Knowledge Counsel London
"Paragraph 8 … is concerned only with who will pay the cost of making unsafe cladding safe"
Building Safety Act – Landlord and tenant
The Upper Tribunal has clarified the scope of the provision in the Building Safety Act 2022 (“BSA”) which provided that no service charge was payable under certain leases for cladding remediation (paragraph 8, Schedule 8). The façade of the building in question needed substantial repair work and the dispute included whether the defects related to fire safety issues and whether the costs fell within the relevant BSA clause. The tribunal concluded that the protection applied to buildings that had unsafe cladding and that the cladding did not need to necessarily be suffering from a “relevant defect” as defined under the BSA. “Unsafe” should not be construed simply to mean where the cladding posed a fire risk. The present cladding was seriously degraded and posed a serious risk, such that it was unsafe. The appeal was dismissed and the leaseholders did not have to pay a service charge for the work.
Specific performance
Mr Perelman, as seller and Mr Kerr, as buyer entered into a share purchase agreement. The transaction did not complete because of a disagreement about the method of transfer (electronically or by paper share transfer form and share certificates). The Commercial Court adjudicated on this and a number of other issues. The court concluded that the agreement was legally binding and envisaged that transfer could be through paper certificates and share transfer form. There was no implied term that settlement was to be effected electronically either as a matter of necessity or custom and usage. The contract did contain an implied term that the parties would cooperate given the reciprocal nature of the obligations. The court ordered specific performance of the contract.
Perelman v Kerr [2025] EWHC 2331 (Comm), 12 September 2025
Jurisdiction
The defendant, Gottex, unsuccessfully applied to set aside service of a claim form against it on the basis that the English court did not have jurisdiction. The dispute arose out of a sale and purchase agreement (“SPA”) to which Mr Campeau, the claimant, was a third party. The defendant had commenced proceedings against the claimant in Luxembourg alleging fraud in the sale of the company which resulted in it being sold at an undervalue. Mr Campeau’s English court claim sought to ensure those proceedings were discontinued. The court held that the jurisdiction clause in the SPA was sufficiently wide to encompass claims by and against third parties. The Contracts (Rights of Third Parties) Act 1999 obliges Mr Campeau to enforce any rights under the SPA in accordance with the contract with the result that he is bound by the exclusive jurisdiction agreement. He was therefore entitled to serve the claim form out of the jurisdiction without permission.
Campeau v Gottex Real Asset Fund 1 (OE) Waste Sarl [2025] EWHC 2322 (Comm), 12 September 2025
Contract interpretation
The Commercial Court has provided an interesting decision illustrating its approach to interpretation of an SPA and dealing with significant documentary and witness evidence to establish whether the sellers were in breach of warranties given in the SPA. The court gave significant weight to the wording of the contract given its nature, formality and the quality of drafting. It concluded that the defendants were in breach of the warranty, after considering the factual situation in respect of each warranty, coupled with the seller’s awareness of the accuracy of such facts. Damages were awarded in favour of the claimant.
Atten Bidco Ltd v Assassa and others [2025] EWHC 2347 (Comm), 16 September 2025
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