Smartestenergy Business Limited v Odeon Arcade Limited [2025] EWHC 2975 (Ch)

[2025] EWHC 2975 (Ch)Case No CH-2025-000101
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY APPEALS (ChD)
ON APPEAL FROM THE ORDER OF DEPUTY ICC JUDGE AGNELLO KC DATED 19 MARCH 2025
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 14/11/2025
Before
THE HONOURABLE MR JUSTICE CAWSON
Between
SMARTESTENERGY BUSINESS LIMITEDAppellantODEON ARCADE LIMITEDRespondent
Mr Eoin MacLachlan (instructed by Wedlake Bell LLP) for AppellantMr Andrew Shipley (instructed by Whitmore Law Solicitors) for RespondentHearing Hearing date: 5 November 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 14 November 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This is an appeal from the order of Deputy ICCJ Agnello KC (as she then was) (“the Judge”) dated 19 March 2025 whereby she restrained the Appellant, Smartestenergy Business Limited (“SBL”), from giving notice of or advertising a winding up petition (“the Petition”) presented on 2 April 2024 against the Respondent, Odeon Arcade Limited (“Odeon”), and dismissed the Petition with costs.[2]Permission to appeal was granted by Richard Smith J on 16 July 2025.[3]SBL was represented before me by Mr Eoin MacLachlan of Counsel, and Odeon by Mr Andrew Shipley of Counsel. I am grateful to them both for their helpful oral and written submissions.[4]The appeal concerns the proper interpretation of paragraph 3(1) of Schedule 6 to the Electricity Act 1989 (“the 1989 Act”), which provides as follows:
“(1) Where an electricity supplier supplies electricity to any premises otherwise than in pursuance of a contract, the supplier shall be deemed to have contracted with the occupier (or the owner if the premises are unoccupied) for the supply of electricity as from the time (“the relevant time”) when he so began to supply electricity.”

Background

[5]The Petition was based upon a debt of £106,914.25 alleged by SBL to be due and payable by Odeon in respect of the supply of electricity to Odeon at Units 8a, 9a and 12 Odeon Arcade, Leicester LE1S HJ in respect of the period from 13 July 2021 to 30 April 2023, and ongoing standing charges. The Petition relied upon invoices having been issued to Odeon in respect of this debt, which had not been paid.[6]As to the basis of the alleged liability of Odeon to SBL, the Petition pleaded that this arose:
“… pursuant to a contract deemed in the circumstances prescribed by para 3(1) of Schedule 6 of the Electricity Act 1989 (as amended) by virtue of [Odeon] being an owner and/or occupier of the Supply Premises.”
[7]The issue before the Judge was whether Odeon could dispute, in good faith and on substantial grounds, that the debt upon which the Petition was based was due for payment, in which case the proper course was to restrain the giving of notice of, or advertisement of the Petition, and to dismiss it – see e.g. Angel Group Limited v British Gas Trading Limited [2012] EWHC 2702 (Ch) at [22].[8]Odeon advanced a number of grounds before the Judge upon which it sought to argue that the debt upon which the Petition was based was disputed in good faith and on substantial grounds.[9]In a judgment handed down on 19 March 2025 (“the Judgment”), the Judge rejected all the grounds advanced for disputing the debt apart from one ground that turned upon the true interpretation of paragraph 3(1) of Schedule 6 to the 1989 Act. In short, the Judge decided that paragraph 3(1) could not apply to Odeon because it was not in occupation of any part of the relevant premises, which were let by Odeon as three units to different occupying tenants, and the premises were not “unoccupied” so as to make Odeon liable to pay for the electricity supply as “owner”.[10]The factual position on the ground at the relevant time, as identified in paragraph 7 of the Judgment, was as follows.[11]Odeon has at all relevant times been the freehold owner of 1-9 Odeon Arcade, Leicester LE1S HJ (“the Arcade”), having acquired the Arcade on 13 July 2021, the date from which electricity supply charges are alleged by BPL to have become due to it from Odeon.[12]However, at all relevant times, and as the Petition itself recognises, the Arcade was split into a number of units, including those identified in the Petition, namely Units 8a, 9a, and 12. These units were let to occupying tenants under tenancy agreements that imposed an obligation on the tenant to:
“ … pay all charges for the Property for electricity, water, telephone and other utilities.”
[13]However, there was only one electricity meter serving the three let units, albeit that there may have been unofficial sub-meters capable of measuring the electricity used by each unit. Subject thereto, there was nothing to measure the electricity consumed by the individual units.[14]As a result of the non-payment of invoices submitted to Odeon, which Odeon denies having received, the electricity supply was disconnected by SBL on 20 February 2023.[15]It was SBL’s case before the Judge that, as a matter of true statutory interpretation thereof, the reference to “premises” in paragraph 3(1) of Schedule 6 is a reference to the entirety of the premises served by a particular meter on the basis that supply of electricity must be by reference to a meter, i.e. in the present case Units 8a, 9a and 12 and any common parts associated therewith. On this basis, it is SBL’s case that the expressions “occupier” and “unoccupied” have to be interpreted consistently therewith such that, in a situation such as the present where the premises served by the meter are split into units let to individual occupying tenants, those premises served by the meter are to be regarded as “unoccupied” because there is no occupier of the whole premises served by the meter. The result of this is, on SPL’s case, that the “owner”, here Odeon, is subjected to the deemed contract provided for by paragraph 3(1) of Schedule 6.[16]On this basis, it was SBL’s case that Odeon was liable to pay for the supply of electricity to the “unoccupied” “premises” for the relevant period between 30 July 2021 and 30 April 2023. The debt of £106,914.25 identified in the Petition was based thereupon, and it is SBL’s case that if its interpretation of paragraph 3(1) is correct, then there can be no substantial dispute as to the debt upon which the Petition is based and that it should be allowed to proceed.[17]It was Odeon’s case that the word “unoccupied” in paragraph 3(1) required to be interpreted in accordance with its ordinary meaning and as no part of the relevant premises owned by Odeon was “unoccupied”, Odeon could not properly be held to be the subject matter of a deemed contract of the kind provided for by paragraph 3(1). On Odeon’s case the liability for the payment for the supply of electricity fell upon the tenants of the respective units, either on the basis that the three units constituted separate “premises” for the purposes of paragraph 3(1) making them liable for the supply to their particular unit under separate deemed contracts, or if “premises” did mean the whole of the premises supplied by the electricity meter, making the tenants liable on a joint and several basis as parties to the deemed contract.[18]It was recognised for the purposes of the hearing below, and indeed for the purposes of this appeal, that although the test for there being a dispute in good faith and on substantial grounds is essentially the same as the real prospects of success test applicable in a summary judgement application, as with summary judgment, if a short point of law, or of interpretation arises, and all the evidence that might be relevant to the issue is before the court, then the court can properly determine the point of law or interpretation in deciding the application – see e.g. Easyair Limited v Opal Telecom Limited [2009] EWHC 339 (Ch) at [15(vii)].

The Judgment

[19]The Judge rejected SPL’s interpretation of paragraph 3(1) of Schedule 6 and held that the reference therein to “premises” related to the units/premises which were occupied by the respective individual occupying tenants. As she put it in paragraph 19 of the Judgment:
“The clause (sic) operates primarily to deem a contract between the supplier and the occupiers or occupier of premises. Premises here, in my judgment, relates to the premises which are occupied by the relevant occupier. There is no justification to seek to read premises as having to relate to the entire premises over which an owner is the freeholder. Under the terms of the paragraph, the owner is only liable under a deemed contract if the premises are unoccupied.”
[20]Consequently, the Judge found that as the premises were not “unoccupied, Odean could not be the party subject to the deemed contract and liable to pay for the supply of electricity. The Judge considered that this accorded with the natural meaning of the words used in paragraph 3(1) of Schedule 6, and the overall purpose behind the relevant statutory provisions.[21]It is helpful to consider how the Judge dealt, at paragraphs 16 to 18 of the Judgment, with a number of arguments advanced before her by Mr MacLachlan on behalf of SBL, before she concluded as she did in paragraph 19 of the Judgment.[22]At paragraph 16,

the Judge said this:

“16 Mr MacLachlan submits that this construction is supported by certain canons of construction. He submits that an alternative interpretation that all tenants are liable produces absurd or unworkable results. He submits that this could not have been Parliament’s intention that occupants of one unit which is part of the ‘premises’ would be liable for the supply to other units which form part of the entire premises. In my judgment, this unfairness only really exists in so far as ‘premises’ in paragraph 3(1) refers to the entire premises. If the reference to premises is only to the premises which are the subject matter of the lease and the tenant’s occupation, the unfairness asserted would not arise.”
[23]I believe that the point that the Judge is making at the end of paragraph 16 is that whilst unfairness might arise from tenants of the respective units being treated as jointly and severally liable for the supply of electricity to the premises as a whole covered by a particular meter, the unfairness does not arise if “premises” for the purposes of paragraph 3(1) is interpreted as meaning the particular premises occupied by the individual tenant, i.e. their particular unit.

The Judge went on in paragraphs 17 and 18 to say:

“17. Secondly, Mr MacLachlan submits that the interpretation of all the tenants being liable for the electricity supply to the entire premises cannot be reconciled with the supplier’s statutory right to ‘disconnect the premises’ where the customer has not, within the requisite period, made all the relevant payments. This arises pursuant to paragraph 2(1) of Schedule 6. He submits that the construction that all the tenants are liable for the electricity charges would mean that if part of a bill remains unpaid, then even those who have paid their share would be disconnected. He submits this is an absurd outcome. In my judgment, this point again depends upon the construction of ‘premises’ being a reference to the entire premises. As with the earlier point, Mr MacLachlan’s construction strains the natural language used in paragraph 3(1) which refers to premises and not to entire premises. It is agreed by the parties that in accordance with the Interpretation Act 1978 the singular refers also to the plural so the provision is to be read as referring to occupier or occupiers. This therefore means that paragraph 3(1) envisages occupiers of premises. Moreover, the ability of the Creditor to disconnect when the bill has not been paid is exactly what occurred in this case. It does not lead to an unfair outcome, but allows the Creditor to disconnect due to non-payment of the electricity charges to the premises. That is what has occurred in this case. 18. The Creditor submits that the purpose of the deeming provision is to address an inefficiency in the energy market which would arise if suppliers have to formally contract with new occupants of buildings every time a building gained a new occupant. There would be a wait before a new occupant could be guaranteed a supply of electricity because of having to wait for a contract with a supplier. I am not persuaded that the mischief is to promote market efficiency or importantly, that the more natural construction which the Creditor argues against in some way fails to promote market efficiency. Mr MacLachlan did not provide any real justification to support his purpose and mischief argument as in some way meaning that deeming was necessary in all cases and that a failure to be able to deem in certain cases was against the purpose of the provision. In certain cases deeming may not be appropriate and the supplier would seek to negotiate express contracts. The provision enables contacts to be deemed in certain circumstances which can assist both the supplier and also the occupier, but this will depend on the factual circumstances. In every case, it seems to me, actual contracts can be entered into by way of an alternative. Meters could be installed to the separate units. In this particular case, as the outstanding electricity bill which covered separate units has not been paid for a considerable period of time, the supply was disconnected. It is no part of the Creditor’s case that in some way it is not possible to install separate meters.”

Ground of Appeal

[25]There is only one ground of appeal, namely that:
“… the Court erred in law in finding that, as a matter of interpretation of paragraph 3(1) of Schedule 6 to the Electricity Act 1989, where an electricity supplier is supplying premises without an agreed contract and there are multiple, unrelated occupiers of the premises, those occupiers (and not the owner of the premises) are the subject matter of a deemed contract with the electricity supplier.”

Correct approach to statutory interpretation

[26]The authoritative guide as to how to approach statutory interpretation is now provided by what was said by Lord Hodge DPSC in Regina (O) v Secretary of State for the Home Department [2022] UKSC 3, [2023] AC 255, at [29]:
“29 The courts in conducting statutory interpretation are “seeking the meaning of the words which Parliament used”: Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 per Lord Reid. More recently, Lord Nicholls of Birkenhead stated: “Statutory Interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. (R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 396.) Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, p 397: “Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.”
[27]Mr MacLachlan highlighted that each Act has a purpose, and that each enactment within an Act has a purpose, to be understood within the larger purpose of the Act. He therefore submitted that, in order to construe any enactment, it is necessary to ascertain its purpose. He cited what was said by Lord Nicholls in Barclays’s Mercantile Finance Ltd v Mawson [2004] UKHL 51, [2005] 1 AC 684 at [28]:
“The modern approach to statutory construction is to have regard to the purpose of a particular provision and interpret its language, so far as possible, in a way which best gives effect to that purpose.”
[28]In considering the purpose, the court may consider the “mischief” which the enactment is intended to remedy. In R v Z (Attorney General for Northern Ireland’s Reference) [2005] UKHL 35 at [17], Lord Bingham said:
“… the interpretation of a statute is a far from academic exercise. It is directed to a particular statute, enacted at a particular time, to address (almost inevitably) a particular problem or mischief.”
[29]Mr MacLachlan identifies that a recognised canon of construction is the rule against absurdity. He cites what was said by Lord Briggs JSC in Settlers Court RTM Co Ltd v FirstPort Property Services Limited [2022] UKSC 1, [2022] 1 WLR 519 at [54]:
“It is well established that the court will lean against a construction of legislation which produces absurd or unworkable results, if there is an available alternative construction which does not do so.”
[30]With regard to the ordinary meaning of words and phrases, I note that Bennion, Bailey and Norbury on Statutory Interpretation say this at paragraph 22.1:
“(1) The starting point in statutory interpretation is to consider the ordinary meaning of a word or phrase, that is its proper and most known signification. (2) If there is more than one ordinary meaning, the most common and well established is preferred (other things being equal). (3) Other interpretive criteria (including the purpose of the enactment and the context) may, however, quickly drive the interpreter to one of the other meanings.”

SBL’s case on appeal

[31]SBL’s case on appeal is, in essence, as follows.[32]In submissions, Mr MacLachlan, on behalf of SBL, placed great emphasis upon the purpose behind the statutory deeming provision in paragraph 3(1) of Schedule 6 to the 1989 Act. He submitted that it was a provision that was designed to achieve certainty in the situation where electricity was being supplied to premises where there was no contract in place between the supplier and the user of the electricity supplied. He submitted that the imposition of a deemed contract in this situation was of benefit to the customer in that it gave the customer the assurance of a continuation of supply, and of benefit to the supplier in that it provided a legal basis for recovering payment for the supply of electricity without having to rely upon some form of quantum meruit.[33]As to the purpose behind the relevant provision, reference was made to an extract from a final report entitled “Deemed Contracts” produced in c. June 2006, by Ofgem’s Duty to Supply, Contracts and Information workgroup, where, under the heading “Deemed Contracts” it was said:
“The group notes that deemed contracts play a vital role in the energy market. The nature of supply is such that it would be inefficient, given current metering technology, to disconnect premises when a customer had moved out and reconnect the premises upon application for a contract by a new occupant. In addition, suppliers may not always be aware of customer movements until a period of time has elapsed after the event. A deemed contract therefore seeks to provide a sound and binding basis upon which suppliers will supply customers where a contract has not been expressly agreed. It also provides suppliers with a clear basis upon which to charge for that supply.”
[34]Mr MacLachlan submitted that the purpose of achieving certainty in the situation where no contract existed between the supplier of electricity and the consumer was a key consideration that informed how paragraph 3(1) of Schedule 6 ought to be construed.[35]Mr MacLachlan emphasises the importance of an electricity meter in providing the basis for charging for electricity, pointing to paragraph 1(1) of Schedule 7 to the 1989 Act which provides that:
“(1) Where a customer of an [authorised supplier] is to be charged for his supply wholly or partly by reference to the quantity of electricity supplied, the supply shall be given through, and the quantity of electricity shall be ascertained by, an appropriate meter.”
[36]On this basis Mr MacLachlan submitted that where one has premises supplied by one meter that are split into units, as in the present case, the reference to “premises” in paragraph 3(1) of Schedule 6 to the 1989 Act must be to the premises as a whole incorporating all the units because the supply must be taken to be to the metered premises, not least because that is the only way to achieve any degree of certainty so far as charging is concerned.[37]This then raises the question of the meaning of “occupier” in paragraph 3(1). As to this, Mr MacLachlan took me to a number of authorities that show that the word has no fixed meaning in statutory provisions, and will take its meaning from the particular context – see e.g. Cornerstone Telecommunications v Compton Beauchamp [2022] 1 WLR 3360 at [102] per Lady Rose JSC. In this case, at [106], and having referred to the observations of Lord Nicholls in Graysim Holdings Ltd v P & O Property Holdings Ltd [1996] AC 329 at 334-335, and of Lord Mustill in Southern Water Authority v Nature Conservancy Council [1992] 1 WLR 775 at 781, Lady Rose JSC went on to say:
“I respectfully agree, the starting point here is not to try to define the word “occupier” and then allow that definition to mandate how the regime established by the code works. The correct approach is to work out how the regime is intended to work and then consider what meaning should be given to the word “occupier” so as best to achieve that goal.”
[38]Adopting this approach on the present facts, it is submitted on behalf of SBL that the best, and indeed the only effective, way to achieve the objective behind paragraph 3(1) of Schedule 6 to the 1989 Act would be by construing “occupier” as being the occupier, if any, of the whole of the premises served by the relevant meter, and to the extent that there is no such occupier, e.g. because the premises are split into units with different occupiers, then, for the purposes of paragraph 3(1), the premises are to be treated as “unoccupied” so as to impose the deemed contract on the owner, here Odeon.[39]Mr MacLachlan used as an example to demonstrate his point the example of a townhouse split into a number of rooms or flats that are let out, with only one meter serving the house. He submitted that it would be wholly impractical if anyone apart from the landlord/owner were the party to the relevant deemed contract given the difficulties that would be created if the occupiers of the individual rooms or flats were a party to the relevant deemed contract, either individually or jointly and severally.[40]On the Judge’s finding, the individual tenants would be subject to a deemed contract relating to their particular room or flat, being the “premises” for the purposes of paragraph 3(1), and they would be responsible for payment of the electricity supplied thereto albeit there was no meter in place to record their usage. The alternative analysis, considered by the Judge in paragraph 16 of the Judgment was that the “premises” are, for the purposes of paragraph 3(1), the entirety of the premises served by the meter, with the individual tenants being jointly and severally liable, perhaps also with the landlord in respect of common parts, for the whole metered supply. Mr MacLachlan submitted that this would, in each case, be a recipe for conflict and unfairness that cannot have been anticipated by the legislation.[41]In the circumstances, Mr MacLachlan submitted that the only sensible interpretation is that advanced by SBL.[42]He further submitted that, on proper analysis, there is not as maintained by Mr Shipley on behalf of Odeon, any inherent inconsistency or difficulty with regard to other provisions of the “Electricity Code” provided for by Schedule 6 to the 1989 Act, or with other provisions of the 1989 Act, including those where the same phraseology, “the occupier (or the owner if the premises are unoccupied)”, is used.[43]One particular example relied upon by Mr Shipley on behalf of Odeon is paragraph 2 of Schedule 6, where, pursuant to paragraph 2(1), it is provided that the supplier may install a prepayment meter, or disconnect the premises, for non-payment. Paragraph 2(2)(a) provides that before any such action is taken, then 7 working days’ notice prior is to be given to “the occupier of the premises (or the owner of the premises if they are unoccupied)”. Mr Shipley’s point is that one would expect the legislation to provide for notice to be given to the actual occupier being the party most obviously affected by any disconnection, rather than the owner. Mr MacLachlan submits that there is no inherent problem with notice being given to the landlord owner, and he points out the difficulty of disconnection if not related to the whole of the premises supplied by the relevant meter.

Determination

[44]Mr MacLachlan’s submissions on behalf of SBL were well and persuasively argued. However, I am not persuaded that they lead to the right conclusion.[45]I consider it important to focus upon the fact that the key issue is as to whether Odeon, as an “owner” of “premises” is subject to a deemed contract because the “premises” are to be regarded as “unoccupied” for the purposes of paragraph 3(1) of Schedule 6 to the 1989 Act. The key word to be interpreted is “unoccupied”, albeit that such word requires to be interpreted in context, and by reference to, amongst other things, the purpose behind the paragraph 3(1), the Electricity Code as a whole within Schedule 6, and the other provisions of the 1989 Act.[46]As to the interpretation of “unoccupied”, the issue is as to whether it is limited to meaning unoccupied in the ordinary sense of nobody occupying the whole or any part thereof, or whether the meaning also extends to include, as contended by SBL, the situation in the present case where the whole is not occupied as a whole, but individual units making up the whole are occupied by individual occupants.[47]I take the point made by reference to what was said by Lady Rose JSC in Cornerstone Telecommunications v Compton Beauchamp (supra) at [106] that the particular word or expression sought to be interpreted should be informed by the purpose or intention behind the legislation, rather than the other way round, and that one does need to consider how the deemed contract regime provided for by paragraph 3(1) of Schedule 6 was intended to work, and the purpose behind it, before fixing on the meaning of “unoccupied”, or indeed the meaning of “premises” or “occupied”.[48]However, the starting point in statutory interpretation remains to consider the ordinary meaning (or meanings if there are more than one) of a word or phrase. As the passage fromRegina (O) v Secretary of State for the Home Department at [29] referred to in paragraph 26 above demonstrates, there is good constitutional reason for this in the importance of citizens, with the assistance of their advisers, being able to rely upon what they read in an Act of Parliament in seeking to understand what Parliament has enacted.[49]It is certainly true that the expression “occupied”, and therefore the expression “unoccupied”, might have different meanings according to the context. However, as a matter of ordinary parlance, it does, I consider, strain the language, if not contradict it, to describe premises that are occupied by a number of tenants, enjoying separate demised premises, as unoccupied. Indeed, as a matter of the application of the ordinary meaning of words, I find it difficult if not impossible to say that any part of the premises served by the relevant meter in the present case was “unoccupied” given that tenants were in occupation of the three units thereat.[50]As the authorities that I have been referred to demonstrate, a recognised canon of construction is the rule against absurdity, and therefore the courts will lean against a construction of legislation which produces absurd or unworkable results, if there is an available alternative construction which does not do so.[51]I regard it as a moot point as to whether, in the present case, an interpretation that might actually contradict the ordinary meaning of “unoccupied” is an “available alternative construction”. However, I am not persuaded that the interpretation as found by the Judge to be the correct interpretation does produce such an absurd or unworkable result that one is required to adopt an interpretation of the word “unoccupied” that at best strains the ordinary meaning of that word, and at the worst contradicts it.[52]The construction contended for by SBL certainly produces a more certain result so far as the operation of paragraph 3(1) of Schedule 6 is concerned, and one that is more helpful to electricity suppliers in a situation such as the present where it can simply proceed against the owner of the relevant premises in the event of non-payment for electricity charges. However, that is rather different from an absurd or unworkable result.[53]The other keywords within paragraph 3(1) are “premises” and “occupier”. If the interpretation contended for by SBL is rejected, then there are, as I see it, three possibilities: i) Firstly, the position as found by the Judge, namely that “premises” means the individual premises or units demised to the tenants who were, respectively, the occupiers thereof and liable as such for the electricity supplied to their premises; ii) Secondly, that the “premises” are the whole of the premises served by the relevant electricity meter, with the consequence that there was only one deemed contract with all three tenants that had the effect of making them jointly and severally liable to SBL for the electricity supplied to the premises as a whole; or iii) Thirdly, a possibility not covered in submissions, namely the “premises” are the whole of the premises served by the relevant electricity meter there and was one deemed contract was with the three tenants, but it was an implied term of that deemed contract that the tenants should only be personally liable to SBL for the electricity that they actually used. This would be on the basis that such a term of the deemed contract was to be implied by necessary implication.[54]Each of these scenarios, including the one as found by the Judge to be the correct analysis, does give rise to potentially difficult apportionment exercises as between the respective tenants, but does not, I consider, produce an absurd result or an unworkable one. As pointed out by Mr Shipley, the courts are used to having to apportion liability where necessary to do so.[55]Further, I consider it important to bear in mind that the present case provides something of an extreme example or edge case, with the invoices sent to Odeon remaining unpaid for a significant period of time without any objection with regard to its liability to pay being made by Odeon, for whatever reason. In this respect, I note that there is a dispute between the parties with regard to whether Odeon did, in fact, receive the relevant invoices. It says not, with matters only coming to a head after the Petition had been presented.[56]However, in most cases, one would expect matters to come to a head very much more quickly. Had Odeon objected more promptly, as one would expect would ordinarily be the case, then liability could have been asserted as against the individual tenants leading to a practical solution being achieved through either the provision of separate meters to the respective demised premises, or some arrangement come to as between the tenants as to how bills were to be shared. I note in this context the powers within the legislation to force a meter upon a user of electricity on threat of disconnection in paragraph 1 of Schedule 7 to the 1989 Act.[57]In particular, paragraph 1(5) of Schedule 7 provides that:
“(5) If the customer refuses or fails to take his supply through an appropriate meter provided and installed in accordance with sub-paragraphs (2) and (3) above, the supplier may refuse to give or may discontinue the supply.”
[58]This provision thus anticipates a situation where electricity is being supplied to a customer who does not have an individual meter, and effectively allows the supplier to say that unless a meter is installed, then the supply will be discontinued.[59]So far as the townhouse example is concerned, I would have thought it unlikely, in the real world, that problems regarding the operation of paragraph 3(1) would often arise. In practice, if the premises as a whole are served by only one meter, then one would have thought that the tenants are likely to have had in place an arrangement between themselves as to how electricity was to be paid for, or that there was an arrangement that the landlord would pay the bills and recoup the same through a higher rent or a service charge. It is difficult to see that tenants would commonly take a tenancy of part of a townhouse of the kind identified by Mr MacLachlan, or indeed any other premises, unless one of these regimes were in place.[60]In short, I consider that the practical considerations that are said by SBL to support its interpretation of paragraph 3(1) of Schedule 6 are overstated, and that they are insufficient to lead to the conclusion that the court should adopt a construction of the word “unoccupied” that does, frankly, do significant violence to the language of paragraph 3(1).[61]Further, I agree with Mr Shipley that other provisions of Schedule 6 to the 1989 Act, and elsewhere in the 1989 Act do, if anything, support the Judge’s interpretation. With regard to paragraph 2(2)(a) of Schedule 6, one would logically expect the legislation to be designed to ensure that notice was given to the parties most directly affected by the disconnection of supply, namely the party in occupation actually using the electricity. Similar considerations arise in respect of paragraph 7(5) of Schedule 6, relating to the power of entry on the part of an electricity supplier to enter premises to remove or install a meter. Again, provision is made for notice to be given to “the occupier (or the owner of the premises if they are unoccupied)”.[62]A further marked example is paragraph 6 of Schedule 6. Paragraph 6(1) creates an offence where a person intentionally or by culpable negligence damages or allows to be damaged any electrical line or electrical plant provided by electricity distributor, or an electricity meter provided by an electricity supplier. Paragraph 6(2) and (3) provide that where such an offence has been committed under paragraph 6(1), then the distributor or supplier (as appropriate) may disconnect the premises, and in the case of the supplier remove the meter. However, this is expressed to be the case where the offence has been committed by “the occupier of any premises (or by the owner of the premises if they are unoccupied when the offence is committed).” If SBL is correct in its interpretation, then this would mean that if a tenant committed the relevant offence, the powers under paragraphs 6(2) and (3) would not arise, which does not make a great deal of sense.

Conclusion

[63]I therefore conclude that the Judge was right to find that Odeon did not become liable under a deemed contract imposed by paragraph 3(1) of Schedule 6 to the 1989 Act, and therefore that Odeon was not liable to pay for the electricity supply which was the subject matter of the Petition. The Judge was therefore entitled to restrain SBL from giving notice of or advertising the Petition, and correct to dismiss the Petition.[64]The appeal is therefore dismissed.