Punch Taverns Ltd & Anor v Swan Hospitality Ltd, Court of Appeal - Chancery Division, April 24, 2018, [2018] EWHC 905 (Ch)

Resolution Date:April 24, 2018
Issuing Organization:Chancery Division
Actores:Punch Taverns Ltd & Anor v Swan Hospitality Ltd
 
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Neutral Citation Number: [2018] EWHC 905 (Ch)

Case No: BL-2018-000539

IN THE HIGH COURT OF JUSTICE

THE BUSINESS AND PROPERTY COURT OF ENGLAND AND WALES

BUSINESS LIST

Royal Courts of Justice,

7 Rolls Buildings,

Fetter Lane, London,

EC4A 1NL

Date: 24/04/2018

Before:

THE HONOURABLE MR JUSTICE NORRIS

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Between:

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In Chambers

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Judgment ApprovedMr Justice Norris:

  1. There was a statutory arbitration between the appellants (``Punch'') and the respondent (``Swan'') under the Small Business, Enterprise and Employment Act 2015 (``the 2015 Act'')and the Pubs Code Regulations 2016 (``the Pubs Code''). It resulted in an award by the Pubs Code Adjudicator dated 16th February 2018 (``the Award'').

  2. An appeal can be brought against the Award under section 69 on the Arbitration Act 1996 (``the 1996 Act''). The outcome of the Award was adverse to Punch, who wish to appeal. They need the permission of the court under section 69 (2) (b) of the 1996 Act. That permission will only be given if the conditions set out in section 69 (3) are satisfied.

  3. The arbitrator determined that for the purposes of the Pubs Code a ``trigger event'' had occurred. What is a ``trigger event'' is determined by reference to section 43 (9) of the 2015 Act and regulation 7 of the Pubs Code. It includes a consideration of whether the ``trigger event'' now relied upon was ``reasonably foreseeable'' at the time when the tenancy was granted. In the instant case the ``trigger event'' was the opening of The Walnut Tree Farm public house on or near the Adanac Business Park three miles from the pub operated by Swan.

  4. In paragraph 36 of the Award the arbitrator noted the existence of a planning statement for the Adanac Triangle which referred to the proposed development of an amenity restaurant with ``weekday and Sunday carvery buffet''. He held:-

    ``On the evidence before me this information was in the public domain at the time of the grant of the lease and yet at that time neither party seems to be aware of it ... Whilst one might expect both parties to have had such local knowledge... on the evidence in this case it is apparent that neither party identified it at that stage. I therefore find in this case that the opening of a competitor business of the magnitude of the Walnut Tree Farm and the effect this would have on the pubs...

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