Kester Lees KC acts for successful landlord in trial concerning push frauds and the payment of rent
Kester Lees KC acted for the successful landlord in RR (South) Limited v FirstSource Solutions Limited, in which the High Court held that a tenant had failed to exercise its break clause by failing to pay the sums due as at the break date. Therefore, the Lease continues for another five years and the tenant is liable for arrears and interest of around £1.5m of millions more in future rent.
The tenant had made a £95,000 payment to a fraudster who had successfully hacked the landlord’s agent’s account and committed a push fraud. A key argument centred on whether the landlord had to give credit for that payment. The landlord argued that the current state of the law, in cases such as Sell Your Car With Use Ltd v Sareen [2019] BCC 1211 and Logix Aero Ireland Limited v Siam Aero Repair Company Limited [2025] EWHC 1283 (KB), meant that both parties were treated as victims and so the payment did not count as good payment.
The three day trial was listed on the Shorter Trials Scheme pursuant to CPR PD 57AB. Crucially, the Practice Direction makes provision for the identification of a list of issues at the CMC which define the scope of disclosure, witness evidence and the trial.
On day one of the trial, Kester successfully applied to prevent the tenant advancing an argument based upon agency as it was not pleaded or identified in the approved list of issues. The trial judge agreed. In the absence of that argument, ultimately, it was accepted and found that there was no good defence to the claim.
HH Judge Williams, sitting as a Judge of the High Court, gave an ex tempore judgment in which he highlighted the importance of precision in pleadings and, especially on the Shorter Trials Scheme, the identification of the key issues in dispute at an early stage. The failure to do so proved potentially costly to the tenant.
In any event, a similar argument was advanced and rejected by the County Court in J Brazil Road Contractors v Belectric Solar Ltd 2018 WL 01993147, unreported, Canterbury County Court; but the Judge considered it was unnecessary to decide that issue any further in light of the pleaded cases and the landlord’s success on the first issue.
Kester was instructed by Stephen Farrell and Stephanie Cowie of Burness Paull LLP.
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