“[THE TENANT COVENANTS WITH THE LANDLORD as follows:] To pay the Reserved Rents [i.e. the sums due under Clause 4] at the times and in the manner aforesaid without any deduction (except for any tax required by statute to be deducted) and not to exercise or seek to exercise any right or claim to withhold payment or any right or claim to legal or equitable set-off.”
“otherwise than for the Permitted Use or the Permitted Sublet Use described in paragraph (a) of that definition during the first five years of the Term in accordance with the requirements and conditions of any planning permission authorising such use from time to time save that following the expiration of the first five years of the Term the Tenant subject to the other constraints as to the use of the Property in this clause 5.17 and as contained in the Superior Lease shall be entitled to change the use of the Property to any leisure use not being the then current primary permitted use or the Permitted Sublet Use of any other premises on the Estate or to any other use with the prior written consent of the Landlord not to be unreasonably withheld or delayed.”
“the Landlord shall insure and keep insured with a reputable insurer or underwriters with the interest of the Tenant noted thereon and subject to such exclusions excesses and limitations as may be imposed by the insurers and which are normal in the marketplace: 7.1.1. the Property against loss or damage by the Insured Risks in the Reinstatement Cost 7.1.2. the loss of Basic Rent and Service Charge from time to time payable or reasonably estimated to be payable under this Lease…”
“Means the risk of fire lightning explosion aircraft (save for damage caused by hostile aircraft following the outbreak of war) and other aerial devices or articles dropped therefrom riot civil commotion strikes and labour disturbancesor malicious persons storm or tempest flood bursting or overflowing of water tanks apparatus or pipes earthquake impact collapse resulting from subsidence ground heave or landslip and accidental damage to Conduits weather under or above ground fixed or plate glass and three years’ loss of Basic Rent payable to the Landlord in the event that the whole or part of the property becomes unusable due to the occurrence of the matters listed in this definition other than the loss of Basic Rent and such other insurable risks as may be reasonably required from time to time during the term by the Superior Landlord under the Superior Lease and notified to the Tenant but may from time to time exclude at the discretion of the Tenant any risk in respect of which cover is not available in the normal market in the United Kingdom on reasonable commercial terms in relation to the risks to be insured and subject to such exclusions terms and conditions as the insurers may reasonably require and are usual in the marketplace from time to time.”
“If any BUILDINGS suffer DAMAGE by any causes not excluded under Section 1 Property Damage and the BUSINESS is in consequence thereof interrupted or interfered with the Insurer(s) will pay the Insured the amount of loss arising as a result in accordance with the following provisions provided that the Insurer(s) liability in any one Period of Insurance shall not exceed in respect of each item 200% of the Sum Insured.”
“The Insurer(s) will pay in respect of BUILDINGS which have suffered DAMAGE… a. the loss of Rent being the actual amount of the reduction in the RENT receivable by the Insured during the INDEMNITY PERIOD solely in consequence of the DAMAGE. [and costs of reletting and mitigation expenditure]”
“BUILDINGS The BUILDINGS at the PREMISES and include various items e.g. fixtures and fittings. The PREMISES is a reference to the properties listed in the Schedule and which are used by the Insured for the purposes of the BUSINESS. BUSINESS The BUSINESS of the INSURED shown in the Schedule and including v. the provision of services to the TENANTS. DAMAGE Loss destruction or damage … i. the actual annual RENT at the commencement of the PERIOD OF INSURANCE … in each case the amount to be proportionately increased where the INDEMNITY PERIOD exceeds one year. RENT The money paid or payable to or by the Insured for tenancies and other charges and for services rendered in the course of the BUSINESS at the PREMISES”
“Murder, Suicide, Disease or Pests”
“The Insurer(s) shall indemnify the Insured in respect of loss of RENT or Alternative Residential Accommodation and RENT in accordance with Condition 1 to Sections 1 and 2 (notwithstanding any requirement for DAMAGE to BUILDINGS) resulting from interruption of or interference with the BUSINESS during the INDEMNITY PERIOD following a… any human infectious or human contagious disease (excluding Acquired Immune Deficiency Syndrome (AIDS) or an AIDS related condition) an outbreak of which the local authority has stipulated shall be notified to them manifested by any person whilst in the PREMISES or within a 25 mile radius of it… The Insurance by this Extension shall only apply for the period beginning with the occurrence of the loss and ending not later than three months thereafter during which the results of the BUSINESS shall be affected in consequence of the interruption or interference”
“loss to insured caused by prevention or hindrance of access to the BUILDINGS or prevention or use of the BUILDINGS” due to various events and which include closures by or due to action (or advice) of police or statutory bodies but which has an exception for “action taken as a result of drought or diseases or other hazards to health”
“where such actions or advice are directly or indirectly caused by or arise from any infectious or contagious disease.”
“IN consideration of the Rent and of the covenants hereinafter contained the Landlord HEREBY DEMISES unto the Tenant ALL THAT the demised premises TOGETHER WITH the easements and rights specified in the First Schedule hereto BUT EXCEPTING AND RESERVING the easements and rights specified in the Second Schedule hereto TO HOLD the same … UNTO the Tenant for the Term YIELDING AND PAYING therefor during the Term FIRST yearly (and proportionately for a part of a year) the Rent which shall be payable by equal quarterly payments in advance on the Quarter Days the first of such payments or a proportionate part thereof to be due on the date specified in the Particulars and to be in respect of the period therein mentioned SECONDLY by way of additional rents the amounts payable pursuant to the provisions of sub-clauses 3.5 and 3.6 of the Lease AND THIRDLY by way of additional rent the amounts payable by way of Value Added Tax pursuant to the provisions of sub-clause 3.3 of this Lease.”
“to pay the Rents at the respective times and in the manner herein provided for without any deduction whatsoever”
“to comply with all obligations imposed by … any Act or Acts of Parliament or legislation … in respect of the demised premises or the use thereof whether by the owner or the Landlord tenant or occupier and at all times to keep the Landlord indemnified against all costs claims demands and liability in respect thereof”
“To keep the demised premises open for trading during the Minimum Trading Hours for each Centre Opening Day (so far as permitted by law) and to use its best endeavours to expand the trade carried on in the demised premises.”
“In the event of the demised premises or any part thereof or any of the Common Parts necessary for the use and enjoyment of the demised premises at any time during the Term being damaged or destroyed by any of the Insured Risks in respect of which insurance shall have been effected under the Terms of the Superior Lease so as to render the demised premises or any part thereof unfit for use then (unless the policy moneys become irrecoverable in whole or in part through any act or default of the Tenant…) the Rent and moneys payable pursuant to the Fourth Schedule hereto or a fair proportion thereof according to the extent to which the demised premises as the case may be are rendered unfit for use shall be suspended from the date upon which such damage or destruction shall occur until the demised premises or the relevant part or parts thereof shall again be fit for use or to the end of the Loss of Rent Period (whichever shall first occur) and any dispute concerning this sub-clause shall be determined by [arbitration].”
“Nothing herein contained or implied nor any statement or representation made by or on behalf of the Landlord or the Superior Landlord prior to the date hereof shall be taken to be a covenant warranty or representation that the demised premises can lawfully be used for the Permitted Use.”
“In summary, the relevant principles can be drawn together as follows:- i) A term will not be implied unless, on an objective assessment of the terms of the contract, it is necessary to give business efficacy to the contract and/or on the basis of the obviousness test; ii) The business efficacy and the obviousness tests are alternative tests. However, it will be a rare (or unusual) case where one, but not the other, is satisfied; iii) The business efficacy test will only be satisfied if, without the term, the contract would lack commercial or practical coherence. Its application involves a value judgment; iv) The obviousness test will only be met when the implied term is so obvious that it goes without saying. It needs to be obvious not only that a term is to be implied, but precisely what that term (which must be capable of clear expression) is. It is vital to formulate the question to be posed by the officious bystander with the utmost care; v) A term will not be implied if it is inconsistent with an express term of the contract; vi) The implication of a term is not critically dependent on proof of an actual intention of the parties. If one is approaching the question by reference to what the parties would have agreed, one is not strictly concerned with the hypothetical answer of the actual parties, but with that of notional reasonable people in the position of the parties at the time; vii) The question is to be assessed at the time that the contract was made: it is wrong to approach the question with the benefit of hindsight in the light of the particular issue that has in fact arisen. Nor is it enough to show that, had the parties foreseen the eventuality which in fact occurred, they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred; viii) The equity of a suggested implied term is an essential but not sufficient pre-condition for inclusion. A term should not be implied into a detailed commercial contract merely because it appears fair or merely because the court considers the parties would have agreed it if it had been suggested to them. The test is one of necessity, not reasonableness. That is a stringent test.”
"(a) That if the Permitted Use of the premises by [the Tenant] under the leases were to become illegal, then the obligation to pay rent and service charges otherwise due thereunder would be suspended and cease to be payable for that period; (b) That the sums due under the leases would only be payable in respect of periods during which the premises could be used for its intended purpose, as a cinema with attendance at a level commensurate with that which the parties would have anticipated at the time that the 1994 Lease and the 2014 Lease were entered into."
“It is not, to my mind, an appropriate approach to construction to hold that, where the parties contemplated event “A”, and they did not contemplate event “B”, their agreement must be taken as applying only in event “A” and cannot apply in event “B”
“Of course not. The tenant is paying for the insurance and must take the benefit of it”
“The general rule of law is that where a contract has been in part performed no part of the money paid under such contract can be recovered back." (page 81). However to this general rule he held that there are exceptions. "There may be some cases of partial performance which form exceptions to this rule, as for instance, if there were a contract to deliver ten sacks of wheat and six only were delivered, the price of the remaining four might be recovered back. But there the consideration is clearly severable… The contract having been in part performed it would seem that the general rule must apply unless the consideration be in its nature apportionable.”
"Failure of the consideration for a payment . . . means that the state of affairs contemplated as the basis or reason for the payment has failed to materialise or, if it did exist, has failed to sustain itself."
“In the present case there was a total failure of consideration in relation to the receiver's rights over the companies' assets, which was fundamental to the basis on which the receiver was requested by the CPS and agreed to act. I use the expression "fundamental to the basis" because it should not be thought that mere failure of an expectation which motivated a party to enter into a contract may give rise to a restitutionary claim. Most contracts are entered into with intentions or expectations which may not be fulfilled, and the allocation of the risk of their non-fulfilment is a function of the contract. But in the present case the expectation that the receiver would have a legal right to recover his remuneration and expenses was not just a motivating factor. Nobody envisaged that the receiver should provide his services in managing the companies as a volunteer; those services were to be in return for his right to recover his remuneration and expenses from the assets of the companies, such as they might be. The agreement between the CPS and the receiver so provided, and that provision was incorporated into the order of the court.”
“I describe this principle, namely that an unjust factor will not override a valid and subsisting legal obligation of the claimant to confer the benefit on the defendant, as the “Obligation Rule.””
"Modern authorities show that the courts are prepared, where it reflects commercial reality, to treat consideration as severable."
“The second argument of principle is that on a lease the risk passes to the lessee, as on a sale it passes to the purchaser (see per Lord Goddard in the Cricklewood case). But the two situations are not parallel. Whether the risk - or any risk - passes to the lessee depends on the terms of the lease: it is not uncommon, indeed, for some risks - of fire or destruction - to be specifically allocated. So in the case of unspecified risks, which may be thought to have been mutually contemplated, or capable of being contemplated by reasonable men, why should not the court decide on whom the risks are to lie? and if it can do this and find that a particular risk falls upon the lessor, the consequence may follow that upon the risk eventuating the lessee is released from his obligation.”
“destroyed or damaged” as in clause 7.3 which clearly had the same meaning of physical loss. Then the cesser only operated when the destruction or damage by Insured Risks was such: “as to render the Property unfit for occupation or use”
“demonstrates that the payment obligation will not, despite the Obligation Rule, of itself prevent a claim in unjust enrichment, [t]he position is however different if, as in this case, giving effect to a claim in unjust enrichment would be inconsistent with other provisions of the contract.”
“The question is whether there can be said to be a common purpose as between the EMA and CW, at the time of the Agreements, going beyond what was agreed upon in the Lease, which has been rendered radically different by supervening events.”
“Outside the terms of the Lease, the parties' purposes were not common, but divergent. The EMA was focussed on bespoke premises, with the greatest flexibility as to term, and the lowest rent. CW was focussed on long-term cash flow, at the highest rate, and was prepared to allow the EMA its say in the building's configuration, provided that this was not adverse to CW's interests. There was no common view or expectation between the parties that the risk of the consequences of the EMA abandoning its headquarters should be differently visited according to the reason for the EMA's departure. I find that it was CW's purpose that whatever the reason for the EMA's intended departure, it should be protected: and, from the terms of the Lease, the EMA knew this.”
“The grant of the demise is a necessary element for the Appellants to be able to use the Premises lawfully, such that without the demise, the basis will fail. But that does not mean that the basis cannot otherwise fail.”
“In case the Property…shall…be destroyed or damaged by any of the Insured Risks”, the clause then continues: “so as to render the Property unfit for occupation or use”
“the Property shall have been made fit for occupation and use” and by the proviso which gives the tenant the liberty to terminate the lease if the landlord cannot: “rebuild or reinstate the Property within a period of three years”
“Destruction of the Property” and begins: “if the Property or any part thereof is destroyed or damaged by any of the Insured Risks and requires the insurance monies to be laid out in the rebuilding and reinstatement of the Property”
“the money paid or payable to or by the Insured for tenancies and other charges and for services rendered in the course of the BUSINESS at the PREMISES”
“Nor is it enough to show that, had the parties foreseen the eventuality which in fact occurred, they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred.”
“67. However, as demonstrated by Roxborough (considered further below), invalidity of a relevant contract is not a necessary prerequisite to a successful claim in unjust enrichment. That is not to say that claims in unjust enrichment must not respect contractual regimes and the allocations of risk agreed between the parties. On the contrary, as explained by Professor Burrows in The Restatement (at 3(6)), an "often overlooked but crucial" element of the unjust factors scheme is: “…that an unjust factor does not normally override a legal obligation of the claimant to confer the benefit on the defendant. The existence of the legal obligation means that the unjust factor is nullified so that the enrichment at the claimant's expense is not unjust...” 68. This orthodox position in England was articulated in Kleinwort Benson ...at 407-408). Lord Hope identified that a third question for consideration was "Did the payee have a right to receive the sum which was paid to him?" That question was relevant as follows: “The third question arises because the payee cannot be said to have been unjustly enriched if he was entitled to receive the sum paid to him. The payer may have been mistaken as to the grounds on which the sum was due to the payee, but his mistake will not provide a ground for its recovery if the payee can show that he was entitled to it on some other ground.”” “…that an unjust factor does not normally override a legal obligation of the claimant to confer the benefit on the defendant. The existence of the legal obligation means that the unjust factor is nullified so that the enrichment at the claimant's expense is not unjust...” “The third question arises because the payee cannot be said to have been unjustly enriched if he was entitled to receive the sum paid to him. The payer may have been mistaken as to the grounds on which the sum was due to the payee, but his mistake will not provide a ground for its recovery if the payee can show that he was entitled to it on some other ground.””
“75. The Gaiduk Parties submitted that a claim in unjust enrichment functions as a "gap-filling" device which is in some way subsidiary to the law of contract, echoing remarks made by Australian judges in the past (see Pavey at 256; Roxborough at [75] and Mann at [22]). Provided that what is meant by this is properly understood, it can be seen to make sense: the claim in unjust enrichment is not allowed to contradict the terms in the contract. However, it should not be treated as meaning that the claim in unjust enrichment is in some way inferior or subsidiary to a claim in contract. Frederick Wilmot-Smith advances a sound criticism of the terminology in Contract and Unjust Enrichment in the High Court of Australia 136 LQR (April) 2020, 196-201 stating: “Since a court can… always let gains and losses lie where they fall, there is never a true "gap": it follows that there is only ever a "gap" if (for independent reasons) one concludes that there should be a restitutionary claim.” 76. Asplin LJ may have expressed the true meaning of the phrase "gap-filling" with the greatest clarity during the course of the hearing: it is not gap-filling "in the sense of seniority or a minority, or being junior". It is because there is no "space" for the law of unjust enrichment in particular claims. In this way, the law of unjust enrichment can be seen as complementary, though not subsidiary, to the law of contract.” “Since a court can… always let gains and losses lie where they fall, there is never a true "gap": it follows that there is only ever a "gap" if (for independent reasons) one concludes that there should be a restitutionary claim.”
“However, where the basis of the consideration is expressly and unconditionally spelt out on the face of a valid and subsisting contract, as here, there is no proper scope for inquiring into an alternative basis that is plainly contrary to the express basis freely agreed between the parties. It is not an inquiry that was carried out in Roxborough or Barnes where the basis that failed was one not at odds with (and indeed in the case of Roxborough expressly reflected in) the relevant contractual provisions.”