GYLE SHOPPING CENTRE GENERAL PARTNERS LTD v MARKS AND SPENCER PLC [2014] ScotCS CSOH_122 (06 August 2014)

GYLE SHOPPING CENTRE GENERAL PARTNERS LTD v MARKS AND SPENCER PLC [2014] ScotCS CSOH_122 (06 August 2014)

Statutory personal bar under the 1995 Act does not apply to variation of real rights in land; common law rei interventus is replaced by statute and does not survive for such transactions; no voluntary, informed, unequivocal waiver by defender established; Management Committee representatives lacked authority to bind defender regarding real rights; pursuer's reliance was based on its own misunderstanding, not inducement by defender; defender is not barred from insisting on formal variation or from objecting to Primark development.

Citation
[2014] ScotCS CSOH_122
Parties
Pursuer: Gyle Shopping Centre General Partners Ltd as trustee for and general partner of Gyle Shopping Centre Limited Partnership; Defender: Marks & Spencer plc
Jurisdiction
Scotland
Judgment Date
06 August 2014
Procedural Posture
Civil Commercial Property Dispute / Judgment After Proof Before Answer
Outcome
claim dismissed
Legal Topics
Variation of Lease, Personal Bar, Rei Interventus, Waiver, Requirements of Writing (scotland) Act 1995
Property Law Contract Law Commercial Leasing Variation of Lease Personal Bar Rei Interventus Waiver Requirements of Writing (scotland) Act 1995

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Parties

Gyle Shopping Centre General Partners Ltd as trustee for and general partner of Gyle Shopping Centre Limited Partnership

Pursuer

Marks & Spencer plc

Defender

Procedural Posture

Civil Commercial Property Dispute / Judgment After Proof Before Answer

Legal Issues

  1. 1 Whether defender is personally barred from objecting to construction and leasing of new building to Primark based on oral agreements and conduct
  2. 2 Applicability of statutory personal bar under Requirements of Writing (Scotland) Act 1995 to variation of real rights in land
  3. 3 Survival of common law rei interventus post-1995 Act

Ratio Decidendi

Statutory personal bar under the 1995 Act does not apply to variation of real rights in land; common law rei interventus is replaced by statute and does not survive for such transactions; no voluntary, informed, unequivocal waiver by defender established; Management Committee representatives lacked authority to bind defender regarding real rights; pursuer's reliance was based on its own misunderstanding, not inducement by defender; defender is not barred from insisting on formal variation or from objecting to Primark development.

Court Disposition

claim dismissed

Orders

  • Pursuer not entitled to declarator barring defender from objecting to Primark development.
  • Case put out by order for parties to address terms of interlocutor and further procedure.