John Aldis Secures Reverse Summary Judgment in Pre-Emption Clause Dispute

John Aldis secured a reverse summary judgment against the Claimant lessor of a public library who was claiming specific performance of a right of pre-emption. The Claimant sought an order requiring the Defendant lessee Council to offer to sell the lease to the Claimant.

The pre-emption clause states that: “if the County Council desires to assign or underlet the whole of the Demised premises as aforesaid it shall first by notice in writing to the Lessor offer to surrender this Lease…”.

The Claimant argued that this clause required the Council to make the offer because it had expressed a desire to underlet the premises (before aborting the proposed disposition).

John argued that the words “it shall first” imposed no obligation on the Council to make the offer until immediately before it entered into a binding contract to underlet the premises (as held in Bircham & Co Nominees (No.2) Ltd v Worrell Holdings Ltd [2001] 3 E.G.L.R. 83, CA and Tiffany Investments Ltd v Bircham & Co Nominees (No.2) Ltd [2004] 2 E.G.L.R. 31, CA).

HHJ Johns KC agreed that (a) the Claimant had no real prospect of distinguishing the Court of Appeal caselaw at trial; and (b) the Court should grasp the nettle of deciding this short point of construction now (per Lewison J in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch)).