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No pandemic clause in a 1954 Act renewal

No pandemic clause in a 1954 Act renewal

On 2 July 2021, DJ Jenkins sitting in the County Court at Brentford handed down judgment in Poundland Limited v Toplain Limited, an unopposed lease renewal about a Poundland store in Twickenham.

In issue was a Covid-clause, proposed by the tenant, Poundland, which would have reduced the rent and service charge by 50% during a ‘use prevention measure’, a phrase defined to include lockdowns due to Covid-19.

DJ Jenkins declined to introduce such a clause, following the guidance in O’May v City of London Real Property Co Ltd [1983] 2 AC 726. He found that it would not be fair and reasonable “to impose on the landlord a sharing of the risk in circumstances over which the [landlord] would have no control whilst the [tenant] may have some by reference to reliefs or schemes that might be available to them by the government”. The tenant proposed suspensions of compliance with other obligations, and of the right to forfeit, were also rejected by DJ Jenkins.

Unlike the recent W H Smith Retail Holdings Ltd v Commerz Real Investmentgesellshaft MBH (unreported), this is a case where there was a dispute about whether to impose a pandemic clause at all, not just the trigger for the rent reduction on an agreed such clause.

Cecily Crampin appeared for the landlord.

The judgment can be found here.




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