Friday, November 28, 2008

Dear Harriet

Thank you so much to you and Jack for coming to my party at The Sun and Doves. It was lovely to see you both so unexpectedly!

I've been filling in Charlotte with updates on my rent review - for the record really - and now I'm asking for your help because the situation has developed to such a surreal point that it is impossible to rationalise:

The arbitrator in my rent review established rent at 65K - a level which put me in the immediate position of owing back rent of around 22K and liable for paying S&NPE's costs, certainly in the region of 50+K. The outcome would have bankrupted me. Fortunately the arbitrator made two statements in his final award which were contentious and open to challenge. I applied to the Appeal Court to challenge these points; my application was accepted and heard on 20 May 2008. The high court judge upheld one of the points and referred the rent back to the arbitrator, instructing him to either justify the award he had made or else apply a calculation to the award which would reduce the amount from his figure of 65k, taking into account the fact that if I were not tied to buy beer through S&NPE I wcould receive significant discounts on my annual purchase against what I am obliged to pay through the terms of my lease. The arbitrator had not considered this extra 'wet rent' I pay when initially calculating the award and so had penalised me by not taking this into account and reducing the 'dry rent' he assessed accordingly.

The situation now is this:

The arbitrator has yet to return his final award under instruction of the high court. He is, as far as I can make out, in contempt of court; effectively having ignored the high court's instruction. The arbitration act 1996 states that an arbitrator must respond to the instructions of the high court within three months of the date of hearing. It is now almost six and a half months since 19 May and the arbitrator remains static. His latest reason for having not responded is that he has had other professional duties to attend to and has also been called to jury service at the high court.

Frankly this is simply not good enough yet there appears, from my investigations as a lay person, to be no course I can take to bring him to account for his actions or, more accurately, his complete and totally unacceptable unprofessional inaction over this case.

You will understand my consternation; my business and my entire future lies in the balance of what this arbitrator will decide. This rent review has been going on for more than three years and not a day has gone by without the threat of possible bankruptcy looming dependent on the outcome of the review. This is a form of mental torture. I am one person fighting a huge corporation with effectively limitless resources and have stood up to their aggressive application for a completely unsustainable and unjustifiable increase in rent simply because it would be business suicide not to do so. They do not care one jot if I go out of business as a result of their actions; they believe they are infallible; if I go down someone else will soon come along, put a lot more money into the premises, pay the reduced rent it was marketed at and subsequently become victim to the cyclic processes of pubco 'partnership' reality.

The arbitrator's inaction seems to me to be the result of his realising that he is in a very sticky place: He has made an award, as he and other arbitrator's routinely do in these situations with tied pubs, which inflates rent dramatically but which on casual scrutiny does not seem to be an 'unfair' increase - only because the intitial pubco 'uplift' application was so extreme an amount. This situation goes to the bottom of the ossified inequity there is in the pubco model; pubco makes extreme demands for rent. Tenant either takes it or leaves it, knowing that if they don't take it they will be faced with massive legal bills they can't possibly meet unless they win; and faced with the almost certainty that they will not win and have to pay the other side's costs and get an even higher award than the amount the pubco offered before threatening arbitration.

The help I'm asking you for is to advise me on how to tackle the arbitrator's seemingly impenetrable position of total immunity from any the consequence of his lack of professionalism. Two lawyers have told me that the arbitrator is undoubtedly in contempt of court but couched this with the advice that it would be unwise to bring this to the court's attention 'because you don't want to get his back up before he makes his award'. What kind of legal system is this? This is not justice. It is scandal!

I cannot believe there is no higher authority I can turn to for objective, unprejudiced support in this dreadfully inequitous situation.

I look forward to your suggestions!

Best wishes


J Mark Dodds

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