landlord will have suffered no loss. If, however, the tenant takes out consequential loss insurance in respect of his business, then if the rent does not abate, the extent of his claim on his own policy will, to that extent, be diminished”.

Rent Cesser/Suspension

The defendant’s obligation to pay rent continues unless the rent cesser provisions in the lease suspend that obligation. The starting point is the express terms of the lease.

Mr Caplan starts with the keep open covenant in clause 4.8. The defendant is obliged to keep open the Premises (other than the storage facility) and to maintain active trade unless it is prevented from doing so by an Insured Risk or do so would be unlawful. It is clear that during periods of lockdown the obligation to trade is suspended. The same position would apply if, for example, the Premises were damaged by fire. There is, however, nothing in clause 4.8 that has the effect of suspending the obligation under clause 3, as amended by the side letter, to pay rent.

The rent suspension provisions are found in paragraph 5 of schedule 3. Paragraph 5.1 refers to the provisions of paragraph 5.2 applying if the Premises “… are damaged by an Insured Risk or if the Facility is so damaged as to affect materially and adversely the Premises…”. Paragraph 5.2 provides for rent “… or a fair proportion … according

I consider the terms under which rent cesser apply are clear. They only apply where there is physical damage to the Premises. Rent is suspended until the premises have been reinstated. There is no basis for construing these provisions so that they apply in the event of the Facility and/or the Premises being closed due to a legal requirement. The obligation to keep open and to trade is suspended but that is a quite different matter.

The defendant has not provided a draft implied term that would extend the scope of the rent cesser provisions and it is very difficult to see how such a term could be drafted with any precision. In addition, any such provision would contradict the terms of the lease and lastly, and fatally, such a term is not so obvious it did not need to be said. The lease apportions risk between the parties and the rent cesser provisions apply exceptionally in the limited circumstances they expressly contemplate, and no further.

At the hearing Mr Caplan sought to rely upon paragraph 5.4 of Schedule 3 of the lease which provides that a dispute about the abatement of the Principal Rent or the duration of the period of abatement under the rent cesser provisions must be submitted for determination by an independent expert. The premise of this submission is that such a dispute exists and, therefore, the claim must be stayed to permit the expert determination to proceed.

It is fair to say that this submission was not pursued with a great deal of enthusiasm and rightly so. The defendant has not applied for a stay of the claim and, in any event, the defendant has not disputed the jurisdiction of the court or followed the procedure in CPR rule 11. It is deemed to have submitted to the jurisdiction of the court pursuant to CPR rule 11(5). Furthermore, the defendant has served a defence. There is no proper basis for granting a stay.

I am satisfied that the issues of construction the court has been asked to consider fall well within the ambit of typical issues for determination on an application for summary judgment. They are properly regarded as being ‘short’.

Equally, I am satisfied that the claimant has discharged the burden of establishing that the rents it claims are due and the defendant has no real prospect of defending the claim to recover the outstanding rents. There are no compelling reasons why the claim should go to a full trial. The basis of the defence does not rely upon any new principles of law. The issues raised by the defendant are capable of being resolved by applying the well-established principles that govern the construction of contracts and the implication of terms. The context in which the claim is made does not entitle the defendant to contend that these principles are now part of an area of developing law.

The claimant is entitled to judgment for the rent claimed and interest at the rate specified in the lease.

When considering an application to adjourn a hearing the court must apply the overriding objective and ensure that the claim is dealt with justly and at proportionate cost. Although the court must have regard to all the factors set out in CPR rule 1.1(2), ensuring that the case is dealt with expeditiously and fairly and allotting an appropriate share of the court’s resources are factors of particular importance.

The application was made based upon a need to have time to re-plead the defence. It seems to me that in considering the application the court is bound to form a provisional view about the merits of the proposed amendments and whether granting an adjournment has a real likelihood of enabling the defendant to formulate a defence that should be tested upon a full hearing of the application for summary judgment. Furthermore, the timing of the application and if it is late any reasons for lateness are material considerations.

The application for an adjournment was made very late. The defendant was made aware of the application for summary judgment on 4 February 2021 but did not make the application to adjourn until 16 March 2021. During the intervening period the defendant’s in-house legal department could have instructed counsel to advise. No such step appears to have been taken until the week commencing 8 March 2021. There were discussions between the parties during that period which were without prejudice. It is trite, however, that a party should not assume there will be a favourable outcome to negotiations and should take formal steps to protect its position at the same time as seeking to resolve a claim.

It was open to the defendant to seek a copy of the claimant’s insurance policy from 2 February 2021 when the reply was served and open to the defendant to instruct counsel concerning the application for summary judgment from 4 February 2021. No reason for failing to act promptly has been given. In any event, if counsel had been instructed to settle an amended defence in the week commencing 8 March 2021 there would have been adequate time for a draft to have been produced. Even on the defendant’s own timetable of events it was open to the defendant to provide the claimant and the court with an outline draft of the relevant terms of the lease construed as the defendant proposed and draft implied terms.

There is of course some prejudice to the defendant in refusing to adjourn the hearing. However, an adjournment would also have been prejudicial to the claimant given that no payment of rent has been made by the defendant for 12 months and an adjournment is likely to have led to a hearing being listed in May or June 2021. Furthermore, time had been set aside time in the court diary for the hearing that would not have been available to other court users. These factors, taken with the somewhat diffuse nature of the proposed new defence, led me to conclude that the court’s discretion should be exercised against granting an adjournment.

Judgment will be entered for the claimant in the sum claimed together with interest at the contractual rate.