Church Commissioners for England v Abbey National [1994] ScotCS CSIH_2 (15 July 1994)

Church Commissioners for England v Abbey National [1994] ScotCS CSIH_2 (15 July 1994)

It is not competent to enforce directly a positive obligation by means of an interdict, even if the order is framed in negative terms. The appropriate remedy for enforcing positive contractual obligations is specific implement, not interdict. The interdict sought in this case would leave the defenders with no alternative but to fulfil their obligations under the lease, and is therefore incompetent.

Citation
[1994] ScotCS CSIH_2
Parties
Pursuer: Church Commissioners for England; Defender: Abbey National plc
Jurisdiction
Scotland
Judgment Date
15 July 1994
Procedural Posture
Reclaiming Motion (appeal) Against Interlocutor Refusing Interim Interdict / Appellate
Outcome
Reclaiming motion refused; interlocutor of the Lord Ordinary adhered to.
Legal Topics
Interim Interdict, Specific Implement, Enforcement of Positive Obligations, Remedies for Breach of Lease, Competency of Interdict
Contract Law Civil Procedure Interim Interdict Specific Implement Enforcement of Positive Obligations Remedies for Breach of Lease Competency of Interdict

Case Brief

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Parties

Church Commissioners for England

Pursuer

Abbey National plc

Defender

Procedural Posture

Reclaiming Motion (appeal) Against Interlocutor Refusing Interim Interdict / Appellate

Legal Issues

  1. 1 Is it competent to grant interim interdict to enforce positive contractual obligations?
  2. 2 Does the form or substance of the order determine the competency of interdict?
  3. 3 Are there alternative interim remedies available for enforcing positive obligations under a lease?

Ratio Decidendi

It is not competent to enforce directly a positive obligation by means of an interdict, even if the order is framed in negative terms. The appropriate remedy for enforcing positive contractual obligations is specific implement, not interdict. The interdict sought in this case would leave the defenders with no alternative but to fulfil their obligations under the lease, and is therefore incompetent.

Court Disposition

Reclaiming motion refused; interlocutor of the Lord Ordinary adhered to.