OPINION OF THE COURT DELIVERED BY LADY DORRIAN IN THE CAUSE DEM-MASTER DEMOLITION Ltd AGAINST ALBA PLASTICS Ltd [2014] ScotCS CSIH_58 (11 July 2014)

OPINION OF THE COURT DELIVERED BY LADY DORRIAN IN THE CAUSE DEM-MASTER DEMOLITION Ltd AGAINST ALBA PLASTICS Ltd [2014] ScotCS CSIH_58 (11 July 2014)

The respondents had no contractual or established right to use or access the loading bays or associated roller doors under the lease. The only right of access established was via the service road and fork lift truck route, which sufficed for business purposes. The Lord Ordinary’s order exceeded the respondents’ rights and innovated upon the contract. Access must be provided via the fork lift truck route, and any security measures by the landlord must not impede this access.

Citation
[2014] ScotCS CSIH_58
Parties
Pursuer and Reclaimer: DEM-MASTER DEMOLITION LIMITED; Defender and Respondent: ALBA PLASTICS LIMITED
Jurisdiction
Scotland
Judgment Date
11 July 2014
Procedural Posture
Civil Appeal (reclaiming Motion) / Appeal Against Interim Order Under Sections 46 and 47(2) of the Court of Session Act 1988
Outcome
Appeal allowed in part; order to be revised to restrict access to the fork lift truck route only.
Legal Topics
Commercial Leases, Rights of Access, Interim Orders, Balance of Convenience, Landlord's Hypothec
Property Law Landlord and Tenant Law Civil Procedure Commercial Leases Rights of Access Interim Orders Balance of Convenience Landlord's Hypothec

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Parties

DEM-MASTER DEMOLITION LIMITED

Pursuer and Reclaimer

ALBA PLASTICS LIMITED

Defender and Respondent

Procedural Posture

Civil Appeal (reclaiming Motion) / Appeal Against Interim Order Under Sections 46 and 47(2) of the Court of Session Act 1988

Legal Issues

  1. 1 Whether the respondents (tenants) had a right of access to and use of loading bays and associated roller doors under the lease; Whether the interim order granted by the Lord Ordinary innovated upon the parties’ contractual rights; Whether the balance of convenience favoured the respondents in granting access for removal of plant and equipment.

Ratio Decidendi

The respondents had no contractual or established right to use or access the loading bays or associated roller doors under the lease. The only right of access established was via the service road and fork lift truck route, which sufficed for business purposes. The Lord Ordinary’s order exceeded the respondents’ rights and innovated upon the contract. Access must be provided via the fork lift truck route, and any security measures by the landlord must not impede this access.

Court Disposition

Appeal allowed in part; order to be revised to restrict access to the fork lift truck route only.

Orders

  • Case put out by order for discussion of the exact terms of the revised order to allow access via the fork lift truck route.