Ralph Lauren London Limited V. The Mayor And Burgesses Of The London Borough Of Southwark As Trustee Of The London Borough Of Southward Pension Fund
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2011] CSOH 103 |
| Court | Court of Session |
| Published date | 17 June 2011 |
| Year | 2011 |
| Docket Number | CA62/11 |
| Date | 17 June 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 103 | |
| CA62/11 | OPINION OF LORD GLENNIE in the cause RALPH LAUREN LONDON LIMITED Pursuers; against THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF SOUTHWARK AS TRUSTEE OF THE LONDON BOROUGH OF SOUTHWARK PENSION FUND Defenders: ________________ |
Pursuers: Dunlop, Q.C.; Brodies LLP
Defenders: Lake, Q.C.; Maclay Murray & Spens
17 June 2011
[1] On 3 June 2001 I refused the pursuers' motion for interdict. I gave brief reasons for my decision. I have been asked to set out my reasons in writing and I do so below.
[2] The pursuers are the tenants of subjects at 194 Ingram Street, Glasgow ("the subjects") in terms of a lease dated 12 December 2002 and 13 January 2003. The defenders succeeded to the interest of the landlords in the subjects in March 2010 and may, for present purposes, be regarded as the landlords. On 26 March 2010 the defenders issued a Back Letter ("the Back Letter") addressed to the pursuers in terms of which they undertook, in paragraph 3, inter alia as follows:
"We shall not grant first lettings of that one of the Commercial Units (as defined in the Lease) known as Unit 6, situated to the north of that one of the Commercial Units let as at the date hereof to All Saints Retail Ltd, to retailers other than high quality fashion retailers as are approved by you (such approval not to be unreasonably withheld or delayed)."
It is agreed between the parties, for present purposes at least, that that Back Letter and, in particular, the obligation contained in paragraph 3 thereof is valid and enforceable according to its terms.
[3] In their summons, the pursuers make the following averments in Article 2 of Condescendence:
"The pursuers are a company specialising in the retail of high-end, luxury designer apparel. In terms of the lease, they are tenants of the subjects and occupy same as a shop selling high-end, luxury designer apparel. The pursuers have occupied the subjects and traded successfully from them in that manner for several years. The pursuers' covenant is prized by landlords such as the original landlords and the defenders, as providing a high quality retail centre point which draws footfall and encourages business in the neighbourhood, and thus increases the value of other units let by such landlords. It was at the time of the pursuers entering into the lease, and remains, important to the pursuers that premises in the immediate locale of the subjects are occupied by businesses which are congruent with that operated by the pursuers. The subjects are located in the heart of the Merchant City area of Glasgow, an important element of which is high end retail such as that offered by the pursuers. At present, the adjacent premises are predominantly occupied by such businesses, including Gant Clothing, Mulberry, Agent Provocateur, Jaeger and Crombie - all of whom are recognised high quality fashion retailers. The pursuers have an ongoing interest in seeing that premises in the immediate locale are only occupied by high quality fashion retailers. The value to them of the lease which they have with the defenders is enhanced by the fact that neighbouring premises are occupied by similar businesses to theirs, thereby creating a high-end fashion retail 'area' within the Merchant City itself. Since the inception of the lease the pursuers have enjoyed undertakings from the landlords thereof from time to time, requiring that Unit G6 of the Commercial Units as defined in the lease, which Unit is adjacent to the subjects, will only be let to high quality fashion retailers approved in advance by the pursuers. Such an undertaking was a precondition of the pursuers' agreement to let the premises in the first instance. The Undertakings granted to the pursuers since the outset of the lease have referred to 'Unit 6, situated to the north of that one of the Commercial Units let as at the date hereof to All Saints Retail Ltd'. That Unit is in fact, in terms of the lease, Unit 'G6' and could reasonably have been understood by all parties as being such. Unit G6 lies to the north of premises which were, until recently, let by All Saints Retail Ltd. Unit G6 has not as yet been let by the defenders or their predecessors to any party."
In Article 4 of Condescendence, the pursuers aver that the lease will endure until August 2017.
[4] The pursuers complain that the defenders propose to let Unit G6 to a hairdressing business known as John Quinn Salons Limited ("JQS"). They say that in terms of the Back Letter the defenders required their approval to such a letting. The defenders initially sought their approval but now propose to let the unit to JQS notwithstanding that they have not obtained it. The pursuers go on to aver that JQS was only incorporated in October 2010 and has no track record. Mr John Quinn, who appears to be behind JQS, has operated a hairdressing salon in the south side of Glasgow for some time, but that salon has not at any time been associated with or operated adjacent to high quality fashion retail outlets such as that operated by the pursuers. They are not, they say, high quality fashion retailers. In those circumstances the pursuers' refusal of approval is reasonable.
[5] In support of the motion, Mr Dunlop QC submitted that he had to satisfy the court on two matters: (a) that the pursuers had a prima facie case; and (b) that the balance of convenience favoured interdict. I accept that as a general proposition, subject to the caveat that that expression now falls to be understood in light of the decision of the Inner House in Gillespie v Toondale Ltd 2006 SC 304. Though that case was concerned with inhibition on the dependence, I agree with Lord Brodie that what was said there about prima facie case is applicable to applications for interim interdict: Cowan v Royal Bank of Scotland plc [2011] CSOH 85 at para.[11]. Further, it has long been recognised that in assessing the balance of convenience, a Scottish Court will have regard to the relative strength of the cases put forward by each party at the interlocutory stage as one of the many factors going to make up the balance of convenience: see per Lord Fraser of Tullybelton in NWL Limited v Woods [1979] 1 WLR 1294 at p.1310, a passage...
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