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TFS Stores Ltd v Designer Retail Outlet Centres (Mansfield) General Partner: The end of the road

The Supreme Court has refused permission to appeal in TFS Stores Ltd v Designer Retail Outlet Centres (Mansfield) General Partner & Ors, thus bringing to an end this long-running litigation that began in 2018 concerning the validity of contracting out arrangements under the Landlord and Tenant Act 1954.  The Court of Appeal’s decision (summarised here) therefore stands as the first port of call for anyone concerned with the validity or purpose of the declaration or statutory declaration that the tenant needs to complete. 

In particular, the vexed question of what tenants or their advisers should insert after the words “for a term commencing on….” has a pragmatic and common sense answer.  It is not necessary to predict correctly the exact start date of the lease, an event which lies in the future. It will suffice to refer to the commencement date of the term contained in the lease, or even a formula such as “for a term commencing on the day on which the tenancy is granted”, or “on a date to be agreed” – so long as the declaration serves the practical purpose of clarifying that the tenant has reflected on the warning it has received and understands for itself which lease is being referred to.

In addition, the decision of the Court of Appeal in Galinski v McHugh (1989) 57 P&CR 359 permitting service of the landlord’s warning notice on a tenant’s agent remains unchallenged.  At first instance, TFS Stores Ltd had reserved its position on this point for a higher court as the High Court was bound by this appellate decision.  The Supreme Court’s refusal of permission means that the long settled practice of treating service on an agent as service on the tenant stands, and parties can continue to operate on this basis.

Wayne Clark and Joe Ollech acted for the landlord companies, and Guy Fetherstonhaugh QC, Joanne Wicks QC and Mark Galtrey acted for the tenant in this litigation.