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M&P Hotels v Norfolk Square Limited

The High Court, Chancery Appeals Division has dismissed an appeal on the grounds of bias brought by a commercial tenant to which  the Court had refused the grant of a new tenancy under the Landlord and Tenant Act 1954 on grounds section 30(1)(a) (breach of covenant to repair) and (c) (other substantial breaches and conduct in connection with the use and management of the holding).

At trial the Judge had made many comments on the poor state of the tenant’s case. The tenant had changed solicitor four times in these proceedings (ten times including previous claims between the parties), went for substantial periods and at critical times without legal representation at all, had been involved in two sets of earlier proceedings in each of which it was obstructive and ran a hopeless case, and in the present claim had failed to comply with procedural requirements regarding witness statements and expert evidence.  The legal team acting at trial was retained barely more than a week prior to a five day witness action, and had conducted the tenant’s case expertly and faultlessly, doing the very best that could possibly be done under such circumstances. During the trial, the Judge made frequent adverse observations on the subject of the tenant’s failure to prepare properly for trial, lamenting the inadequacy of its witness statement, its attempt to  rely on documents which had no evidential value, its failure to answer questions directly, and its conduct in this claim and the earlier claims. The landlord succeeded under both ground (a) and (c).  

The tenant appealed, alleging that the Judge had displayed actual or apparent bias, and that a fair trial had not been possible because of the Judge’s overactive case management during the trial, interfering with counsel’s cross examination of the landlord’s witnesses, making adverse comments on the tenant director’s actions and conduct,  and criticising the tenant’s expert both before and during his oral evidence. The appeal was dismissed. Hildyard J held that there had been no actual or apparent bias, and that the tenant had not been prevented from presenting its case. Whilst some of the trial judge’s criticisms could (and on occasion should) have been expressed more moderately, it would be clear to an impartial observer, with knowledge of the relevant background, that they were caused by the tenant’s own failures, and not because the judge had prejudged the issues. Nor did her interventions, frequent and pointed though they were, prevent the tenant’s defence being properly explored at trial, thanks to its highly experienced and professional legal team, who could have done no more. Caroline Shea QC appeared for the Respondent landlord.  Kirk Reynolds QC and Emily Windsor appeared for the Appellant tenant. 

The judgment can be found here

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