Dem-master Demolition Limited Against Alba Plastics Limited
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lady Clark,Lord McGhie |
| Neutral Citation | [2014] CSIH 58 |
| Court | Court of Session |
| Docket Number | A31/14 |
| Published date | 11 July 2014 |
| Date | 11 July 2014 |
| Year | 2014 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
| |
|
| [2014] CSIH 58 |
| Lady Dorrian Lady Clark of Calton Lord McGhie
| A31/14
OPINION OF THE COURT
delivered by LADY DORRIAN
in the cause
DEM-MASTER DEMOLITION LIMITED Pursuers and Reclaimers;
against
ALBA PLASTICS LIMITED Defenders and Respondents:
_______________
|
Act: Logan; Campbell Smth WS
Alt: Weatherston, solicitor advocate; TC Young LLP
10 July 2014
Background
[1] This action relates to the lease to the respondents of industrial premises constituting part of one unit within a very much larger industrial complex, namely part 1.1 of Unit 1 of Centrelink 5, Shotts. The premises constitute a very small part of the overall estate, most of which is currently unoccupied. The reclaimers purchased the subjects in 2012 and thus became successors to the original landlords under the lease. In terms of the lease the description of the premises included:
"...all necessary rights of pedestrian and vehicular access (as may be designated from time to time by the Landlords acting reasonably) thereto and egress therefrom over and across all access routes (as may be designated from time to time by the Landlords acting reasonably) within the larger building of which the Premises form part and the Estate."
The pertinents are defined as follows, in clause 1.10:
“(i) the right in common with the Landlords and all the other persons authorised by the Landlords to the roadways shown for the purposes of identification only, coloured pink on the Plan 2 annexed hereto as are available for access; (ii) the right in common with all other persons entitled thereto and so far as the Landlords have power to grant the same to use all service media serving the premises”
As to the provision of electricity, the lease provided:
“(b) ELECTRICITY AND WATER
a fair and equitable proportion (as reasonably determined by the landlords acting reasonably) of all expenditure properly and reasonably incurred by the Landlords in providing electricity (excluding lighting) and water supplies to the Premises together with any Value Added Tax properly payable on these costs…
(f) SERVICE CHARGE
a fair and equitable proportion (as reasonably determined by the landlords acting reasonably but capped at a sum equivalent to £1.00 per square foot per annum) of the costs properly and reasonably incurred by the Landlords incidental to providing all or any of the Services to the Premises together with any Value Added Tax payable on these costs, expenses and outgoings and including any costs incurred by the Landlords in appointing a Surveyor or managing agent.”
The reclaimers raised an action seeking payment of (a) certain sums relating to the provision of electricity which they averred were due and resting owing; and (b) outstanding rent. They averred that the total monthly costs for provision of electricity to the complex was about £20,000 per month, of which the respondents’ use accounted for about two thirds, based on calculations of an independent consultant. It is averred that invoices reflecting these figures were sent to the respondents, who failed either to pay or make proposals to settle the debt. Accordingly, on 9 December 2013 the reclaimers cut off the supply of electricity to the premises, from which date the overall bill for consumption of electricity has fallen to £7,000 per month, consistent with the calculations of the consultant. From that date, the respondents have also failed to pay rent, which is the second sum sued for.
[2] The respondents disputed that the sums claimed in respect of electricity were due, averring that sums paid by them to the reclaimers in respect of their monthly consumption of electricity had not been passed on to the electricity supplier, and that they had not been provided with satisfactory documentary evidence to show that the sums were indeed due. They averred that by terminating the electricity supply the reclaimers have damaged their business and sought to make continued occupation of the subjects untenable. They have required to use costly and unsatisfactory generating equipment to continue their operations.
[3] Apart from this primary dispute between the parties, a further dispute arose relating to access to the premises. The respondents averred that since 24 February 2014 the reclaimers had restricted all vehicular access to the subjects by securing the gates to the estate road at the rear of the unit, and by locking certain roller doors which permit heavy goods, plant and equipment to be manoeuvred to and from the subjects. Only pedestrian access was being allowed, which they averred disrupted their business to the extent that they could not continue trading from the premises. In particular they averred that the reclaimers had prevented them from using certain loading bays and the vehicular access thereto, which they claimed to have been accustomed to use. The reclaimers maintained that there remained available to the respondents both pedestrian access and vehicular access, precise details of which were averred. They further averred that the right of access was not an unqualified one, but was to be that designated by the landlords, acting reasonably. Although it seemed that the respondents had used an alternative vehicular access by means of an estate road to the North, and by use of the roller doors at the loading bays at the rear of the main unit they had no right to do so, neither of those routes having ever been the subject of nomination or authorisation by the landlord. During December 2013 and January 2014 the complex, most of which is unoccupied, was targeted by thieves who removed valuable copper wiring, a task which would have required heavy tools and vehicular access via the estate road, causing damage to the complex and resulting in a loss in the region of several hundred thousand pounds. In consultation with the police it was decided that access to the service road should be restricted, and parts of the building fenced off. Gates, secured by padlock, were installed on the service road. A security guard was employed at night. Even if this route had ever been a nominated access route, it was reasonable in the circumstances for the landlords to restrict access in this way, alternative means of access being available.
[4] It should be noted that on all the issues in this case, some of which have not been noted above, there is a stark dispute of fact between the parties.
[5] In March of this year the respondents sought interim interdict against the reclaimers to prevent them from obstructing access to the premises in a way so as to defeat or impede the respondents’ rights under the lease. The reclaimers having given an undertaking to the court, the respondents were allowed to drop their motion for interim interdict at the bar. The terms of the undertaking were as follows:
“Logan for the pursuers, without prejudice to their whole rights, pleas and laws undertakes that on three hours’ notice between the hours of 6pm and 6am access to and egress from the subjects of let will be given along the road coloured green and the roller door marked ‘Alba back door (alternative)' through the passageway shown in photograph 3, both of which are attached to the affidavit by Stuart Robertson number 13 of process.
In respect that the defenders have undertaken to pay the cost of providing a security guard on site (the said payment to be made fourteen days in advance) between the hours of 6am and 6pm access will be given on the same terms and conditions between these hours.
For the avoidance of doubt the said access is for the purpose of deliveries to or collections from the subjects of let and vehicles are not to be parked in said areas other than for that purpose.”
Subsequently, the respondents, maintaining that the reclaimers had failed to obtemper that undertaking, returned to court seeking decree in terms of sections 46 and 47(2) of the Court of Session Act 1988 (the 1988 Act) by ordaining the reclaimers to unlock all padlocks, or other impediments prohibiting access through
“the roller door to the rear of the subjects let; the roller door, passageway and road referred to in the undertaking….; and the remaining clear loading bay, roller doors and passageway for its use at the rear of Unit 1”
all for a minimum period of between 0800 and 1600 each weekday for a period of the earlier of (a) 14 working days from service of any interlocutor or (b) the date by which the respondents have removed their plant and equipment, granting warrant to break open lockfast places for that purpose.
[6] They argued that as a result of the reclaimers’ failure to grant access they were unable to carry on their business, that they had found other premises and wished to vacate the unit in question, but were unable to move their heavy plant and machinery therefrom without access to the loading bay doors referred to. The reclaimers argued that under the lease the respondents had no right of access to inter alia the loading bay or the doors thereof, and that the order sought should not be granted. The respondents’ published accounts suggested that they were insolvent, and it was frankly acknowledged by counsel that a concern of the reclaimers was the removal of the plant and machinery would preclude the operation of the landlord’s hypothec.
[7] The motion was granted, but the interlocutor was suspended pending this reclaiming motion.
[8] Sections 46 and 47 of the Act provide as follows:
“46. Specific relief may be granted in interdict proceedings.
Where a respondent in any application or proceedings in the Court, whether before or after the institution of such proceedings or application, has done any act which the Court might have prohibited by interdict, the Court may ordain the respondent to perform any act which may be necessary for reinstating the petitioner in his possessory right, or for granting specific relief against...
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