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PCA Awards Create An Unpleasant Smell

Updated: Jul 12, 2022

2020/NO.16 - The 5th May was just like any other lockdown day, if there is such a thing. Then out of the blue two arbitration awards popped up as being published by the Pubs Code Adjudicator (PCA) for all to see. Information is everything in a data/factual based society. Barristers, Lawyers, and definitely Morgan & Clarke keep extensive law libraries that are constantly updated. They are essential tools of reference. The latest case law and legal opinions are the lifeblood of being on top of decision making which is why 5th May was such a severe wake-up call. There were two arbitration awards on that day which by coincidence directly linked to Morgan and Clarke. The first was title/identity being SPS Pubs Ltd as claimant and EI group being respondent. The pub in question was the Eagle Ale House, Battersea in which Morgan & Clarke Director Simon Clarke had and still has a strong involvement in its operation. The second award was a case represented by our close colleague Chris Wright’s at the Pubs Advisory Service, identity and Claimant details were redacted in this instance. The SPS case was first referred to the PCA on 14/09/2016 and the award was sent to the parties on 06/09/2018. The redacted case was first referred on 06/03/2017 with the award being sent to the parties on 23/07/2018. The publication date was as earlier stated on 05/05/2020. Both cases in full can be viewed on the PCA website. Helpful if you can find the time to read both closely crafted awards. The SPS case is particularly pivotal, see below.  Award 1 - SPS Pubs Ltd v Ei Group Award 2 - Redacted Claimant v Ei Group Simon Clarke represented himself at a rare full oral hearing. Against him was a barrister and witnesses from the solicitors acting for the EI Group and also so-called independent expert evidence. (More later). The core issues were that of a Deed of Variation against a new lease and whether what was on offer was “reasonable”. Paragraph 19 stated… ”The question of whether the MRO vehicle should be a new lease or a DOV is one that has taxed the industry since the introduction of the Pubs Code. The Claimants representatives (including Mr Simon Clarke) have all been involved for many years in campaigns on behalf of pub tenants and specifically in relation to the development of the Act and the Code. The argument that the proper vehicle for MRO is a DOV is therefore contextualised by their expectations of what the Code would offer”.  So this is headline stuff with a key member of the “campaigners” at the heart of the case. Cut to the chase and the judgment was that the proposed MRO tenancy was not MRO compliant and has failed the test under regulation 29(3)(b). Simon won and has now confirmed... “We were asked on or about 2nd November 2018 to agree to the publication of the award. We agreed with no redactions on 6th November 2018. Ei sought many changes, altering the award being one plus redactions. I don’t know when that was finally concluded.”  One of the major areas of concern in the award was the EI Group chosen “independent expert” who found to be was anything but independent. Paragraphs 156 all the way through to paragraph 193 deal in detail culminating in...  “It seems to me that for all the reasons above that the resulting conclusions in Mr (redacted) evidence were not helpful to me,and that the extent of the evidence could tend to the advantage of the Respondent’s case”.   That is legal speak for the fact that the evidence was definitely NOT independent. The individual is still out there as primarily a Pub Co man. We meet him often and the leopard has not changed his spots. The SPS case dealt with a wide range of contentious topics, all highly relevant and helpful (back in 2018) to other ongoing cases. The observations made by the DPCA, now PCA, Fiona Dickie, could be described as game-changing when taken in the context of the autumn of 2018. But they never saw the light of day until May 2020. A full EIGHTEEN MONTHS after the parties had the award. The second award with the claimant guided by Chris Wright took TWENTY-TWO MONTHS to surface for all to see. The unexplained late publication has meant that both the awards are now far less influential and of no consequence or direct assistance to tenants fighting, often at great expense, to defend their corner. Time has rendered the awards toothless and now of only academic interest. Correcting the hopeless drafting of the Pubs Code seen by many as a flawed piece of legislation that does not mirror the will of Parliament is in reality wiped out by the massively late publication of these two pivotal awards. Accident or design who knows? You cannot change the date evidence. The PCA office by such an inexplicable late publication has opened Pandora’s box to conspiracy theorists by the bucket load. Many have contacted us in total derision. We have our own thoughts but do please read both cases in full before forming your own judgement as to why the huge delay. One of our corresponding tenants commented, "There seems to be a very unpleasant and lingering smell wafting around”. We are inclined to see a degree of sense in that opinion.


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