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Kate Stephenson, partner at Kirkland & Ellis International LLP, predicts that Debenhams’ High Court victory will become the leading case on company voluntary arrangements (CVAs).
Discovery (Northampton) Ltd and others v Debenhams Retail Ltd and others  EWHC 2441 (Ch)
The market will adjust to reflect the court’s ruling that a CVA cannot vary a right of forfeiture (because it is a proprietary right). There may, however, be grounds to say that landlords have waived their right to forfeit, including where they voted in favour of the CVA or treat the lease as continuing post-CVA (including by accepting rent).
Recent years have seen a notable increase in UK retail and casual dining companies using CVAs to deal with burdensome leases and other liabilities.
The court’s judgment on each of the applicants’ grounds of challenge was as follows.
Decision—as a matter of principle, it was not ‘unfair’ that a landlord might receive less than its contracted for rent in certain circumstances. The court noted unchallenged evidence that valuation advice was that all stores were ‘over- rented’. A CVA that reduces rent under an existing lease is not automatically ‘unfair’—‘if the creditor/landlord does not like the variation [under the CVA] he can bring the obligation to an end’. A CVA varies existing obligations, it does not create new ones.
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