Reopening unresolved issues

In Lidl GmbH v Just Fitness Ltd [ 2010] EWHC 39 (Ch) the losing party in arbitration proceedings contended that a key issue which had been raised had not been resolved, and accordingly that he was entitled to commence a fresh arbitration on that point. Frances Kirkham J disagreed, and held that in such circumstances there was an estoppel against the applicant.

The first arbitration

In November 2001 Just Fitness Ltd (‘JF’) became the underlessee of premises belonging to Lidl GmbH (‘ Lidl’), for a period of 25 years. By a letter dated 15 July 2008 JF sought Lidl’s consent to assign the underlease, but this was refused in September 2008. By a letter dated 28 November 2008 JF again wrote to Lidl, pointing out that the underlease specifically provided that Lidl could not unreasonably withhold its consent to an assignment, and that the same duty was imposed by the Landord and Tenant Act 1988. The letter stated that there was a dispute between the parties and Lidl was invited to agree to the appointment of an arbitrator. On 28 January 2009, in the absence of agreement between the parties, the President of RICS appointed an arbitrator.