Rojer Taylor White v 29 Buckland Crescent Management Company Limited [2025] EWCA Civ 814

[2025] EWCA Civ 814Case No CA-2024-001552
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2024] EWHC 1480 (Ch)
ON APPEAL FROM THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES CHANCERY APPEALS (ChD)
Mr Justice Richards
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/06/2025
Before
LORD JUSTICE LEWISONLADY JUSTICE NICOLA DAVIESMR JUSTICE COBB
Between
ROJER TAYLOR WHITEAppellant29 BUCKLAND CRESCENT MANAGEMENTRespondentCOMPANY LIMITEDRespondent
Mark O'Grady (instructed by Keystone Law) for AppellantDaniel Bromilow (instructed by Teacher Stern LLP) for RespondentHearing Hearing date: 24/06/2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 30/06/2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]29 Buckland Crescent is a mid to late Victorian house divided into four flats. 29 Buckland Crescent Management Co Ltd (“the company”) is the registered proprietor of the freehold. Mr White is the lessee of Flat 2, which is the top floor flat. The issue on this appeal is whether the company was entitled to take proceedings seeking forfeiture of Mr White’s lease, or whether that was precluded by the terms of a settlement agreement dated 5th December 2021 (the “Settlement Agreement”) pursuant to which the company and Mr White had compromised an earlier dispute between them.[2]HHJ Dight CBE held that the company was precluded from seeking forfeiture; but Richards J disagreed with him. Richards J’s judgment is at [2024] EWHC 1480 (Ch). With the permission of Nugee LJ, Mr White appeals. In fact, Richards J granted Mr White relief against forfeiture on payment of the company’s costs on the indemnity basis. So, what this appeal is about is costs.[3]We heard short and well-focussed submissions from Mr O’Grady for Mr White, and Mr Bromilow for the company.

The facts

[4]Mr White occupies Flat 2 under the terms of a lease granted on 5 April 1980 to a predecessor in title. The term of the lease was 999 years from 24 March 1979. Clause 3 (1) of the lease contains a covenant in the following terms:
“At all times during the term granted to keep and maintain the demised premises and each and every part in good and substantial and tenantable repair and condition and in particular so as to support shelter and protect all parts of the Building other than the demised premises.”
[5]Clause 5 of the lease contains a proviso for re-entry, which relevantly provides:
“… if there shall be any breach of any covenant or agreement on the part of the Lessee herein contained then in any such case it shall be lawful for the Lessor at any time thereafter to re-enter upon the demised premises or any part thereof in the name of the whole…”
[6]During 2020 and 2021, a flat occupied by Ms Yalgin (who is the lessee of the same), immediately below Flat 2, suffered a number of serious leaks. Eventually the leaks were identified as having come from a bathroom in Flat 2. In addition, at this time, Mr White had not been paying services charges and administration charges demanded by the company.[7]In June 2020, a report from a firm called Aitchison Rafferty suggested that there were problems with the grouting and sealant between Mr White’s shower screen and the tiling in his shower. They recommended that the shower screen be removed, together with the tiles, and that the interior of the shower cubicle should be re-tiled and re-grouted with the shower screen refitted and correctly sealed.[8]On 3 July 2020 the company sent Mr White a notice to repair. But nothing happened immediately thereafter.[9]Further investigations were carried out in June 2021 by a firm called SOS Leak Detection. Their conclusion was that there was a visible fault in the grouting around the waste section of the shower floor. A failure in the junction between the area of the shower containing the shower tray and the tiles was identified and SOS Leak Detection concluded that the source of the leak was a crack between the tiles of the shower and the concrete area beneath it.[10]When Mr White instructed builders to do some work to enable the leak to be fixed, a further problem was revealed. The building company removed the plinth from the shower and suggested that the cause of the leak could be a crack in the concrete base to the shower.[11]HHJ Dight made no factual findings about the cause of the leak; and he did not need to.

Restrictions on forfeiture

[12]Section 168 of the Commonhold and Leasehold Reform Act 2002 relevantly provides:
“(1) A landlord under a long lease of a dwelling may not serve a notice under section 146(1) of the Law of Property Act 1925 (c 20) (restriction on forfeiture) in respect of a breach by a tenant of a covenant or condition in the lease unless subsection (2) is satisfied. (2) This subsection is satisfied if— (a) it has been finally determined on an application under subsection (4) that the breach has occurred, (b) the tenant has admitted the breach, or (c) a court in any proceedings, or an arbitral tribunal in proceedings pursuant to a post-dispute arbitration agreement, has finally determined that the breach has occurred. … (4) A landlord under a long lease of a dwelling may make an application to the appropriate tribunal for a determination that a breach of a covenant or condition in the lease has occurred.”
[13]This section precludes a landlord from serving a section 146 notice. It says nothing about the institution of proceedings for forfeiture.[14]In the case of long leases, restrictions on forfeiture for breaches of repairing obligations are imposed by the Leasehold Property (Repairs) Act 1938 (as amended). Neither of the judgments below address this Act. The 1938 Act applies to a covenant to keep or put property in repair where the lease has been granted for a term of not less than seven years and has more than three years to run. First, section 1(4) provides that a section 146 notice is not valid unless it contains a statement that the lessee is entitled to serve a counter-notice claiming the benefit of the Act, and specifying the time within which a counter-notice may be served. Second, sections 1 (1) and 1 (3) provide that if the lessee does serve a counter-notice within 28 days, then no proceedings for forfeiture or damages may be taken by the lessor, except with the leave of the court. Section 1 (5) sets out the grounds on which leave may be given. The most relevant of the grounds are:
“(a) that the immediate remedying of the breach in question is requisite for preventing substantial diminution in the value of his reversion, or that the value thereof has been substantially diminished by the breach; (b) … (c) … (d) that the breach can be immediately remedied at an expense that is relatively small in comparison with the much greater expense that would probably be occasioned by postponement of the necessary work; or (e) special circumstances which in the opinion of the court, render it just and equitable that leave should be given.”
[15]The 1938 Act applies to all types of lease with more than three years to run (apart from certain agricultural tenancies). It is not restricted to residential property. Thus, it applies in parallel with, and in addition to, the restrictions on serving a section 146 notice contained in section 168 of the 2002 Act.[16]In my judgment, the 1938 Act is an important part of the legal background against which the Settlement Agreement must be interpreted.

The applications to the FTT

[17]On 24 May 2021 the company issued three applications in the FTT. The first was an application for an order that a breach of covenant or condition in the lease had occurred. The grounds of that application were stated thus:
“The shower room in the respondent’s flat is not in good, substantial and tenantable repair and has caused multiple water leaks into the flat below, and hence the respondent is in breach of Clause 3.1”
[18]It must be inferred that the first application was made in pursuance of section 168 (4) of the 2002 Act.[19]The second application was an application for a determination of Mr White’s liability to pay service charges. The third was an application for a determination of Mr White’s liability to pay an administration charge.[20]All three applications were compromised on the terms of the Settlement Agreement.

The Settlement Agreement

[21]The company and Mr White entered into the Settlement Agreement on 5 December 2021. Both Mr O’Grady and Mr Bromilow criticised the quality of the drafting of the Settlement Agreement. I agree that it leaves much to be desired.[22]The company was defined as “Party A” and Mr White as “Party B”. Recital A to the Settlement Agreement recited various matters of background and referred to the three applications which were defined as the “Proceedings”.[23]Recital B recorded that:
“Party A is the holder of an insurance policy with Allianz for the Building (The Insurance Policy). Party B has made a claim against the Insurance Policy in respect of the repairs required to the bathroom of the Property (The Works).”
[24]As HHJ Dight noted, there was no comprehensive statement of what the “Works” consisted of. But he held at [76]:
“… there are indications that the expression “the works” encompassed the work necessary to put the bathroom into repair, as well as the refurbishment. At the very least, it seems to me that the use of the expression “the works” goes beyond what was necessary to fix the leak and potentially beyond what was necessary to put the bathroom into the state contemplated by the covenant in the lease.”
[25]There is no challenge to that finding.[26]Recital C recorded that:
“The parties have settled their differences and have agreed terms for the full and final settlement of the Proceedings and wish to record those terms of settlement, on a binding basis, in this agreement.”
[27]Clause 4 stated:
“[Mr White] admits the breach of Clause 3(1) of the Lease as set out in [the company’s] Application under Section 168(4) Commonhold and Leasehold Reform Act 2002 dated 24th May 2021.”
[28]Clause 5.1 required Mr White to pay the company £75,000 in two instalments. The first was £50,000 to be paid on or before 20 December 2021. The second was £25,000 to be paid on or before 5 March 2022. Clause 8.1 stated that those sums were inclusive of the company’s costs; but they must also have included some or all of the service charges and administration charges claimed to be due. The judge said that HHJ Dight made no findings as to the amount of service and administration charges that were in dispute and, accordingly, it was not known whether this was an agreement for the company to receive all, or part only, of the sums that it considered to be due. We, however, were shown the amounts claimed; and it transpired that the amount that Mr White agreed to pay in accordance with clause 5 was far in excess of the claim.[29]Clause 5.3 provided:
“[Mr White] shall remedy the breach of Clause 3 (1) of the Lease by 28th January 2022 by carrying out the Works.”
[30]Clauses 6 and 7 are at the heart of the dispute and must be set out in full:
“6 Release This agreement is in full and final settlement of, and each party hereby releases and forever discharges, all and/or any actions, claims, rights, demands and set-offs, whether in this jurisdiction or any other, whether or not presently known to the parties or to the law, and whether in law or equity, that it, its Related Parties or any of them ever had, may have or hereafter can, shall or may have against the other party or any of its Related Parties arising out of or connected with the Proceedings. 7 Agreement not to sue 7.1 Each party agrees on behalf of itself and on behalf of its Related Parties not to sue, commence, voluntarily aid in any way, prosecute or cause to be commenced or prosecuted against the other party or its Related Parties any action, suit or other proceeding concerning the Proceedings, in this jurisdiction or any other. 7.2 Clause 6 and Clause 7.1 shall not apply to any claims in respect of any breach of this agreement.”
[31]I refer to clause 7.2 as the “carve out”.[32]Clause 10.2 provided that in case of breach “of this agreement” by Mr White the company would be entitled to recover their costs of enforcement on a full indemnity basis.

The current dispute

[33]Mr White did not complete the Works by 28 January 2022. On 9 March 2022 the company’s solicitors served what was described as a draft section 146 Notice on Mr White alleging breach of the repairing covenant in clause 3(1) of the lease. The section 146 notice contained the statement required by section 1(4) of the 1938 Act. Unaccountably, Mr White did not serve a counter-notice claiming the benefit of the 1938 Act. He would have saved himself a lot of trouble if he had. The company followed that up with a claim form seeking forfeiture of the Lease on the grounds of non-compliance with clause 3(1) that was served on or around 26 April 2022. The Particulars of Claim pleaded:
“The Defendant has failed to keep the bathroom of his property in good substantial and tenantable repair as required by clause 3 (1) of his Lease.” (Emphasis added)
[34]They then referred to the Settlement Agreement and Mr White’s admission of breach and continued:
“In clause 5.3 of the said agreement the Defendant agreed to remedy his breach of covenant by no later than 28th January 2022 by carrying out the necessary remedial works. The Defendant has failed to carry out the necessary remedial works and remains in breach of the terms of his lease.” (Emphasis added)
[35]Thus the gist of the claim was an allegation of breach of the terms of the lease.[36]Paragraph 6 of the Particulars of Claim referred to the section 146 notice (which was attached to the pleading).[37]The Defence was that the claim was precluded by the terms of the Settlement Agreement.

Interpretation of the Settlement Agreement

[38]There are no special rules applicable to the interpretation of settlement agreements or releases: BCCI v Ali [2001] UKHL 8, [2002] 1 AC 251. The ordinary principles of contractual interpretation apply. Those principles are well settled and there is no need to paraphrase them yet again. There is only one particular point that needs to be made; and that is that the Settlement Agreement must be interpreted in the legal context in which it was made: see, for example The Financial Conduct Authority v Arch Insurance UK Ltd [2020] EWHC 2448 (Comm), [2020] Lloyd’s Rep IR 527 at [76]. That legal context includes the 1938 Act.[39]Recital C made it clear that the parties had settled their differences. That, to my mind, demonstrates an intention to draw a line under the matters that had led to the applications to the FTT and to enter into a new arrangement for the future. Clause 6 of the Settlement Agreement could hardly be expressed in wider terms. It encompasses:
“all and/or any actions, claims, rights, demands and set-offs, whether in this jurisdiction or any other, whether or not presently known to the parties or to the law, and whether in law or equity, that it, its Related Parties or any of them ever had, may have or hereafter can, shall or may have against the other party or any of its Related Parties arising out of or connected with the Proceedings.”
[40]Not only does that clause include claims known to the parties, but it also includes unknown claims, including claims unknown to the law. Those claims include not only claims “arising out of” the Proceedings (as defined) but also claims “connected with” the Proceedings. In my judgment, clause 6 would have encompassed any claim arising out of the same facts as those that gave rise to the Proceedings, i.e. claims relating to the condition of the bathroom in Mr White’s flat, which would, at the very least, be claims “connected with” the Proceedings.[41]Clause 7.1 spells out the consequences of the release in clause 6. It precludes the initiation of further proceedings “concerning the Proceedings” (i.e. concerning the matters raised in the three applications to the FTT and released by clause 6). Mr Bromilow, on behalf of the company, accepted that the combination of clauses 6 and 7.1 precluded the initiation of forfeiture proceedings, unless they fell within the carve out in clause 7.2.[42]The carve out, by contrast, is much more limited in scope. It is limited to “claims in respect of any breach of this agreement”. It did not extend to breaches of any other agreement (including breaches of the lease). Although the Settlement Agreement contained an admission by Mr White that he was in breach of clause 3(1) of the lease, that did not amount to any kind of obligation in the Settlement Agreement that could be breached. The relevant obligation in the Settlement Agreement was that in clause 5.3; namely the agreement to remedy the breach of clause 3 (1) by carrying out the Works by 28 January 2022. Mr O’Grady therefore argued that the carve out applied only to breaches of the Settlement Agreement itself, and did not extend to breaches of the lease based on the same underlying facts.[43]This accords with the general effect of a compromise. As Sir David Foskett explains in Foskett on Compromise (10th ed para 8-02):
“Given the normal meaning, purpose and effect of a compromise, the natural inference is that the parties’ common intention is that the compromise will henceforth govern their legal relationship in connection with the disputes in which they had been engaged. Accordingly, those disputes would still be regarded as “dead” even in the event of breach of the compromise. In these circumstances, recourse to the original claims will not be permitted unless, upon a true construction of the compromise, it is clear that this is what the parties intended. In this context, whilst the matter is primarily one of construction, the nature of the consideration furnished by the parties may operate as a pointer.”
[44]At this stage it is pertinent to note the difference between the obligation contained in clause 3 (1) of the lease and the obligation contained in clause 5.3 of the Settlement Agreement. Clause 3 (1) of the lease contains a continuing obligation to keep the property in repair throughout the term of the lease. Clause 5.3 by contrast is an obligation to carry out a particular package of works (even though undefined) by a particular date. Breach of clause 3 (1) is a continuing breach; whereas breach of clause 5.3 is a “once for all breach”. Moreover, as HHJ Dight held, the Works required to be carried out under clause 5.3 went beyond those required by clause 3 (1) of the lease. It follows, therefore, that breach of clause 5.3 cannot be equated with a breach of clause 3 (1) of the lease.[45]Mr Bromilow argued that if the carve out bore the meaning for which Mr O’Grady contended, then it was a redundant clause, since clause 2 of the Settlement Agreement had already stated that the agreement was immediately fully effective and binding. That submission found some limited traction with the judge, although he observed at [43]:
“It might be observed that contracts drafted by lawyers not infrequently include statements of the obvious. Indeed, Clause 7.2 might not, even on Mr White’s interpretation, be as much of a statement of the obvious as the Landlord suggests. One can quite envisage a reasonable, but pedantic, reader of the Settlement Agreement asking whether the general exclusion in Clause 6 prevented any claim from being brought for breach of the Settlement Agreement itself and finding nothing unusual about that query being addressed expressly in Clause 7.2.”
[46]I agree. The argument from redundancy, particularly in a poorly drafted contract, rarely carries much weight.[47]There is an additional point, namely whether in any event the forfeiture clause in the lease was wide enough to encompass a breach of the terms of the Settlement Agreement. This point was raised at the outset of the appeal, and Mr Bromilow was content to deal with it.[48]A forfeiture clause is a right to terminate a lease before its expiry date on the happening of a specified event or events. The specified events are typically late payment of rent, a breach of covenant by the tenant, or the tenant’s insolvency. Where a contract, which for this purpose includes a lease, contains a power for one party to terminate it on a specified event it must be shown that the trigger for the termination falls fairly and squarely within the description of the specified event.[49]In addition, the courts have traditionally leaned against a forfeiture. In Croft v Lumley (1858) 6 HL Cas 672 one of the questions that arose was the scope of a forfeiture clause in a lease of the Opera House. Giving his opinion to the House of Lords, Channel B said at 1467:
“… for the purpose of answering this third question, I assume the existence of a breach of both covenants in the first and second questions mentioned. I am of opinion, then, that there was such a right of re-entry. I think that the condition ought to be construed with this amount of strictness, that it ought clearly to appear that the condition was meant to include and did incorporate the covenant on the breach whereof the right to re-enter is claimed; but that the question whether the covenant itself is broken (having once ascertained that the condition for re-entry applies to and includes it) is to be determined by reference to the rules which prevail in construing ordinary contracts between party and party.” (Emphasis added)
[50]The carve out referred to claims in respect of breach of the Settlement Agreement; not to breach of obligations contained in the lease. The forfeiture clause in clause 5 of the lease, however, entitles the landlord to forfeit if there is a breach of “any breach of any covenant or agreement on the part of the Lessee herein contained.” In other words, the right to forfeit is confined to breaches of covenant contained in the lease itself. It does not extend to breaches of obligations contained in different agreements, such as the Settlement Agreement.

The application under section 168

[51]The judge placed considerable emphasis on the admission of breach in clause 4 of the Settlement Agreement. In the end, that seems to me to have been the decisive reason why he found in the company’s favour. But in order to evaluate that conclusion it is necessary to give further consideration to section 168. He said: “[55] First, Mr White has identified no legal consequence of an admission specifically tied to s168(4) other than that admission conferring entitlement on the Landlord to serve a s146 Notice in respect of the breach so admitted. That raises the obvious inference that, viewed objectively, the parties agreed that if Mr White did not comply with his obligations under the Settlement Agreement, and if the breach of Clause 3(1) therefore persisted, the Landlord could bring Forfeiture Proceedings. [56] Second, that interpretation is supported by the relevant factual matrix. Mr White and the Landlord did not enjoy a harmonious relationship. Leaks from the Flat had caused Ms Yalgin considerable difficulties. At the time of the Settlement Agreement, the Landlord only had Mr White’s word that he would perform the Works as he had agreed to. There is no suggestion that Mr White and the Landlord had reached a complete reconciliation of their difficult relationship. The Settlement Agreement had simply compromised particular disputes between them.” (Original emphasis)[52]In my judgment this underplays the significance of section 168 and the reasons why an application might be made for a determination of breach. In Bedford v Paragon Asra Housing Ltd [2021] UKUT 266 (LC), [2022] L & TR 7 the Deputy President (Martin Rodger QC) upheld the refusal by the FTT to strike out a claim for a determination that a breach had occurred. In the course of his decision he considered the availability of remedies other than forfeiture. He said:
“[46] I do not accept that the availability of alternative remedies for the breach of covenant was an irrelevant consideration in the FTT’s assessment of whether the application was an abuse of process. On the contrary, it was highly relevant. The most obvious alternative remedy that a landlord might seek in the face of a persistent breach of covenant by its tenant would be an injunction compelling the tenant to comply, either by requiring that he terminate the current sub-tenancy or by prohibiting any future sub-letting. Mr Gallivan also referred to the possibility of a claim for compensatory damages on a negotiating basis, as had been directed, for example, by Lightman J in Crestfort v Tesco [2005] L & TR 20 where commercial premises had been sublet in breach of covenant. [47] Either of these remedies, an injunction or damages, could be sought by Paragon in proceedings in the County Court in which the primary remedy sought was forfeiture. Damages could be sought in addition to forfeiture and an injunction as an alternative to forfeiture. A waiver of the right to forfeit for the breach would not provide a defence to either type of claim (although waiver might be relevant to the exercise of the Court's discretion to grant an injunction if no further breach has been committed since Paragon last demanded rent). Whichever remedies Paragon chose to pursue it would be essential for it first to be determined whether a breach of covenant had occurred; if it wished to forfeit it was essential that the determination of breach be made by the FTT.”
[53]This point was brought into sharp focus in Eastpoint Block A RTM Co Ltd v Otubaga [2023] EWCA Civ 879, [2023] 1 WLR 3896. The issue in that case was whether a right to manage company was entitled to apply for a determination under section 168, even though it was not entitled to exercise the right of forfeiture. I said at [38]:
“It is true that section 168(1) is concerned with paving the way to a forfeiture. But an application to the FTT under section 168(4) is not, itself, a proceeding for forfeiture. It may be a necessary precondition to the exercise of a right of forfeiture, but it is a discrete and separate step. The mere fact that the FTT has found the existence of a breach of covenant may itself persuade the tenant to cease the activities complained of or remedy the breach without the need for further action. Alternatively, it may, for example, be the prelude to obtaining a judgment from the County Court for an injunction or damages; or a charging order; or enabling the landlord to serve notice under section 146 of the Law of Property Act 1925 and forfeit the lease. A determination under section 168(4) is no more than a declaration that a breach has taken place and cannot without more be enforced in the County Court: compare Termhouse (Clarendon Court) Management Ltd v Al-Balhaa [2022] 1 WLR 1529 (dealing with determinations of the amount of service charge payable).”
[54]In the same case, Andrews LJ, having referred to previous cases, said at [48]:
“These cases demonstrate that, despite the fact that section 168 appears under the general heading “forfeiture of leases of dwellings”, although a determination under section 168(4) may be a step on the path to forfeiture, that is not its sole function. In making an application under section 168(4) the applicant is doing no more than seeking to obtain a determination by a specialist tribunal that may be used for a number of purposes including (but not limited to) the service of a notice by the landlord under section 146. If such a determination may be sought and obtained in circumstances where forfeiture is no longer an option (eg where there has been a waiver of the right to forfeit, or the breach has been remedied), the applicant cannot be exercising a function of forfeiture in asking the FTT to make such a determination.”
[55]In the present case there can be no doubt that the company achieved something useful by making the application under section 168. In place of the general obligation to repair contained in clause 3 (1) of the lease, it had the benefit of an obligation on Mr White’s part to carry out work which went beyond the scope of that covenant; and moreover, a deadline by which the work had to be done. In addition, it had a promise from Mr White that if the company had to enforce that obligation he would pay its costs on an indemnity basis. These benefits accruing to the company as a result of the application and the Settlement Agreement cannot be dismissed as insubstantial.[56]In addition, even if the landlord is entitled to serve a section 146 notice, where the Leasehold Property (Repairs) Act 1938 applies the remedy of forfeiture may still not be available. At the date when the Settlement Agreement was reached, the company could have had no real confidence that it would, in due course, be entitled to forfeit, because Mr White could have been expected to claim the benefit of the 1938 Act. On the contrary, having regard to the legal background against which the Settlement Agreement was made, the reasonable reader of that agreement would naturally assume that if a section 146 notice were served, the lessee would claim the benefit of the 1938 Act, and that the landlord would have considerable difficulty in obtaining leave to forfeit a long and valuable lease. Thus, contrary to what the judge said at [55], the parties could not have agreed that if Mr White did not comply with his obligations under the Settlement Agreement, and if the breach of clause 3(1) therefore persisted, the company could forfeit the lease. That would have depended on whether Mr White claimed the benefit of the 1938 Act and, if he did, whether the court would have granted leave to bring proceedings. The fact that he, unaccountably, did not must have come as an unexpected windfall for the landlord.[57]As Mr Bromilow candidly accepted, actually forfeiting a valuable long lease of a flat is virtually impossible.

Conclusion

[58]Mr Bromilow accepted that the claim in the current dispute was a claim alleging breach of clause 3 (1) of the lease. But he submitted that there was also a breach of clause 5.3 of the Settlement Agreement, with the consequence that the current claim fell within the scope of the carve out. I disagree. Since the allegation in the Particulars of Claim relied on breach of the terms of the lease (as opposed to breach of the terms of the Settlement Agreement) I consider that, in respectful agreement with HHJ Dight and disagreement with the judge, the current dispute was precluded by the terms of the Settlement Agreement; and in particular clauses 6 and 7.1. As HHJ Dight put it at [100]:
“In my view, the parties reshaped their bargain in respect of the subject matter of the original dispute with the effect that …(i) the causes of action which fall within clause 6 of the agreement were discharged by the settlement agreement; and (ii) new causes of action would arise from future breaches of the terms of the settlement agreement which the parties were entitled to access or enforce via clause 7.2. That means, in my judgment, that it might have been open to the landlord to sue for specific performance of Clause 5 or, alternatively, to seek damages for breach. It seems to me that the effect of confining the parties’ rights to breaches of the agreement meant that the claimant gave up its right to forfeit for breach of covenants in the lease in this instance as is accepted to be the effect of clause 6. Clause 7.2 is not a sufficiently wide gateway to enable the landlord to revert to that remedy.”
[59]I agree.[60]In my judgment, the ordinary meaning of the Settlement Agreement, read in the context of the lease and the legal background, did not permit the company to forfeit for breach of clause 5.3. It follows, therefore, the company was not entitled to forfeit for breach of the obligation in clause 5.3 of the Settlement Agreement, because that was not an obligation contained in the lease. Nor was it entitled to forfeit for breach of clause 3 (1) of the lease, because that was not an obligation contained in the Settlement Agreement.[61]The ordinary meaning of the words used, interpreted against the background of the lease, is reinforced in my view by a consideration of why an application under section 168 might be made.

Result

[62]In my judgment, the carve out in clause 7.2 of the Settlement Agreement did not entitle the company to forfeit the lease. I would allow the appeal.[63]I agree.[64]I also agree.