Highland & Universal Properties Ltd v Safeway Properties Ltd [2000] ScotCS 28 (1 February 2000)

Highland & Universal Properties Ltd v Safeway Properties Ltd [2000] ScotCS 28 (1 February 2000)

It is competent for the Scottish courts to grant specific implement to enforce a keep-open clause in a commercial lease, provided the obligation is sufficiently precise and does not impose an undue restraint on personal liberty. The discretion to refuse specific implement is reserved for exceptional cases where enforcement would be unjust or cause disproportionate hardship. In this case, the defenders failed to show any cogent reason for refusal, and the equities overwhelmingly favour the pursuers.

Citation
[2000] ScotCS 28
Parties
Pursuers and Respondents: Highland and Universal Properties Limited; Defenders and Reclaimers: Safeway Properties Limited
Jurisdiction
Scotland
Judgment Date
01 February 2000
Procedural Posture
Reclaiming Motion / Appeal From Lord Ordinary's Interlocutor After Proof
Outcome
Appeal dismissed; interlocutor of Lord Ordinary affirmed.
Legal Topics
Specific Implement, Lease Obligations, Keep Open Clauses, Discretion of Court, Competency of Orders
Contract Law Property Law Remedies Specific Implement Lease Obligations Keep Open Clauses Discretion of Court Competency of Orders

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Parties

Highland and Universal Properties Limited

Pursuers and Respondents

Safeway Properties Limited

Defenders and Reclaimers

Procedural Posture

Reclaiming Motion / Appeal From Lord Ordinary's Interlocutor After Proof

Legal Issues

  1. 1 Is it competent for the Scottish courts to grant specific implement to enforce a keep-open clause in a commercial lease?
  2. 2 Should the court exercise its discretion to refuse specific implement in this case?

Ratio Decidendi

It is competent for the Scottish courts to grant specific implement to enforce a keep-open clause in a commercial lease, provided the obligation is sufficiently precise and does not impose an undue restraint on personal liberty. The discretion to refuse specific implement is reserved for exceptional cases where enforcement would be unjust or cause disproportionate hardship. In this case, the defenders failed to show any cogent reason for refusal, and the equities overwhelmingly favour the pursuers.

Court Disposition

Appeal dismissed; interlocutor of Lord Ordinary affirmed.

Orders

  • Defenders are ordained to keep Store Number 1, Westside Plaza, Edinburgh open for retail trade in goods sold in a high class retail store throughout normal hours of business until the earliest of 24 March 2009, irritancy or other lawful termination of the lease, or lawful assignation, provided the store is not...