STOP PRESS: From 6 April 2017, the Insolvency Rules 1986, SI 1986/1925 were revoked and replaced by the Insolvency (England and Wales) Rules 2016 (IR 2016), SI 2016/1024. The content in this Q&A may have been affected by this change. Case Study A tenant and its guarantor have gone into administration. The shop in the premises has ceased trading and is now empty. The landlord has incurred wasted costs for a new tenant the administrator found but which has fallen through. Can the landlord reclaim rent and wasted costs from the administrator? The issue of rent Following the case of Re Game Station, also known as Pillar Denton v Jervis, the administrator will only be liable for payment of rent (as an expense of the administration) for the period following their appointment where the administrator has used

Tenancy at will or periodic tenancy From the reference to ‘holding over’, this response assumes that the commercial tenant was in occupation under a lease which is contracted out of the Landlord and Tenant Act 1954 (LTA 1954). On that assumption, it is an open question whether the circumstances (including any payment of rent) show that the parties had agreed to enter into a new periodic tenancy or some other (lesser) arrangement (ie a tenancy at will) in respect of the original demise together with the additional space. Ordinarily, if one party allows another into exclusive possession of their land on payment of rent, then, in the absence of any other relevant circumstance, the inference sensibly and reasonably

The answer to this Q&A depends on whether the occupier is a tenant or a licensee. If the occupier is a tenant, there are unlikely to be any implied terms of access for the landlord to conduct a ground report. It is possible

Practice Note: Forfeiture of a lease outlines the circumstances in which a landlord can forfeit a lease. Once a right to forfeit for a breach of covenant has arisen, a landlord must ensure that the right is not waived. Waiver is doing or committing any act expressly or impliedly that recognises the continuing existence of the lease, such as demanding or accepting rent. Therefore, accepting rent arrears instalments

The application for committal must be served personally on the respondent (CPR 81.10(4)). However, CPR 81 and Practice Direction 81 do not mandate a particular form in which that service must be evidenced. One must therefore fall back on the general rules. Use of an affidavit The circumstances in which a party’s evidence must be given by affidavit are set out in CPR 32.15(1): ‘…if this is required by the court,

Statutory requirements for tenancies and whether they apply to common law tenancies Whether a statutory requirement applies to a common law tenancy or only a particular type of tenancy depends on the statutory provision concerned. Tenancy deposit legislation Section 212 of the Housing Act 2004 (HA 2004) makes provision for the Secretary of State (or, in Wales, the National Assembly for Wales) to make arrangements for tenancy deposit schemes to be available for the purpose of safeguarding tenancy deposits. HA 2004, s 213 requires any tenancy deposit to be dealt with in accordance with an authorised tenancy deposit scheme. It requires a landlord who receives a deposit to comply with the initial requirements of an authorised scheme within 30 days and it requires the landlord to serve prescribed

It has been assumed that this tenancy has no statutory protection (such as an assured, secure, introductory, or assured shorthold tenancy), that the occupiers did not enter the property as trespassers, and that the possession order is not being sought for forfeiture of a lease. In that event, pursuant to section 89 of the Housing

Where an investor has acquired shares and claimed Enterprise Investment Scheme (EIS) relief in respect of them, the investor is concerned to ensure that income tax relief is not withdrawn. The circumstances are explained in Practice Note: EIS—circumstances in which relief is withdrawn or reduced. One of them is that the investor has disposed of the shares within three years of the issue date of the shares (or the commencement of trade, if later). However, the EIS regime provides that

The company name The name of a company is not an immutable part of its identity. A company can change its name as provided for by section 77 of the Companies Act 2006 (CA 2006). CA 2006, ss 78 and 79 deal with the most usual ways this can be done, and require the registrar of companies to be notified of the change so that the register can be updated. Change of name after issue of proceedings In such a case, there was no error. Moreover, CA 2006, s 81(2) specifically provides that a change of a company’s name ‘does not render defective any legal proceedings by or against it’. For the sake of good order, it will probably desirable at a convenient point to amend the statements of case accordingly under CPR 17 so that they are up to date. See Practice Note: Amending

Winding up by the court The section 129 of the Insolvency Act 1986 (IA 1986), states the following: ‘(1) If, before the presentation of a petition for the winding up of a company by the court, a resolution has been passed by the company for voluntary winding up, the winding up of the company is deemed to have commenced at the time of the passing of the resolution; and unless the court, on proof of fraud or mistake, directs otherwise, all proceedings taken in the voluntary winding up are deemed to have been validly taken. [(1A) Where the court makes a

Authority to bring a private prosecution Section 6(1) of the Prosecution of Offences Act 1985 (POA 1985) The right to institute proceedings and conduct a private prosecution is provided by POA 1985, s 6(1). A private prosecution can be commenced by a private individual, company or organisation who is not acting on behalf of the police, CPS or any other public prosecuting authority. Please note that there are certain offences which require the consent of the Attorney General or Director of Public Prosecutions (DPP) to prosecute. POA 1985, s 6(2) Pursuant to POA 1985, s 6(2), the DPP may take over a private prosecution at any time for the purpose of continuing the prosecution or discontinuing it. Who can commence a private prosecution? Section 1 of the Magistrates’ Courts

This Q&A focuses on the position under the Data Protection Act 1998 (DPA 1998) and does not comment on the position under the forthcoming General Data Protection Regulation, Regulation (EU) 2016/679, (the GDPR) which will be directly applicable from 25 May 2018. Background Under DPA 1998 any data controller that handles personal data must comply with the following eight principles: • Principle 1: personal data must be processed fairly and lawfully • Principle 2: personal data must be obtained only for specified and lawful purposes • Principle 3: personal data must be adequate, relevant and not excessive • Principle 4: personal data must be accurate and kept up to date • Principle 5: personal data must not be kept for longer than necessary • Principle 6: personal data must be processed in accordance with the rights of data subjects • Principle 7: there must be measures against unauthorised or unlawful processing of personal data • Principle