Bentley And Skinner (Bond Street Jewellers) Ltd v Searchmap Ltd

On an appeal based on allegedly new evidence, the evidence must be genuinely material to the issues decided below. Evidence which could not affect the relevant statutory or contractual question cannot justify permission or a retrial.

The appellate court may admit evidence of events occurring after the judgment where justice requires, but that discretion is exercised sparingly. Grounds not included in the permission to appeal or appellant’s notice will ordinarily be excluded, particularly where they would require further evidence.

Granting a new lease may operate as a surrender by estoppel of the former lease and associated statutory renewal rights. Those rights cannot revive unless the new lease is independently avoided. Avoidance requires an unequivocal election and may be barred by affirmation.

The Tenant appealed from a decision of the Central London County Court, where HHJ Green QC determined two preliminary issues in favour of the Landlord and dismissed the Tenant’s application for a new business tenancy.

The Landlord had relied on a redevelopment scheme and an undertaking to carry out the works. After the original lease terminated, the Tenant accepted a new five-year lease outside the security provisions of the Landlord and Tenant Act 1954. The Tenant later obtained evidence that the Landlord had acquired other premises before the preliminary-issues hearing and argued that this undermined the Landlord’s settled intention to redevelop.

The central issues were whether the new evidence justified appellate intervention or a new trial, whether later events could be admitted, and whether the grant of the new lease had extinguished the Tenant’s former statutory rights.

1. Appeal dismissed. The acquisition of the Albemarle Property could not have affected the preliminary issues. It was office accommodation and was not an alternative retail premises to No 8. Its acquisition therefore gave no proper basis for questioning the Landlord’s need for, or intended redevelopment of, No 8.
2. The alleged statement by Mr Clarke on 4 November 2002 could not falsify or materially undermine the tested evidence of Mr Graff at the original hearing. The allegation was also outside the permission granted to appeal and had been raised too late to permit an evidential response.
3. The court declined to admit further evidence about later events under the principles stated in Hughes v Singh (CA) 13 April 1989. The discretion to admit post-judgment evidence exists where justice requires, but is sparingly exercised. The Tenant had neither obtained permission on these grounds nor amended, or sought permission to amend, its Appellant’s Notice. The matters relied on were not cogent evidence that the Landlord lacked a settled intention at the relevant date and were consistent with a later change of commercial decision.
4. The New Lease operated by estoppel as a surrender of the former Lease and of all rights to a new tenancy under the Act. The parties intended their future relationship to be governed by the New Lease, and it would be inequitable after eight months’ reliance on it to revive the superseded relationship. This applied even to statutory rights which had expired but might otherwise revive on permission to appeal. The principle was supported by Gibbs Mews plc v Gemmell [1999] 1 EGLR 43.
5. Although section 64 had terminated the Lease and associated statutory rights, and permission to appeal could postpone the effect of a notice under Shotley Point Marina (1986) Ltd v Spalding [1997] 1 EGLR 233, no revival was possible following surrender by operation of law unless the New Lease was independently avoided. Any proposed fraud claim was hopeless: fraud and fraudulent inducement had no realistic prospect of proof, and the Tenant had affirmed the New Lease without making an unequivocal election to avoid it.

• High Court (Chancery Division): appeal from the decision of HHJ Green QC dated 10 July 2002; appeal dismissed.
• Central London County Court: the two preliminary issues were determined in favour of the Landlord and the Tenant’s application for a new tenancy was dismissed.