Rock Advertising Limited (Respondent) v MWB Business Exchange Centres Limited (Appellant)

[2018] UKSC 24

UKSC 2016/0152
Rock Advertising Limited (Respondent) v MWB Business Exchange Centres Limited (Appellant)
On appeal from the Court of Appeal Civil Division (England and Wales)

The Respondent occupied as licensee premises managed by the Appellant under a written licence agreement. The agreement contained a clause stipulating that all variations to the licence must be made in writing. The Respondent fell behind on its payments, and representatives of the parties discussed rescheduling the Respondent’s debt over the telephone on 27 February 2012. That same day the Respondent paid the Appellant the first instalment due under this proposed schedule. On 29 February the Appellant’s representative informed the Respondent that this was less than the licence fee due. No further payments had been made when on 30 March 2012 the Appellant purported to exercise its right under the licence agreement and locked the Respondent out of the Premises and shortly afterwards gave notice to terminate the agreement. The Appellant issued proceedings to recover the arrears. The Respondent argued that the licence had been orally varied on 27 February 2012 so that it had not been in breach of the varied agreement as of 30 March 2012. The judge held that an oral agreement had been entered into on 27 February 2012, supported by consideration in the practical benefit that the Respondent would honour some and hopefully all of its obligations, but that this was not enforceable due to the anti-oral variation clause contained in the licence.
The issues are:
Whether an agreement in writing which contains an anti-oral variation clause can be varied other than in accordance with the terms of that clause.
Whether the Court of Appeal was wrong to follow a previous Court of Appeal decision in which a relevant contrary authority had not been cited, or a later Court of Appeal decision which considered both earlier decisions and rejected that contrary authority but did so obiter.
Whether on the findings of fact by the trial judge, there was a practical benefit which could amount to consideration at law, given the principle that a promise to pay an existing liability cannot amount to good consideration per Re Selectmove [1995] 1 WLR 474.
The Supreme Court unanimously allows the appeal. Lord Sumption gives the lead judgment, with which Lady Hale, Lord Wilson and Lord Lloyd-Jones agree. Lord Briggs gives a concurring judgment

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