The PCA has been ordered by an information appeals tribunal to release letters and meeting notes with regulated pub companies that led to what has been described as a “significant error” in a now withdrawn pubs code statutory advice note on rent dispute clauses and Calderbank letters.
The withdrawn advice – initially published in July 2017 – backed pubcos to lawfully impose additional arbitration upon tenants seeking to exercise their right to market rent only option.
Fiona Dickie, the current PCA, had supported an original decision by former PCA Paul Newby to refuse a Freedom of Information request made in May 2019 on the grounds that it would impede future free and frank discussions between the office and regulated pubcos.
The request was made by Gary Murphy, the operator of Ye Olde Mitre in High Barnet, north London, who believed the PCA and regulated pub companies had mis-interpreted the pubs code during a failed attempt at market-rent-only (MRO) option started in 2016 and lodged a subsequent appeal.
“The pubs code adjudicator did not deal with the appellant’s request for information in accordance with the requirements of the Freedom of Information Act 2000 (FOIA),” the ruling stated.
“We uphold the appeal,” it continued. “The PCA was not entitled to withhold information within the scope of the refined request”.
The PCA is to disclose all information by 12 July 2021.
‘Considering next steps’
The withdrawal of the pubs code statutory advice came after Murphy embarked on a crowdfunding campaign to mount a High Court challenge to pubcos and the PCA over the beer tie.
As reported by The Morning Advertiser, Murphy launched a campaign to raise legal fees after he believed the PCA misinterpreted the pubs code in issuing his arbitration award.
According to Murphy, the process means pubcos benefit from elongating the arbitration process as long as they can, given cheaper MRO rents are only introduced from the date an agreement is signed. He argued that a correct interpretation of Regulation 28 on rent recovery would leave rent backdating open to negotiation.
After spending more than £20,000 of his own money on legal fees, Murphy gave pubcos notice that if they didn’t respond by the 28 June 2019 he was taking the issue to the High Court.
The PCA withdrew its original advice notice on 7 June 2019.
While Dickie backed former PCA Newby’s decision to refuse of a Freedom of Information request when asked to review the matter, the tribunal ruled the public interest favoured the release of the information.
"The tribunal agreed that the PCA, Ms Dickie held a reasonable opinion that exemptions applied to the requested information,” a PCA spokesperson said.
“The tribunal came to a different view on where the public interest balance lies to that reached by the PCA office and the Information Commissioner.
“The PCA’s view on the code relating to this area is as set out in the existing advice note.
“The PCA is considering next steps in the light of the judgement.”
‘Wake-up call’
The tribunal also noted the PCA had made the decision not to consult tenants on the original statutory advice note and that this step, plus the significant financial value of the MRO option, supported the subsequent release of the consultation papers.
“The appellant also makes the point that the PCA only consulted with the POBs (pub owning businesses) on the issue of triggering rent dispute clauses, not the tied tenants – even though both groups are stakeholders who are affected by the pubs code,” the ruling stated.
“We do not find there was any obligation on the PCA to consult with TPTs (tied pub tenants) as well as POBs.
“However, as the consultation was only with one group, this makes it particularly important for the public to be able to see and understand how the PCA was carrying out its role.
“If the PCA chose to consult with one party and not the other when drafting its advice note, there is an enhanced interest in transparency because the PCA should be acting impartially."
Gary Murphy, licensee of Ye Olde Mitre in High Barnet described the ruling as a “wake-up call” to Government and MPs.
“I am due to apply for MRO again later this year and I am consulting with my lawyers on how we can force the PCA into clarifying their errors,” he said. “It should not be like this.
“We need a PCA that is truly independent and balanced. We will also carefully scrutinise the information we will obtain as a result of this tribunal decision.”