London Trocadero Ltd v Family Leisure Holdings Ltd (Respondent/Claimant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,MRS JUSTICE BARON,LADY JUSTICE ARDEN |
| Judgment Date | 26 July 2012 |
| Neutral Citation | [2012] EWCA Civ 1037 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2011/3031 |
| Date | 26 July 2012 |
[2012] EWCA Civ 1037
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE (CHANCERY DIVISION)
MANCHESTER DISTRICT REGISTRY
HHJ HODGE QC
1MA30422
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Davis
and
Mrs Justice Baron
Case No: A3/2011/3031
NICHOLAS TROMPETER (instructed by Mishcon de Reya) for the Appellant.
IAN FOSTER (instructed by Turner Parkinson LLP) for the Respondent.
Hearing date: 10 th July 2012
Introduction
This is an appeal, brought by leave of Mummery LJ, against an interlocutory order of His Honour Judge Hodge QC, sitting as a judge of the Chancery Division, of 10 November 2011. By that order, the judge declared and ordered that the claimant ("FLH") had the right to remove a quantity of amusement and gaming machines from premises at the Trocadero, Piccadilly Circus, London W1 on certain terms. He further ordered the defendant ("LTL") to pay FLH's costs of its application for relief save that there was to be no order as to the costs of a previous hearing on 23 September 2011. He allocated the case to the multitrack and gave certain directions for the future progress of the proceedings. He also granted a stay on terms, pending a possible application for permission to appeal.
The essential subject matter of the proceedings is in broad terms indicated by the nature of the interlocutory order made. As between two commercial enterprises, given the nature of the dispute, one would have thought some kind of agreed solution would have been reached, without the need for any court intervention. That did not happen. At all events, after the order was made and an appeal was set in motion, it seems that LTL, in consideration of certain covenants, granted a licence to FLH to remove the goods in question. Thus the only extant matter, in substance, was now costs. This was not drawn to the court's attention until receipt of FLH's skeleton argument for this hearing. It should have been notified much earlier. Further, since the only outstanding issue was now one of costs, again one would have thought a sensible solution might be agreed. Again, that did not happen. It is not obvious that any real regard has been had to the statement in the White Book (Vol 2 9A-77) that generally it is inappropriate for parties seeking to resolve a dispute between them as to costs to seek to do so by litigating to a conclusion a substantive issue that has become "academic".
Nevertheless, given where we are now, in order to resolve the outstanding issue as to costs it is necessary to look at the substantive legal claims being advanced.
Background
The premises in question were levels 1 and 2 of certain units at the Trocadero. These premises were the subject of a Lease between the predecessors of LTL and a company called West End Amusement Parks Limited ("WEAP"). The Lease was dated 30 September 2002. It is, with Schedules, 69 pages long and is clearly carefully drawn. It is necessary, in order to explain the issues arising in the litigation, to refer to a number of its terms.
WEAP is styled "the Tenant"; and "Tenant" is defined to mean the person named as the Tenant in the Lease "and includes the successors in title of the Tenant and those deriving title under the Tenant". Definitions of the words "Common Parts" and "Loading Area" are, among others, included.
By clause 3.2 of Section 2 of the Lease it is provided:
"There are granted the rights and easements set out in Schedule 1."
Clause 3.5 operates so as to negate the existence of any implied easement.
Schedule 1, in the relevant respects, provides as follows:
"1. Subject as provided in Schedule 3 and subject to compliance with the provisions contained in Schedule 3 a right of way (during the opening hours on a Centre Opening Day and in common with the Landlord and all others authorised by the Landlord from time to time or otherwise having the like right) for the Tenant and all others authorised by the Tenant to pass to and from the premises on foot only over and along the Common Parts provided always that:
1.1 the Landlord shall be at liberty at any time and from time to time during the Term:
1.1.1 to make such alterations to the Common Parts as the Landlord shall think fit and to close the Common Parts or parts of them for such period as is necessary to make such alterations;
1.1.2 to close the Common Parts or parts of them for a sufficient period in each year to prevent the acquisition by the public or others of any rights or easements in respect of them;
1.1.3 to erect, place and maintain in the Common Parts at its absolute discretion in all respects such signs, lighting, heating, ventilating, security or other equipment, kiosks, plants, reception desks and landscaping, children's recreational equipment, tables, chairs, benches and other seating and such other items as the Landlord may from time to time determine; and
1.1.4 to hold or authorise or promote in the Public Areas such activities as the Landlord shall consider desirable to promote the Centre or any trade or business in it.
1.2 The Landlord shall be at liberty to restrict:
1.2.1 the use of the Common Parts by the public outside the Maximum Trading Hours for a Centre Opening Day in such manner as the Landlord shall think fit; and
1.2.2 the use of the Common Parts in such manner as the Landlord shall think fit for the purpose of carrying out works to them or in connection with the provision of services but not so as to preclude access to the Premises.
2. Subject to compliance with the provisions of paragraph 1 of Schedule 3 the right (in common as above) to load and unload vehicles in the Loading Area at such times as provided for in Schedule 3."
Turning then to Schedule 3, that in the relevant respects provides as follows:
"1. Delivery and collection of goods
1.1 For the purpose of this paragraph "Goods" shall mean all goods, materials, articles or things whether for sale, display or use in the Premises which are to be delivered to or removed from them except:
1.1.1 refuse and rubbish; and
1.1.2 articles sold to customers which are removed by such customers upon purchase.
1.2 No goods are to be delivered or removed from the Premises except in accordance with the following procedure, that is to say:
1.2.1 The Tenant shall ensure that Goods to be delivered to the Premises are delivered to the Loading Area only during the Loading Hours on a Centre Opening Day.
1.2.2 Upon a delivery to the Loading Area of Goods for collection by the Tenant or the Tenant's authorised representative shall forthwith upon demand attend the Loading Area and take delivery of them.
1.2.3 The Tenant shall arrange for the vehicle making the delivery to be unloaded with all due speed and shall ensure that the Goods so unloaded are removed from the Loading Area and transported to the Premises by means of such lifts, hoists and service corridors as shall be designated from time to time by the Landlord for use by the Tenant.
1.2.4 Goods to be removed from the Premises shall not be delivered to the Loading Area for collection except during the Loading Hours on a Centre Opening Day and then not until the Tenant has been advised that there is a vehicle then available to collect the same.
1.2.5 A Tenant wishing to transfer Goods to the Premises shall transport such Goods by such service corridors and lifts as the Landlord shall from time to time designate for use by the Tenant.
1.2.6 If the Tenant wishes to deliver or to remove from the Premises any Goods of a size or weight that cannot be transported by means of the service lifts in the Centre the Tenant shall give at least twenty-four hours prior written notice to the Landlord or the Landlord's managing agents of the proposed delivery or removal of such Goods and shall comply with such stipulations as the Landlord or the Landlord's managing agents shall make for the transportation of the same within the Centre.
1.3 The Tenant shall not in any circumstances (except with the prior written consent of the Landlord):
1.3.1 unless otherwise agreed in writing by the Landlord or the Landlord's managing agents transport Goods within the Centre at any time using any of the Public Areas;
1.3.2 transport Goods within the Centre by any conveyance or vehicle except a conveyance or vehicle of such size and type as shall be previously approved by the Landlord."
Clause 52 of the Lease provides that a person not a party to the Lease has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of the Lease but so as not to affect any right or remedy which exists or is available apart from that Act.
It was unsurprising that the Lease should contain detailed provisions with regard to deliveries and removals. As is well known, the Trocadero is very well-attended. It has many tenants and licensees running different kinds of businesses, primarily related to entertainment and leisure. The premises extend to over 600,000 square feet. It is centred in the heart of London and has an estimated "footfall" of over 9 million per year. Mr Trompeter, for LTL, understandably emphasised the need for and importance of restrictions as to delivery and removal, to ensure good estate management and to avoid unreasonable disruption to other businesses in the building.
WEAP was a company involved in amusement and family entertainment. It is a subsidiary of FLH. WEAP itself has a subsidiary called West End Amusements Limited ("WEA") which in practice seems to have traded from the...
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