ReSolution Issue 21, June 2019 | Page 9

provisions. The question before the court therefore came down to whether, on a proper interpretation of the lease, the parties had (expressly or impliedly) agreed that such legal matters were the exclusive jurisdiction of the expert.
The court concluded that the lease did not confer exclusive jurisdiction upon the expert on legal matters. Lord Doherty observed that a lease would have to "make it very clear indeed" if it were conferring exclusive jurisdiction as to the correct legal interpretation of such important lease clauses.
Cine-UK Limited v. Union Square Developments Limited (Cine-UK)
A similar dispute arose a couple of months later, in the Cine-UK case, which involved a lease of a multiplex cinema in Aberdeen. As in Ashtead, the lease provided for the level of rent to be reviewed every five years, on an open market basis, and for any disagreement over the open market rent to be referred to an independent expert to determine. However in marked contrast to Ashtead, the lease in dispute in Cine-UK said that the decision of the expert would be "final and binding" on the parties to the lease "both on fact and law".
At the 2014 rent review, the landlord and tenant were unable to agree on the open market rent figure and in due course an expert surveyor was appointed, issuing her determination of the revised rent in 2017. The tenant subsequently raised a court action disputing the level of the revised rent, alleging that the expert had made an error in law. The alleged error in law related to the expert's interpretation of one of the disregards in the rent review clause (being a disregard of landlords' concessions which might normally be given to compensate tenants for fitting out periods). The tenant argued that the expert had erroneously applied the disregard too widely, by also disregarding other types of concessions typically granted by landlords in the market.
Whilst the landlord disputed that there had been any error of law, its main argument was that the court had no jurisdiction to hear the action because the lease expressly conferred exclusive jurisdiction on the expert, including on matters of law.