“1. The terms of the tenancy do not include the provisions of the Defendant’s Consolidated Charging Policy 2016/17 or 2017/18. 2. There is no implied term of the tenancy that the Claimant should pay charges in accordance with the Defendant’s Consolidated Charging Policy 2016/17 or 2017/18 3. There is no agreement between the Claimant and Defendant to vary the terms of the tenancy by the provisions of the Defendant’s Consolidated Charging Policy 2016/17 or 2017/18. 4. The terms of the tenancy have not been varied by the provision of the Defendant’s Consolidated Charging Policy 2016/17 or 2017/18. 5. The provisions of the Defendant’s Consolidated Charging Policy 2016/17 or 2017/18 are not incorporated into the tenancy.”
“42. As to paragraph 14: 42.1 The Charging Policies are relied upon, in company with other communications set out in Schedule 2 hereto, in support of the Defendant’s contention that it has at all times been made clear to the Claimants that they would be required to pay service charges, in respect of the costs referred to in paragraph 18.2 above, if and for so long as the Claimants remained in occupation of the Premises. 42.2 But the Defendant does not contend that any of its Charging Policies have impliedly retrospectively varied the Claimants’ existing service charge obligations and the Defendant does not contend that the relevant service charges are due pursuant to the Charging Policies (as opposed to the Claimants’ tenancy at will), as the Defendant has already explained to the Claimants in a letter dated6 August 2019 from the Defendant’s solicitors to the Claimants’ solicitors. The relevant service charges are instead due under the terms of the Claimants’ tenancy at will.” 42.1 The Charging Policies are relied upon, in company with other communications set out in Schedule 2 hereto, in support of the Defendant’s contention that it has at all times been made clear to the Claimants that they would be required to pay service charges, in respect of the costs referred to in paragraph 18.2 above, if and for so long as the Claimants remained in occupation of the Premises. 42.2 But the Defendant does not contend that any of its Charging Policies have impliedly retrospectively varied the Claimants’ existing service charge obligations and the Defendant does not contend that the relevant service charges are due pursuant to the Charging Policies (as opposed to the Claimants’ tenancy at will), as the Defendant has already explained to the Claimants in a letter dated6 August 2019 from the Defendant’s solicitors to the Claimants’ solicitors. The relevant service charges are instead due under the terms of the Claimants’ tenancy at will.”
“Cs have found themselves in the middle of an inter-NHS funding gap – but any budget cuts or restructuring within and between NHS bodies that D has faced does not alter the terms of the binding tenancies with Cs (and GPs nationally).”
“I wrote to you on 27th January and on 17th February but I have seen no response. As you know we have been trying for nearly 4 years to conclude a subletting of these premises to your clients. You may also be aware that following recent decisions in respect of the reorganisation of the NHS our client, the Hertfordshire PCT, will cease to exist in 2013. For this reason it is proposed that, notwithstanding all the efforts previously made, your client's occupation of the premises should now be dealt with by an assignment of the Lease, rather than a subletting of most of the premises. We have approached the Landlord's solicitors who have confirmed that there would be no objection to the assignment of the Lease, on the basis that your clients are entitled to rent reimbursement. The PCT have already, just, written to the Practice Manager to advise her of this proposal and you may already, or shortly, receive instructions. The subletting has been on the basis that our clients would retain the Training Room and I understand that it is presently being discussed as to whether this should continue and if so upon what basis. I understand that there are only two GP's in the Practice, but if there are more then (obviously up to a four in number) it would be proposed that the Lease should be granted to all of them. We would also then deal with an assignment, rather than subletting, of the car parking spaces. I should be grateful if you could confirm whether your clients have any objection to accepting an assignment so that we can prepare the appropriate documentation. My clients have indicated that they need matters to be concluded, one way or another, by30th May 2011 . Please could you acknowledge safe receipt of this letter and let me have a swift response so we have as much time as possible to meet the required timetable.”
“Sue suggested that if the GPs require the PCT to support their proposal of a main branch @ Valley View and a branch surgery @ Cuffley then they should complete the under lease of Valley View asap because without they have no security of tenure. They agreed to but were concerned that they have not seen a copy of the draft under lease, this is surprising given that the PCT's lawyer has been drafting and re-drafting following instructions from the GPs lawyer. Sue agreed to send a copy of the latest draft under lease and the GPs agreed to hastened their lawyer to complete the Valley View Lease asap”
“Hi Nicki would it be possible to meet with you to discuss the VV lease which we believe is being negotiated and also our ongoing lease at Cuffley as estates have informed us a large amount of building repairs are due at Cufflley,£40,000 to£60,000 next year as well as funding the service charge which is now£20,000 , we would be interested in discussing reducing our use of cuffley premises, as it is not finacially viable to continue with both sites current usage. Also staffing costs are duplicated, can you let us know dates you are free or who would be responsible for these matters Also access to the funds£30,000 savings of ours you have may help fund these costs.”
“£90K Service Charge at Goffs Oak — This has now increased to£95,085.70 as per the attached Completion Schedule. The reason this has not been charged previously is because the lease had not been completed between parties. Discussions have been had with our lawyers regarding this and we were advised of the potential risk that once we started charging, the GPs could have secured rights of occupation without any terms agreed and with the problems being experienced with their occupation at the Cuffley Surgery we took a view not to charge and to endeavour to complete the lease negotiations asap. The practice are aware of these costs and because it would cause them severe financial difficulites it has been agreed, as a condition of the Assignment that they will repay this amount over 12 monthly instalments.”
“As you can see this is a national problem with PCT's claiming accrued service charges from practices which do not have leases with PCT's 450 practices nationwide. As you will see in the articles, Peter Holden of the GPC is advising practices that there is no legal basis for the PCT to claim service charges from GP's if, as in our case there is no lease agrement. He is advising practices not to pay accrued service chares if there is no lease in place. We therefore are not agreeing to pay the accrued service charges presently, our solicitor is aware of our position and he has been in communication with your solicitors, please check with your solicitors, your will find we have not instructed our solicitor to agree to pay the accrued service charges, please do contact me if you wish to discuss or negotiate this further this further. Concerning the lease at valley view there is still a problem with the buiding warranties which make it difficult for us to sign a sublease. Our solicitor informs us these warranties are not transferrable to us. The PCT has offered to indemnify these however our solicitor does not advise this is legally possible, this problem with the warranties has been present for years, I do not know how it can be resolved,”
“Request the Practice advise NHS Property Services the date the Practice will execute a lease by 5.00pm GMT, Friday,31 July 2015 Request immediate payment in satisfaction of non-reimbursable charges for£72,412.94 , being the invoiced amount of£114,221.94 less the offered credit note of£41,809.00 Alternatively, should the Practice be unable to action immediate payment, we are not willing to extend to the Practice any further credit and will only negotiate a payment arrangement for the full amount of£114,221.94 ”
“Assuming that the draft lease is in a reasonable form I would see no reason why it shouldnt be completed by the end of August subject of course to the parties agreeing a mutually satisfactory schedule for repayment of the rent arrears and any historic service charges properly payable.”
“We write in connection with the ongoing discussions in relation to the Valley View surgery and, in particular, the rental and service charge costs that are alleged to be payable by the practice as a result of our occupancy. Having reviewed the position we cannot see the legal basis upon which these sums are payable by the practice as there is no agreement in place as between ourselves, hence why negotiations are ongoing over the possibility of us taking an assignment of the head lease that you hold. With this being the case our position is that we do not see that these sums are payable. To this regard, and albeit that we do not believe that any offer to pay any sums has been made, in the unlikely event that an offer to pay any recurring premises costs (including, without limitation rent and service charges) is perceived to have been made, please accept this e mail as our formal retraction of the same.”
“Dr Stone then mentioned that we shouldn't be paying for these service charges as we have not ever accepted the lease and we are not the tenants. It should be PCT who meant to pay these charges. He then showed us the guidelines from BMA which clarify his point. Dr Stone happy to contact the BMA and will advise us about the result later till then we should be holding/ block on to the other solicitors which thought we should be paying for these cost which is Gisby Harrison.”
“The Partners have been in occupation of the Premises since1 April 2007 without a documented sub-lease. The terms of their tenancy will determine whether or not service charges are payable. Ascertaining the terms will depend on all of the circumstances which relate to the Premises including any conversations and any documents. Where there is no history of payment for services (as is the case here), there is no separate contractual obligation to pay service charges. The mere fact of occupation of the Premises or use of services does not of itself create an obligation to pay for them. In such a case, payments of rent will be interpreted as being inclusive of services. For a contractual obligation to pay for services to exist, it would be necessary for the Partners to have agreed with the PCT or NHSPS that at a future date services might become chargeable in addition to rent. We are instructed the Partners did not agree anything of the like with NHSPS or its predecessor PCT. The lease that is in place, between JV and RJ Doshi and East and North Herts PCT dated13 December 2006 imposes an obligation for that tenant to meet the service charge demands. It is our understanding that the PCT, and subsequently NHSPS, have made payments to their landlord in line with that lease. There is no separate agreement to pass these costs down via the undocumented sub-tenancy. In emailed correspondence you have suggested that there is a common law duty for tenants to pay charges based on use and occupation of the Premises. We disagree. There can be an implied term to pay a fair and reasonable rent for the enjoyment of the land occupied', hence the rental reimbursements detailed above, but no such obligation exists in respect of service charges. In the circumstances, there is no obligation for the Partners to reimburse the costs that NHSPS have paid to their landlord and await your confirmation that such charges are no longer being sought.”
“We act on behalf of Cuffley and Goffs Oak Medical Practice and have issued a letter of claim to NHSPS via its lawyers - Bevan Brittan - regarding service charge disputes at numerous GP Practices. Cuffley and Goffs Oak Medical Practice are one of the claimant practices in that claim. In the circumstances, they will not be completing a new lease or discussing any alleged service charges until the matter is resolved with NHSPS.”
“As with other consensually-based arrangements, parties frequently proceed with an arrangement whereby one person takes possession of another's land for payment without having agreed or directed their minds to one or more fundamental aspects of their transaction. In such cases the law, where appropriate, has to step in and fill the gaps in a way which is sensible and reasonable. The law will imply, from what was agreed and all the surrounding circumstances, the terms the parties are to be taken to have intended to apply. Thus if one party permits another to go into possession of his land on payment of a rent of so much per week or month, failing more the inference sensibly and reasonably to be drawn is that the parties intended that there should be a weekly or monthly tenancy. Likewise, if one party permits another to remain in possession after the expiration of his tenancy. But I emphasise the qualification "failing more." Frequently there will be more. Indeed, nowadays there normally will be other material surrounding circumstances. The simple situation is unlikely to arise often, not least because of the extent to which statute has intervened in landlord-tenant relationships. Where there is more than the simple situation, the inference sensibly and reasonably to be drawn will depend upon a fair consideration of all the circumstances, of which the payment of rent on a periodical basis is only one, albeit a very important one. This is so, however large or small may be the amount of the payment.”
“To this I add one observation, having in mind the facts of the present case. Where parties are negotiating the terms of a proposed lease, and the prospective tenant is let into possession or permitted to remain in possession in advance of, and in anticipation of, terms being agreed, the fact that the parties have not yet agreed terms will be a factor to be taken into account in ascertaining their intention. It will often be a weighty factor. Frequently in such cases a sum called "rent" is paid at once in accordance with the terms of the proposed lease: for example, quarterly in advance. But, depending on all the circumstances, parties are not to be supposed thereby to have agreed that the prospective tenant shall be a quarterly tenant. They cannot sensibly be taken to have agreed that he shall have a periodic tenancy, with all the consequences flowing from that, at a time when they are still not agreed about the terms on which the prospective tenant shall have possession under the proposed lease, and when he has been permitted to go into possession or remain in possession merely as an interim measure in the expectation that all will be regulated and regularised in due course when terms are agreed and a formal lease granted.”
“Of course, when one party permits another to enter or remain upon his land on payment of a sum of money, and that other has no statutory entitlement to be there, almost inevitably there will be some consensual relationship between them. It may be no more than a licence determinable at any time, or a tenancy at will. But when and so long as such parties are in the throes of negotiating larger terms, caution must be exercised before inferring or imputing to the parties an intention to give to the occupant more than a very limited interest, be it licence or tenancy. Otherwise the court would be in danger of inferring or imputing from conduct, such as payment of rent and the carrying out of repairs, whose explanation lies in the parties' expectation that they will be able to reach agreement on the larger terms, an intention to grant a lesser interest, such as a periodic tenancy, which the parties never had in contemplation at all.”
“When a party holds over after the end of the term of a lease he does so, without more, as a tenant on sufferance until his possession is consented to by the landlord. With such consent he becomes at the very least a tenant at will and his continued payment of the rent is not inconsistent with his remaining a tenant at will even though the rent reserved by the former lease was an annual rent. The payment of rent gives rise to no presumption of a periodic tenancy. Rather, the parties’ contractual intentions fall to be determined by looking objectively at all relevant circumstances. The most obvious and most significant circumstance in the present case, as in Javad v Aqil, was the fact that the parties were in negotiation for the grant of a new formal lease. In these circumstances, as in any other subject to contract negotiations, the obvious and almost overwhelming inference will be that the parties did not intend to enter into any intermediate contractual arrangement inconsistent with remaining parties to ongoing negotiations. In the landlord and tenant context that will in most cases lead to the conclusion that the occupier remained a tenant at will pending the execution of the new lease. The inference is likely to be even stronger when any periodic tenancy would carry with it statutory protection under the 1954 Act which could be terminated by the tenant agreeing to surrender or terminating the tenancy by notice to quit: see Cardiothoracic Institute v Shrewdcrest Ltd[1986] 1 WLR 368 . This point is given additional force in the present case by the fact that the intended new lease, like the old lease, was to be contracted out.”
“The judge interpreted the reference by Nicholls LJ to the throes of negotiation as importing some requirement for a particular intensity of negotiations. But, in my view, it means no more than that the negotiations should be continuing in the sense that both parties remain of the intention that there should be a new lease on terms to be agreed. Mr Rosenthal for EHL accepted that one could have a case in which the negotiations either broke down or came to an end but the tenant was allowed to remain in occupation paying the rent and other outgoings. In time the correct inference in such a case might be that the parties had chosen to regulate their legal relationship by something other than the grant of a new long lease and a periodic tenancy might then be implied.”
“The Partnership assumed that the occupation of Valley View would be on terms similar to those of Cuffley. We were a tenant at Cuffley, but there was no written lease to start with and even when there was a written lease, there were no discussions nor demands nor bills for any service charges, and nor did we pay the PCT for any service charges.”
“In addition it has become apparent that the Service Charges at Cuffley Village Surgery are too expensive for the Practice to continue to be able to pay. Although we have not finalised a lease at the Valley View Surgery we understand the services charges there will be considerably less due to the fact that it is a modern building with modern technology.”
“A sum equal to the costs reasonably incurred by the Defendant in carrying out works (whether planned or reactive) of repair, maintenance, servicing, replacement or renewal of the boiler at the Property [the Valley View Premises], including its associated conduits, cables and media and in taking such other steps as may be necessary to ensure that the Property continues to enjoy hot water and space heating.”
“(3) To pay to the Council by way of additional rent a yearly sum equal to a proportionate part (calculated as mentioned below) of the costs, expenses and outgoings which the Council have incurred in the period of 12 months up to the preceding 1 April in each year in the repair, maintenance and renewal of the building of which the flat forms part and the provision of services undertaken by the Council (whether or not the tenant actually utilises those services) and of insuring the building subject to the following terms:”
“30. It is clear from these authorities that, in principle, the costs incurred by a local authority (or by any other landlord) in arranging for the provision of services, and managing their delivery, is properly regarded as part of the cost of providing the service which may be recovered from its tenants through an appropriately framed service charge covenant. The same is true of the overhead costs incurred in connection with the management and provision of services. In both cases it is necessary to respect any limits which the parties may have imposed on the categories of expenditure to which the service charge may relate (as in Norwich ).”
“31. In relation to overheads and indirect costs it will also be necessary to consider, as a question of fact, whether the relationship between the costs sought to be recovered and the services to which they are said to relate is sufficiently close to fall within the terms of the lease. The further from actual compliance with the landlord's obligations the incurring of the cost or expense lies, the more difficult it may be to treat it as part of the cost of compliance. The language of some leases may permit a more generous attribution of indirect costs to the service charge than that of others. 32. The cases also show that different approaches are possible to the calculation and apportionment of charges for management and indirect costs. 33. In some cases a fixed percentage has been added to the direct cost of the service (15% in the Brent case); in others the expenditure of an authority's relevant departments has first been analysed to identify the proportion referable to the management of its residential leasehold estate, and that proportion has been divided by the number of leaseholders to produce a contribution which all are required to pay (as in Norwich ); a third approach has been annually to identify the percentage of all expenditure on the leasehold estate represented by administration and overheads, and then to apply that percentage to the cost of the services provided to the particular estate, block or dwelling (as in Southwark ). 34. In South Tyneside Council v Hudson[2012] UKUT 247 (LC) the Tribunal (His Honour Judge Huskinson) allowed an appeal by the council in relation to the apportionment of the costs incurred by the arms length management company (“STH”) responsible for managing the whole of its tenanted and leasehold housing stock. The council's approach had been to attribute to its leasehold properties a proportion of the total management fee which it paid to STH for managing its entire estate; it then deducted a percentage for costs incurred in respect of specific properties (for example in dealing with requests for consent) which were recoverable from individual lessees; finally, it divided the resulting sum equally amongst all its leaseholders to arrive at a cost per flat. The council's standard lease expressly permitted it to recover the costs of managing the building of which the demised premises formed part, whereas its approach to apportionment made each leaseholder responsible for an equal share in the cost of managing every building in its residential portfolio. The Tribunal found nothing impermissible in that approach, and explained its reasons at paragraphs 40 and 41, as follows:”
“It is understood that the basis for NHSPS management fee calculation and charging is quite “binary”, and does not yet fully reflect the more nuanced approach seen as best practice in the broader commercial property market. Closer alignment with industry best practice should result in a more equitable basis for calculating management fees payable by occupiers and their commissioners so you will be pleased to find proposals to move in that direction in the Consultation Paper at Annex C (2).”
“When the G PCT was landlord, it provided all services required at the Premises. This included maintenance, cleaning, laundry, internal and external works (both minor and major), grounds maintenance and garden services, pest control, window cleaning, painting and decorating, portering services, fire safety and fire equipment checks, water / legionella checks, clinical waste and gritting. The gas, rates, water and electricity were all arranged by the G PCT as well. Everything was arranged by the G PCT.”
“Under the Tenancy, the Defendant, as landlord, is obliged to continue to provide the services referred to in paragraph 1 above unless the Defendant reasonably concludes that it is not necessary or appropriate to continue to provide one or more of those services at the Property.”
“The Claimants are liable under the Tenancy to pay on demand the Defendant’s reasonable costs of services reasonably provided; including (without limitation) the following services (whether provided on a planned or reactive basis):”
“I noticed that the charge had sort of gradually crept up a bit over the years. I spoke to Melanie Getgood from the G PCT about this. She used to be the head of care services property. She was the one who would come and look after the Premises. I cannot recall when I spoke to her, but I queried the rise and she told me that it would just rise in line with inflation. I was okay with that; we did not have any issue as it seemed to make sense.”
“Well, it just seemed to make sense because they went up a little bit each year. And so inflation seems to make sense, you know? That charges are going to go up in line with inflation, and that's fair enough.”
“42. I should start by saying something about the burden of proof under section 14A. The burden of proof in limitation cases rests on the claimant against whom the defence of limitation is pleaded. In my judgment it is for the claimant to establish that he has a claim which he can bring which is not statute barred (see in particular paragraph 21.10 of McGee on Limitation 5th edition, and the judgment of Lawton LJ in Ketterman v Hansel Properties Ltd[1985] 1 All ER 353 ). By the same token, it is for the claimant to satisfy the court that he lacked the requisite knowledge under section 14A until a point in time less than three years prior to the date on which the claim form was issued and or that the claim is one which meets the conditions ofCPR 17.4 and therefore falls within one of the permitted exceptions in section 35 of the Limitation Act (see e.g.CPR 14.4 and the decision of the Court of Appeal in Goode v. Martin ).”
“The parts of the Building occupied by the Claimants in the period since1 April 2013 have fluctuated over time. The parts of the Building currently occupied by them are shown cross-hatched turquoise on the occupation plan annexed to this Amended Defence and Counterclaim (“the Occupation Plan”).”
“As to paragraph 20 it is admitted that the cross-hatched turquoise area on the Occupation Plan is a true representation of the area that the Claimant currently occupies, save that the waiting area outside the podiatry room is for use by Gloucestershire Care Services and is not used by the Claimant. The parts of the building occupied have not fluctuated since 2012/2013 aside from taking up occupation of an additional space from 2017/2018. The Defendant is required to prove the varying occupancy percentages attributed to the Claimant in Schedule 1.”
“(a) the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made (b) the conduct of the parties, including any conduct which led the party making the admission to do so; (c) the prejudice that may be caused to any person if the admission is withdrawn; (d) the prejudice that may be caused to any person if the application is refused; (e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial; (f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the admission was made; and (g) the interests of the administration of justice.”
“What proportion of the subject building have the Claimants occupied in each of the service charge years to which the counterclaim relates?”
“Jayne Souter should be able to evidence the percentage breakdown held on file.”
“Thanks Colin. I can see that the increase now hasn’t been made previously for the additional space occupied. I’ve copied Cherri Webb in from the CCG so they are aware of the additional rent costs going forward. Can you confirm when the increase in rent will be applied and exact costs please.”
“5.2 Outgoings 5.2.1 To pay and indemnify the Landlord against all taxes assessments duties 5.2.2 To pay to the Landlord the apportioned cost of services supplied to the Premises including gas electricity and water such costs to be reasonably determined by the Landlord and payable by the Tenant quarterly on demand 5.2.3 To pay to the Landlord the cost of any external telephone calls made from the Premises quarterly on demand 5.2.4 To pay to the Landlord the apportioned cost of repairing maintaining and decorating the interior of the Premises on demand”
“Part of Bushbury Clinic Wolverhampton sketched red on the plan annexed hereto together with the right to use in common with the Landlord those parts of the Clinic sketched green on the said plan”
“[Premises] means 664 Square Metres (NIA) shown for identification only edged red on the Plan together with all additions alterations and improvements thereto carried out during the Term and all Landlord’s fixtures and fittings from time to time”
“You will recall that from when we sold St Andrews Medical Centre to the PCT in 2004, no service charge was agreed or levied until 2010/2011 when we verbally agreed to pay a charge in exchange for the standard PCT lease. Mike Webster at a meeting at St Andrews Medical Centre on10th August 2010 promised movement on the lease withing two to three weeks. Although we have had sight of a draft copy we have thus far had no approach from your solicitors. We also met with yourself and Jackie Emmett on the14th December 2010 when we had sight of a plan detailing occupation of the building. We jointly clarified occupation of several rooms which resulted in a reduction of our occupation. We have not as yet had sight of the revised plan. This plan detailing the percentage of occupation would be pivotal in calculating any service charge. To compound our dissatisfaction regarding the current state of limbo we find ourselves in, we have received demand for payment of a service charge for 2011/2012 which is an increase of 30% on the figures paid in 2010/2011. This has come without explanation or negotiation, As a result we will cease to pay any service charge with immediate effect until the lease is in place and reasonable service charges are agreed. We would be grateful if this could be given your urgent and full attention.”
“The annual service charge for the building is currently approximately£149113 , of which you are liable to pay 64.64%, based on the floor area that you occupy (please refer to the supplied floor plan). We envisage issuing service charge demands upon acceptance of these terms.”
“The use looks appropriate, but I aint signing this until we have also had a long chat with prop co about service charge. The rental value is less contentious as it is reimbursed by CCG but I would like Elaines assurance that that is the case before we commit to this document”
“Hmm This building has been in the ownership of the PCT and latterly the NHS prop co for many years A lease is in place which expires in 2019 We are keen to renegotiate a lease and clearly discussions need to occur before expiry of the current one We are adamant that the historical problems of communication and opaque billing schedules must be addressed before we can sign a new one We continue to question whether the charges are accurate and / or realistic and we have no confidence in the value for money we (or others for that matter) are getting through the current NHS prop co sub contractors At present it doesnt even appear that the sums we are being sent for water/rates/waste? from the CCG match the figures we are getting from NHS prop co. It would be great if both parties could liaise on that point because its nothing whatsoever to do with me. I merely pass the money along, and why I should have to do that is totally beyond me. It seems another opportunity for errors in billing / invoicing We have discussed this issue with legal representatives at this stage because this has to be addressed within a relatively short timescale The issue here is one of timescale and communication, which has been historically terrible A paper and email chase going back years has demonstrated an inability to get any response in a reasonable timescale Prop co have clearly accepted that records and comms going back beyond 15-16 are hopeless. In fact we can find no evidence of any schedules, nor have records of ever having been shown one or made aware of their existence. It is clear that 15/16, 16/17 and 17/18 at least have shown some semblance of an attempt to talk, however email trails will continue to show long periods of inactivity and we dispute that the info given to date answers our chief concerns. We do not accept that we have been given acceptable information in timely fashion We still do not accept that the figures plucked from the air for management are realistic, The new survey will I'm sure demonstrate a schedule of works that screams lack of active management) and we have absolutely no doubt that the figures we are seeing in schedules represent either guesstimates and/or poor value for money. Our legal advisers have also instructed us that we should not pay any of the requested sums at this stage”
“As stated previously, BMA law are now dealing with this and I will pass on your details. We have ceased in negotiations with NHSP. Please do not contact us again directly with regards to this.”
“Each of these extensions was, I find, negotiated subject to a condition that the extension should be the subject of a tenancy agreement approved by the court, excluding the operation of sections 24 to 28 of theLandlord and Tenant Act 1954 , and I find that it was understood and intended by both parties that until such order was obtained there would be no legally binding agreement between them, so that in principle at least both landlord and tenant were at any time free to resile from the negotiations.”
“I have held that the landlord and the tenant were in a series of negotiations between31 October 1983 and September 1985 and that all the extensions that were from time to time agreed during that period were agreed subject to a condition that an order undersection 38(4) of the Landlord and Tenant Act 1954 should be obtained. The parties were therefore, in my judgment, throughout that period in one of those classic circumstances mentioned by Scarman L.J. Indeed, had the parties not given and accepted rent during this period the case would, in my judgment, have been effectively unarguable on behalf of the tenant. The absence of a separate specific "subject to contract" condition makes no difference to this conclusion, for there is, in my judgment, implicit in a condition that the tenancy agreement negotiated between the parties should be subject to the making of a court order undersection 38(4) of the Landlord and Tenant Act 1954 , a term that unless and until the court order is obtained no legally binding grant or acceptance of the tenancy should be made.”
“In the typical case where the giving and receiving of rent leaves the court to infer the existence of a periodic tenancy it is on the footing that this is the interpretation which best fills the vacuum which the parties have left. Thus, in what used to be the ordinary, case of a tenancy unaffected by statutory prolongation or protection coming to an end, and the parties giving and receiving rent but not expressly agreeing on the creation of a new tenancy, the preferred solution that the law has adopted is a periodic tenancy, on the footing that that is what the parties must have intended or be taken to have intended. Ultimately it is the intentions of the parties in all the circumstances that determines the result of the giving and acceptance of rent.”
“The tenant's interpretation of a concluded grant of a tenancy protected by theLandlord and Tenant Act 1954 seems to me less compatible with the intentions of the parties in agreeing upon tenancy subject to the approval of the court under section 38(4) and paying and accepting rent in accordance with the terms of those proposed tenancies before they came into force than is a tenancy at will. It is clearly established that it is legitimate to have regard to relevant statutory protection in determining whether or not the acceptance of rent is a factor from which a new tenancy could be created: see per Lord Scarman in Longrigg, Burrough & Trounson v. Smith (1979) 251 E.G. 847, 849. Once one takes into account the machinery of theLandlord and Tenant Act 1954 and the parties' knowledge of its operation it seems to me very clear that they did not intend to create a periodic tenancy pending the grant which both sides anticipated of a tenancy approved by the court under section 38(4). Nor do I see any compelling reason why the court should impute such an intention to them if, as is factually perfectly possible, they gave no serious thought to the legal repercussions of the payment and acceptance of rent.”
“a fair proportion (to be determined by the Landlord’s surveyor acting reasonably) of the cost and expense of maintaining and as necessary repairing rebuilding redecorating and renewing cleansing the Common Part (“the Service Charge”)”
“To pay and discharge or in the absence of direct assessment to pay to the Landlord on demand a due proportion (determined by the Landlord at its discretion) of all rates taxes charges duties assessments outgoings and impositions whatsoever now or at any time during the Term charged rated assessed or imposed on or in respect thereof and to pay for all services utilities or amenities used by or available to the Premises (including all standing charges) and to indemnify the Landlord against any breach of the foregoing”
“The parts of the Building occupied by the Claimants have varied over time. The parts of the Building currently occupied by the Claimants are shown hatched turquoise on the plan marked “Current Occupation Plan” annexed to this Amended Defence and Counterclaim.”
“As to paragraph 18 it is admitted that the parts of the Building occupied by the Claimant has varied from time to time. However, the Defendant is put to proof in quantifying the Claimant’s occupancy proportion from time to time as set out in Schedule 2. It is admitted that the turquoise hatched area on the plan annexed to the Defence and Counterclaim is an accurate reflection of the Claimant’s current occupation.”
“Request: (6) Are the premises held over the same or different to the premises demised by the Lease and what changes to the extent of the premises occupied, if any, have there been since the grant of the Lease. Response Response (6). The premises held over are the same as those demised by the Lease.”
“So, while there was no change in the occupancy post-expiry of the lease, the lease plan was wrong, and all parties conducted themselves so as to charge for the ‘reality on the ground’ (i.e., pharmacy and areas occupied by PCT / NHS PS to be excluded) rather than as per the occupancy plan. C therefore invites the court to disregard the lease plan and not to base any determination upon it.”
“Hi Anita I've looked through the property charges information I took away from our meeting, and enclose a schedule for your attention. I've broken down the charges between those being, and not being, reimbursed. I can't get the figures to agree precisely hence the difference of£1,030 shown on the schedule. Nevertheless it is close enough for this purpose. I've then listed in further detail the charges not being reimbursed, as it is these you are really interested in. What stands out is the figure of£28,092 for "Planned Preventative Maintenance" which looks excessive. Also on the high side is Electricity and Oil which together come to£6,514 . I would normally expect a surgery of your size to have total light and heat costs of around£3,500 to£4,500 . Hope this helps to take matters forward with NHS Property Services. Good luck! Luke”
“I have recently had a meeting with my Accountants and discussed the health centre costs. We went through the property charges information and I enclose a schedule for attention. We have broken down the charges between those being, and not being, reimbursed. We cannot get the figures to agree precisely hence the difference of£1,030 shown on the schedule. However we feel it is close enough for this purpose. We then listed in further details the charges not being reimbursed, as it is these we are really interested in. What stands out is the figure of£28,092 for "Planned Preventative Maintenance" which looks excessive. Please could you provide a breakdown of what this covers. Also on the high side is Electricity and Oil which together come to£6,514 and our Accountant feels a surgery of our size to have total light and heating costs of around£4,500 . We look forward to hearing from you”
“I remember that two people from NHS PS turned up at the practice unannounced on20 September 2018 demanding payment. I still have the paper copy schedule that they gave me, which I have annotated with the date of the visit and the names of the people from NHS PS, being Patrick Keeble and Karen Pellow. I have retrieved the paper copy of this schedule to refresh my memory. The schedule is dated17 September 2018 and sets out the amounts NHS PS were saying at the time were owed by the practice to NHS PS for years 2017-2018 and 2018-2019; I note the amount outstanding was£57,798.76 . I also note that the schedule shows that nothing is outstanding until 2017-2018. I told them I didn’t realise that we owed anything. I just panicked and paid them with what I was told was a debt. I think I paid NHS PS the full amount.”
“Well it was all inclusive. She told me that it was all inclusive. Your rent and rates is all inclusive with your charges.”
“• In FY13/14 and FY14/15 NHS PS honoured the inherited charging structure from the PCT. In FY 13/14 and 14/15 the GP was charged the same all inclusive figure for the reimbursables (rent, rates, clinical waste & water), but nothing for non-reimbursable. The GP was able to claim the reimbursable elements from the commissioner and there is no debt owing for either year. We have been unable to clarify the occupancy for 13/14 and 14/15 (nor have the local Finance or Property Management Teams). • In FY 15/16 NHS PS changes the construct of billing to reflect the true cost of occupation. Invoices are broken down between Rent, Service Charge and FM. Whilst our data shows a shortfall of£1,503.03 for payments versus billings there appears to be no debt owing for FY 15/16. The occupancy is known to have been 90.74%”
“[If the Claimant’s primary position is wrong: The Claimant is also liable to pay over leasehold reimbursement costs in relation to relevant services provided and expenses incurred by the Defendant pursuant to the General Medical Services (Premises Costs) (England) 2004 and 2013 Directives (to the extent received by the Claimant).]”
“The Claimants are liable under the Tenancy to pay, on demand, the Defendant’s reasonable costs of services reasonably provided, including (without limitation) the following services (whether provided on a planned or reactive basis)”
“17 Res judicata is a portmanteau term which is used to describe a number of different legal principles with different juridical origins. As with other such expressions, the label tends to distract attention from the contents of the bottle. The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is “cause of action estoppel”
“The law, as I understand it, is this: if one party brings an action against another for a particular cause and judgment is given upon it, there is a strict rule of law that he cannot bring another action against the same party for the same cause. Transit in rem judicatam: see King C v. Hoare. 11 But within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again.”
“In the case of litigation the fact that a suit may involve a number of different issues is recognised by the Rules of the Supreme Court which contain provision enabling one or more questions (whether of fact or law) in an action to be tried before others. Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence:”
“The defendants are seeking a rehearing on evidence which, or much of which, so far as one can tell, they could have adduced on the earlier occasion if they had sought an adequate adjournment, which they would probably have obtained. Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter. The fact that he capitulated at the first encounter cannot improve a party's position. The Revlon point was open to the defendants in April 1979, notwithstanding that this court had not then decided that case. Some at least of the new evidence was readily available to them at that time.”
“Normally a factor of great, if not determinative, weight would be whether on that second application new evidence or other matters were to be brought to the court's attention which had not been before the court on the first application and which were substantially material to the exercise of the court's discretion in favour of the claimant. In such a case the judge might conclude that the interests of justice under the CPR overriding objective outweighed the public policy considerations of conservation of judicial resources in the interests of other court users under the overriding objective. Where, however, a second application introduced nothing that was not before the court on the first application it would normally be the case that the discretion to hear that application would not be exercised in favour of the claimant. He had made the identical application on the same materials. That had been rejected and he had not availed himself of the opportunity to appeal that decision. Any further hearing would therefore simply be in substance an appeal from the first decision. In as much as it would simply be a re−run of the previous hearing in the hope that another judge would arrive at a different conclusion, it would be using a commercial judge to provide a facility which was properly the function of the Court of Appeal. That, in my view, would be an abuse of process in the sense that it would be an impermissible use of the resources of the court.”
“120 For the purposes of the present case, I think that the principles in the cases can be summarised as follows: (1) The power of the court to grant declaratory relief is discretionary. (2) There must, in general, be a real and present dispute between the parties before the court as to the existence or extent of a legal right between them. However, the claimant does not need to have a present cause of action against the defendant. (3) Each party must, in general, be affected by the court's determination of the issues concerning the legal right in question. (4) The fact that the claimant is not a party to the relevant contract in respect of which a declaration is sought is not fatal to an application for a declaration, provided that it is directly affected by the issue. (5) The court will be prepared to give declaratory relief in respect of a “friendly action” or where there is an “academic question” if all parties so wish, even on “private law” issues. This may particularly be so if it is a “test case”, or it may affect a significant number of other cases, and it is in the public interest to decide the issue concerned. (6) However, the court must be satisfied that all sides of the argument will be fully and properly put. It must therefore ensure that all those affected are either before it or will have their arguments put before the court. (7) In all cases, assuming that the other tests are satisfied, the court must ask: is this the most effective way of resolving the issues raised. In answering that question it must consider the other options of resolving this issue.”
“42. As to paragraph 14: 42.1 The Charging Policies are relied upon, in company with other communications set out in Schedule 2 hereto, in support of the Defendant’s contention that it has at all times been made clear to the Claimants that they would be required to pay service charges, in respect of the costs referred to in paragraph 18.2 above, if and for so long as the Claimants remained in occupation of the Premises. 42.2 But the Defendant does not contend that any of its Charging Policies have impliedly retrospectively varied the Claimants’ existing service charge obligations and the Defendant does not contend that the relevant service charges are due pursuant to the Charging Policies (as opposed to the Claimants’ tenancy at will), as the Defendant has already explained to the Claimants in a letter dated6 August 2019 from the Defendant’s solicitors to the Claimants’ solicitors. The relevant service charges are instead due under the terms of the Claimants’ tenancy at will.” 42.1 The Charging Policies are relied upon, in company with other communications set out in Schedule 2 hereto, in support of the Defendant’s contention that it has at all times been made clear to the Claimants that they would be required to pay service charges, in respect of the costs referred to in paragraph 18.2 above, if and for so long as the Claimants remained in occupation of the Premises. 42.2 But the Defendant does not contend that any of its Charging Policies have impliedly retrospectively varied the Claimants’ existing service charge obligations and the Defendant does not contend that the relevant service charges are due pursuant to the Charging Policies (as opposed to the Claimants’ tenancy at will), as the Defendant has already explained to the Claimants in a letter dated6 August 2019 from the Defendant’s solicitors to the Claimants’ solicitors. The relevant service charges are instead due under the terms of the Claimants’ tenancy at will.”
“This policy is most relevant for currently undocumented tenancies however some parts are clearly flagged as not relevant to certain types of occupier or commissioner as other arrangements apply. More broadly, where a lease or other form of documentation is in place, the provisions of that document override any contradictory provision in this policy. Indeed, over time, it is intended that NHSPS should regularise all occupations, rendering some parts of this policy increasingly obsolete. In this context “regularise” means that either a lease, sub-lease, or an explicit formal agreement of some form is put in place to make the position between landlord and tenant/occupier absolutely clear.”
“We consider the admission by NHSPS in all five claims to be a very significant victory. NHSPS had for years been informing practices they had to pay higher service charges in line with the Charging Policy without proper explanation. The claims have now finally established that NHSPS could not do this. They could not rely on the Charging Policy in isolation as a legal basis to increase charges, as the BMA had said all along. They would have to look at any service charge increases on a case-by-case basis, looking at each of the five practice’s terms of occupation and explain how they say the Charging Policy applies, if at all. Through the legal action NHSPS had been forced to admit this. The practices proceeded to apply for declarations, but this was declined by the Court principally on the basis that the issue was no longer in dispute, so declarations were not required. NHSPS now needs to explain to each of the five practices the legal basis in the terms of tenancy or lease for any increased charges as well as providing an accurate detailed breakdown of all invoices and services allegedly provided.”
“(4) Mr Gaunt initially submitted that the BMA has an ulterior purpose in pursuing the applications, namely, that it will be used to encourage GPs not to pay service charges. However, he rightly stopped short of saying there is a risk that orders granting declarations might be misused. The BMA is, of course, a highly reputable organisation and I entirely accept that it would not in the BMA’s interests to misuse the declarations, if granted. That said, I have real concerns about the statements made in the BMA’s August letter. The letter shows there are difficulties in communicating both sides of NHSPS’s case; one side being that the policy did not vary the tenancies and was not incorporated, the other being that the policy is central to its entitlement to recover service charges. I consider there is a real risk that if the declarations are granted, only one side of the case will be reported and that GPs might be unwittingly misled. (5) I consider that, even if the absence of a dispute and the lack of utility are not of themselves sufficient reasons for declining to grant declarations, there are special reasons here why it would not be appropriate to grant declaratory relief. I am satisfied that the sort of recital Mr De Waal mentioned in the course of submissions would not be appropriate. Indeed, the very fact that such a ‘health warning’ might be necessary in the orders, suggests of itself there is a risk that the orders and declarations might be misunderstood.”
“29. The BMA would share the declarations with practices to outline the legal position and highlight the fact that the NHSPS charging policy is not automatically incorporated into their existing agreements. This will aid GPs and the practices in seeking clarification from NHSPS and in understanding their own situation.”
“Until we understand the legal basis you are relying on to increase charges, we will not be able to comment further or pay the disputed charges. We will in the meantime continue to comply with our existing legal obligations towards you of which we are aware.”