Church Commissioners for England v Abbey National Plc
| Jurisdiction | Scotland |
| Judgment Date | 15 July 1994 |
| Date | 15 July 1994 |
| Docket Number | No. 62. |
| Court | Court of Session (Inner House - Full Bench) |
FULL BENCH.
Lord President (Hope), Lord Allanbridge, Lord McCluskey, Lord Morison, Lord Clyde.
ContractBreach of contractPracticeInterdictCompetencyPositive obligationLandlord and tenantLeaseTenants breaching terms of lease obliging them to occupy and operate subjects letWhether obligation enforceable by interdictWhether interim interdict competentCourt of Session Act 1988 (cap. 36), secs. 46 and 47(2)1
Words and phrases"Positive obligation""Negative obligation"
The pursuers were landlords of certain units in a shopping centre, one of which they let to the defenders. In the lease was an obligation to occupy and operate the subjects let. The tenants breached that obligation and ceased to keep the subjects open for business. The pursuers then brought proceedings against the defenders in which they sought specific implement of that obligation together with interdict and interdict ad interim against the defenders from failing to comply therewith. The Lord Ordinary (Penrose) refused the motion for interdict ad interim as being incompetent, holding that the pursuers were seeking by means of that interim order to enforce a positive obligation under the lease which was incompetent in light ofGrosvenor Developments (Scotland) plc v. Argyll Stores Ltd.UNK 1987 S.L.T. 738, by which the Lord Ordinary felt bound. The pursuers reclaimed, arguing that that case was wrongly decided. The pursuers argued that the breach of contract of which they complained was a continuing breach, repeated every day when the defenders failed to open for business, and that in those circumstances the pursuers were entitled to both specific implement and an interim order pending pronouncement of decree of specific implement. The effect of the interim order was to stop the continuing breach of contract. The defenders, however, contended that there was no continuing breach but that the breach had occurred when the defenders had decided to cease carrying on business and had put that decision into effect. After that time, there was nothing left to be interdicted.
Held (aff. judgment of Lord Penrose) (1) that it was not competent to enforce directly a positive obligation by means of an interdict, the criterion being one of substance and not form, so that the interdict could not be determined merely by the use of language which prohibited or forbade something; (2) that the
interdict sought in this case would leave the defenders with no alternative in order to comply with it but to fulfil their obligations under the lease and the defenders would require to reverse the steps which they had already taken in order to meet the terms of the interdict, so that it would be an order ad factum praestandumin the form of an interdict; and (3) that, as the essence of interdict was a preventive remedy, prohibiting a threatened or continuing action and looking to the future, not the past, a grant of interdict in cases where the action complained of had already been accomplished, and also in cases where what was anticipated consisted not of any activity but of inactivity, was excluded, so that interdict was incompetent in the present case; and reclaiming motion refused.
Grosvenor Developments (Scotland) plc v. Argyll Stores Ltd.UNK 1987 S.L.T. 738 approved.
Observed that although it was not the purpose of an interdict to compel the restoration of the parties to a position in which they were previously, that might indirectly be its effect.
Observed that the pursuers were not without remedy pending decree of specific implement, for secs. 46 and 47 of the Court of Session Act 1988 empowered the court to grant orders ad interimin order that they could be restored to the position they were in prior to the wrongful act.
Observations on the terms "positive" and "negative" as applied to obligations in the context of the law of interdict.
The Church Commissioners for England and Sears Property Glasgow Limited brought an action against Abbey National plc in which they sought, inter alia, declarator that the defenders were in breach of contract together with an order ordaining them to implement their obligations under a contract of lease and interdict from failing or continuing to fail to comply with those obligations.
The cause called before the Lord Ordinary (Penrose) in the motion roll at which the pursuers sought an order for interdict ad interim.
At advising, on 27th October 1993, the Lord Ordinary refused the motion as being incompetent on the basis of the Extra Division decision ofGrosvenor Developments (Scotland) plc v. Argyll Stores Ltd.UNK 1987 S.L.T. 738.
The pursuers reclaimed.
The cause called before the Inner House for a hearing at which their Lordships remitted the cause to be heard by a court of five judges in order to consider the propriety of the decision in Grosvenor Developments (Scotland) plc v. Argyll Stores Ltd.
The cause called before a court of five judges, comprising the Lord President (Hope), Lord Allanbridge, Lord McCluskey, Lord Morison and Lord Clyde, for a hearing.
At advising, on 15th July 1994
LORD PRESIDENT (Hope)This is a reclaiming motion against an interlocutor of the Lord Ordinary by which he declined to pronounce interim interdict against the defenders from failing or continuing in their failure to comply with their obligations under a lease or otherwise breaching or continuing to breach their obligations under it. There was no dispute between the parties that the defenders were in breach of their obligations in terms of the lease. But the Lord Ordinary observed that, as the act constituting the breach had already in substance been carried out, the effect of the interdict would be to require the defenders to reverse the steps which they had already taken in breach of their contract. He held himself bound by Grosvenor Developments (Scotland) plc v. Argyll Stores Ltd.UNK 1987 S.L.T. 738 to refuse interim interdict on the ground that the order which was sought was incompetent.
The pursuers have now reclaimed against the Lord Ordinary's interlocutor on three grounds. The first is that the Lord Ordinary misdirected himself in holding that the ratio of the decision in theGrosvenor Developments case was such as to prevent him from pronouncing interim interdict in the terms concluded for. The second is that the Lord Ordinary misdirected himself in omitting to take account of the provisions of sec. 46 of the Court of Session Act 1988 in declining to pronounce interim interdict. The third is that, assuming that the ratio of the decision in the Grosvenor Developments case was as held by the Lord Ordinary, that case was wrongly decided to the extent that it was held therein that interim interdict is not a competent remedy to prevent a breach of contract whether threatened or continuing. Counsel for the pursuers made it clear, however, in the course of his argument that he no longer wished to contend that the Lord Ordinary was wrong to hold himself bound byGrosvenor Developments in the circumstances of this case. He directed his principal argument to the question whether that case was wrongly decided. The ground of appeal which is directed to this issue is loosely worded, in my opinion, as there is no doubt that a breach of contract which consists of doing something which the party has undertaken not to do can be restrained by interim interdict. The question, as counsel for the pursuers put it at the outset of his argument, is whether it is competent for the Court of Session to pronounce an order for interdict or interim interdict which would require positive action by the defender to comply with it.
The pursuers are the proprietors of the St Enoch Centre in Glasgow, which is a self-contained, purpose-built retail shopping centre. The centre comprises approximately 74 units, most of which are now let. In order to attract customers to the centre the pursuers regard it as essential that whenever the centre is open for business all units let in the centre are kept open for business, and the units are let on terms which require this to be done. It is the terms of the lease between the pursuers and the defenders directed to this requirement which are in issue in this case. The pursuers aver that it came to their attention on or about 13th October 1993 that the defenders had ceased to keep the subjects let to them open for business. They had erected a notice in the window to the effect that the business carried on there would be henceforth conducted at their branch in Argyle Street, Glasgow. The pursuers maintain that by their actings the defenders are in breach of their obligations under the lease, and they seek declarator in terms of the first conclusion that the defenders are bound to implement these obligations. They are (i) to occupy the subjects, (ii) to keep them open between the hours of 9.00 a.m. and 6.00 p.m. from Mondays to Saturdays excluding Christmas Day and New Year's Day, and (iii) to use them as an office for the provision by them of corporate and personal financial services and such other purposes of a building society until 24th June 2014 or until the subjects are assigned, sub-let or surrendered in terms of the lease or the lease is otherwise terminated. The pursuers also seek specific implement of these obligations in terms of the second conclusion which is as follows:
"To ordain the defenders to comply with their obligations in terms of the said lease and, in particular, (i) to occupy the said subjects; (ii) to keep the subjects open during the aforementioned hours; and (iii) to use the said subjects as aforementioned all until 24th June 2014 or (a) until the said subjects are assigned, sub-let or otherwise surrendered by the defenders in conformity with the terms of the lease or the said lease is terminated by the defenders in accordance with
the terms of cl. 5.4.3 thereof or (b) until the lease is irritated or terminated by the pursuers in conformity...
To continue reading
Request your trial
-
Highland & Universal Properties Ltd v Safeway Properties Ltd (No.2)
...terms (pp 298F, 304C, 317H–I, 318H–I, 319C); and reclaiming motionallowed in part. Church Commissioners for England v Abbey National PLCSC 1994 SC 651 considered. Highland and Universal Properties Limited brought an action in the Court of Session against Safeway Properties Limited concludin......
-
Mark Yaxley And Another V. Sharon Roe Morrison Or Glen And Others
...interdict must be no wider than necessary to curb the illegal actings complained of. [Church Commissioners for England v Sears Property 1994 S.C. 651 at 666; Murdoch v Murdoch 1973 S.L.T. (Notes) 13; Baillie v Baillie 1987 S.C.L.R.1 and Inverurie Magistrates v Sorrie 1956 S.C. 175.] He subm......
-
Scottish Power Generation Limited V. British Energy Generation (uk) Limited And Sse Energy Supply Limited
...47(2) directed to "keep open" obligations in commercial leases, beginning with Church Commissioners for England v. Abbey National plc, 1994 S.C. 651, the court has recognised that it is competent to grant an interim order to reinstate a person in his possessory right or to grant specific re......
-
Retail Parks Investments Ltd v The Royal Bank of Scotland Plc (No 2)
...Cases referred to:0 Braddon Towers Ltd v International Stores Ltd [1987] EGLR 209. Church Commissioners for England v Abbey National plc1994 SLT 959. Church Commissioners for England v Nationwide Anglia Building Society1994 SLT 897 Cooperative Insurance Society Ltd v Argyll Stores (Holdings......