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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sears Properties Netherlands BV v Coal Pension Properties Ltd [2000] ScotCS 103 (11 April 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/103.html Cite as: [2000] ScotCS 103, 2000 SCLR 1002

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The pursuers and the defenders are respectively the lessee and the lessor of a shop in a shopping centre in Edinburgh.

The lease to which the pursuers and defenders are now party (No. 6/1 of process) - "the Lease" - was granted by the defenders (who were then known as CIN Properties Limited) in 1991 in favour of a company known as Richard Shops Limited. The terms of the Lease were subsequently varied in respects immaterial to the issues with which this action is concerned and by an assignation dated 16 and 21 October 1996 and registered in the Books of Council and Session on 17 January 1997 the tenant's interest in the Lease was assigned by Richard Shops Limited to the present pursuers. The Lease expires in 2095.

In the course of 1998 the pursuers wished to confer a sub-tenancy on Sears Clothing Limited. In order to do that they were required by the terms of Cl. 3(12)(b) of the Lease to obtain the consent of the Landlords, the defenders. In due course by letter dated 23 December 1998 solicitors acting for the defenders agreed to consent to the creation of a sub-lease in favour of Sears Clothing Limited subject to certain conditions, one of which was that the sub-lease be in terms of a draft sub-lease annexed to the letter. By a letter of 6 January 1999 the pursuers' solicitors confirmed the acceptability of those conditions. A sub-lease in the terms proposed was subsequently executed in January 1999 and forms No. 6/2 of process - "the Sub-lease". The sub-tenant's date of entry was backdated to 7 November 1998. The ish occurs on 6 November 2013.

Although the sub-tenant under the Sub-lease is Sears Clothing Limited it is averred by the pursuers that the occupier of the shop at the date of entry was Adams Childrenswear Limited - "Adams" - a subsidiary of a holding company of Sears Clothing Limited and a subsidiary of a holding company of the pursuers. The terms of the Lease enabled occupation to be taken by such a subsidiary. In July 1999 however Adams ceased to be a subsidiary or to be within the Sears group of companies. With that change in the shareholding of Adams having occurred, the solicitors acting for the pursuers wrote on 28 July 1999 to those acting for the defenders. Having narrated in the letter that the sub-tenant - Sears Clothing Limited - was willing to assign the Sub-lease to Adams they stated that the present pursuers were prepared to consent to such an assignation subject to obtaining the consent of the defenders "as required in terms of the Lease". The defenders' solicitors responded by a letter of 10 September 1999 in which, having referred to the Lease and the deeds amending and assigning it they wrote:

The pursuers aver that they have rejected that notice of irritancy and that the defenders continue unreasonably to withhold their consent to the assignation of the Sub-lease to Adams, of whose occupation of the shop they have all along been aware. That refusal has caused the pursuers to bring the present action.

As initially raised the summons concluded solely for declarator that the defenders had unreasonably withheld consent to the assignation by Sears Clothing Limited of the Sub-lease and "... accordingly that the said Sears Clothing Limited are entitled in terms of Clause 3(12)(b) of the said Lease to assign the said Sub-lease of the said subjects to the said Adams Childrenswear Limited on the terms thereof and as further set out in the said letter of request [being the letter of 28 July 1999]."

At the diet of debate however the pursuers by minute of amendment added a further conclusion seeking declarator that the defenders are not entitled to refuse consent to assignation by Sears Clothing Limited of the Sub-lease "in reliance on the terms of Clause 6.5(b) thereof".

The provisions of the Lease which were the main object of discussion at the debate were those contained in Clause 3(12) whereby the tenant agreed and undertook as follows:

Although the debate ranged more widely over the terms of the Sub-lease, the provision particularly founded on by the defenders - and reflected in the additional declaratory conclusion for the pursuers - is Clause 6.5(b) which is in these terms:

The terms "the Landlord" and "the Mid-Landlord" are defined in the Sub-lease as being the defenders and the pursuers respectively, together with their respective successors to the Landlord's and tenant's interests in the Lease.

The particular significance or importance for the defenders of this provision is encapsulated in these averments in their defences- "explained and averred that there are no provisions in the Lease which entitle the pursuers to ask for the defenders' consent to an assignation of the tenant's interest under the Sub-lease. The defenders are entitled to withhold their consent to an assignation by Sears Clothing Limited to Adams of the tenant's interest under the Sub-lease and that under and in terms of Clause 6.5(d) of the Sub-lease. That provision creates a jus quaesitum tertio in favour of the defenders". [The reference to para. (d) of the clause is an evident typographical error and should read (b)].

The defenders plead that the action is irrelevant. The defenders also include among their pleas one to the effect that the pursuers have no title to sue. The pursuers for their part include among their pleas one directed to the relevancy of the defences.

In opening the debate counsel for the defender - Mr Clancy - adverted to the terms of the first conclusion and as a first chapter of his argument submitted that there was no relevant basis for the proposition inherent in that conclusion since the Lease did not provide any contractual mechanism whereby the Landlord's consent to an assignation of a sub-lease might be sought or granted. Clause 3(12)(b) of the Lease dealt with the granting of consent only as respects two events, namely an assignation of the Lease itself or the creation of a sub-tenancy. The scope of that provision did not extend to the granting or withholding of consent to an assignation by a sub-tenant of the sub-tenant's interest under a previously created sub-lease. Consequently the request advanced in the letter of 28 July 1999 for consent in terms of the Lease to the assignation of the Sub-lease was misconceived. The absence of any provision in the Lease for the event of an assignation of a sub-lease was the reason wherefor the consent to the creation of the sub-tenancy to Sears Clothing Limited had included the stipulation that the sub-tenancy be in the form of the draft sub-lease, which included Clause 6(5)(b).

Turning next to the action in so far as it related to the second declaratory conclusion, counsel's first submission was that as respects that declarator the pursuers lacked a proper title to sue. While it might be that the pursuers had an interest in the matter, interest did not always equiparate with title to sue. Counsel referred to D. Nicol v Dundee Harbour Trustees 1915 SC (HL) 7, particularly the speech of Lord Dunedin at 12-13. The proposed assignation of the Sub-lease was a proposed transaction between Sears Clothing Limited and Adams. The refusal of the defenders to consent to that proposed assignation thus did not involve any infringement of any legal right vested in the pursuers. The pursuers had no right under the Lease to obtain consent in the absence of reasonable grounds for refusal and the pursuers accordingly lack title to seek this particular declarator.

Counsel for the defenders next embarked on perhaps the principal chapter of his argument, namely that Clause 6(5)(b) of the Sub-lease conferred an absolute right on the defenders, as a third party, to veto the proposed assignation of the Sub-lease. The provision was jus quaesitum tertio. Counsel referred to the definition and discussion of the principles of jus quaesitum tertio in Gloag on Contract, 234. The matter in issue in the present case was whether the contract was intended to confer a benefit on the tertius. By "contract" was to be understood the particular provision on which reliance was placed, that is, Clause 6(5)(b). In providing that the sub-tenant might not assign or sub-let "without previously obtaining the written consent of the Landlord" the Sub-lease displayed a clear intention to benefit the Landlord, that is to say the defenders. The benefit was the entitlement to control who might occupy the shop. That intention was further evident from the overall scheme of contractual arrangements. The Lease itself gave power to the defenders to control the identity of the principal tenant and the creation of any sub-tenancy. That was carried forward in the grant of consent which contained as a condition that the Sub-lease was to be in the terms of the annexed draft. Clause 6(5)(b) of the Sub-lease gave no benefit to the pursuers, or Sears Clothing Limited, in so far as it referred to the unqualified necessity of obtaining the consent of the Landlord.

Counsel further referred to Hislop v McRitchie's Trustees (1881) 8 R (HL) 95 and in particular to the speech of the Lord Chancellor at 97-98 in which, in the context of feuing conditions, his Lordship had referred to the concept of mutuality and community of rights and obligations. That was something, said counsel, which might be borrowed and applied in the present case since one had a scheme or structure of contractual rights involving the Lease and the Sub-lease. In Clause 6.1 of the Sub-lease the sub-tenant had bound himself to perform and observe the non-monetary obligations of the tenant under the Lease. In his speech in Hislop, Lord Watson had referred (101) to the right or jus quaesitum to enforce conditions occurring in contracts between the superior and co-feuars as having been originally admitted upon considerations of expediency, and with a view to avoiding circuitous and unnecessary litigation. The same might be said in the present case and the possibility of other remedies against the pursuers or Sears Clothing Limited did not exclude the existence of a jus quaesitum tertio.

Counsel also cited Nicholson v Glasgow Asylum for the Blind 1911 S.C. 391, particularly Lord Dunedin at 399-400, the proposition being, as I understood it, that since the Lord President referred to examining all the relevant titles in order to establish an intention that there be a community of inter-dependent rights it was appropriate in the present case also to have regard to the missive intimating consent to the creation of the sub-tenancy. The pursuers would not have received consent to the creation of this sub-tenancy - said counsel - but for the provision of Clause 6(5)(b) of the Sub-lease which was to cover for the fact that the Lease did not deal expressly with the issue of the assignation of a Sub-lease. Together with the Lease arrangements, the correspondence relating to the granting of consent to the creation of the sub-tenancy produced something analogous to the community of rights and obligations in the cases in which a jus quaesitum tertio had been admitted in feuing condition cases. The provisions of Clause 6(5)(b) of the Sub-lease therefore operated to confer an enforceable right on the defenders to object to any assignation of the Sub-lease.

In relation to what was said in Rankine on Leases (3^rd Ed.) at page 197 ff, on which counsel for the pursuer was to rely, it was stated at 199 that a Landlord might seek interdict against a sub-tenant who was threatening to breach the provisions of the lease. So, said counsel, interdict would be available to the defenders to enforce the provisions of Clause 6(5)(b) of the Sub-lease. Further, the wording of Clause 6(5)(b) of the Sub-lease envisaged a letter of undertaking in a form approved by the Landlord. This indicated the Landlord's interest in the enforcement of the provisions of the Sub-lease. At all events the language of Clause 6(5)(b) was plain in its stipulation for the Landlord's unqualified consent.

Accordingly, counsel for the defenders moved for the dismissal of the action.

Mr Scott, for the pursuers, opened with the observation that the defenders seemed to assume that once any sub-let were created Clause 3(12)(b) of the Lease was wholly spent. That was wrong. The clause did not address in express terms the event that a previously created sub-tenancy were to be assigned but by clear implication a consent granted for a sub-tenancy was for occupation by that sub-tenant. Were there to be a change in the identity of the occupier it was implied in Clause 3(12)(b) of the Lease that the consent of the Landlord would be needed. That was the basis of the request made by the solicitors for the pursuers in their letter of 28 July 1999. The whole tenor and intent of Clause 3(12)(b) of the Lease was that the Landlord might have a qualified right of control over the identity of the occupier. There was little difficulty in seeing that such a qualified right of control would extend to the assignation of a sub-tenancy previously created with the consent of the Landlord.

On that view, turning to the question of title to sue raised as respects the second conclusion, counsel for the pursuers pointed out that the pursuers, as tenants under the Lease, claimed a right under Clause 3(12)(b) of the Lease to obtain consent to the transfer of occupation of the shop to Adams unless reasonable grounds existed for its withholding. That was part of their response to the assertion of an irritancy. Further, as the "Mid-Landlord" the pursuers were parties to the very Sub-lease whose assignation is in question and must plainly have a title to challenge the assertion that its terms gave to the defenders a right of veto. The objection on account of title to sue was thus misconceived and the defenders' plea of no title to sue should be repelled.

On the principal issue whether the Sub-lease contained a jus quaesitum on the defenders to refuse consent by virtue of Clause 6(5)(b) the pursuers' submission was that the terms of the Sub-lease were res inter alios acta and the Landlord under the Lease had no right directly to enforce the terms of the Sub-lease. The Mid-Landlord, that is the pursuers, were the party with the title and interest to enforce the obligations of the Sub-tenant. The fact that the defenders were one party in the contractual chain of Lease and Sub-lease did not mean that they enjoyed a jus quaesitum tertio respecting the provisions of the Sub-lease. It was noticeable that the defenders had not cited any case of a jus quaesitum tertio in the context of a head landlord and a sub-tenant. It was plain from Rankine on Leases (3^rd Ed.) at 197 that a head landlord did not have any title to enforce the provisions of a sub-lease. That matter had been firmly laid down by the House of Lords in Duke of Queensberry's Executors v Maxwell (1831) 5 Wilson & Shaw 771. The present case contained nothing which took it outwith the scope of that well established principle.

It was of course not sufficient that a tertius might have an interest in forcing a contractual provision between two other parties. The test was whether the intention of those contracting parties had been to confer on the third party a title to sue on that provision. That proposition was evident from Nicholson v The Glasgow Asylum for the Blind 1911 S.C. 391, 400 and Allan's Trustee v The Lord Advocate 1971 SC (HL) 45, at 54, 56. Counsel further referred to Walker v Gavin (1787) Mor 14193 for support for the proposition that the true test was not whether a benefit was conferred upon the tertius but whether it was the intention of the parties to the contract that the third party should have a title to sue for its performance.

Were it correct that Clause 6(5)(b) gave to the defenders the absolute right of veto which they claim, it would follow that the defenders ought also to have the right to irritate the Sub-lease were it to be assigned without their consent. But that could not be so. The irritancy clause in the Sub-lease (Clause 10) made no reference whatever to any right of the Landlord to irritate the Sub-lease. The only rights of irritancy were those given to the Mid-Landlord. It would, in any event, be extraordinary to have a sub-lease capable of being irritated by either or both of the ultimate landlord and the mid-landlord. A wider consideration of the terms of the Sub-lease confirmed that only the pursuers as Mid-Landlord had title to enforce its provisions. Counsel then referred more closely to the terms of Clauses 10, 7, 8.2, 6.6 and 6.4 from all of which it was plain that the remedies were conceived solely in favour of the Mid-Landlord.

Adverting more directly to the terms of Clause 6(5)(b) of the Sub-lease Mr Scott observed in limine that the procurement of a written undertaking in favour of the Landlord by the assignee of the sub-tenant of the assignee's willingness to perform the obligations of the sub-tenant was a matter for the Mid-Landlord to require. Had there been any conception of the Landlord's being given a direct title to sue on Clause 6(5)(b) it would have been natural to give the Landlord a right to require such a written undertaking. It all confirmed that the Landlord was not given any direct right of enforcement of the terms of the Sub-lease, including Clause 6(5)(b). The inclusion of the words "without previously obtaining the consent of the Landlord" was a protection for the Mid-Landlord by reflecting the need, implied under Clause 3(12)(b) to obtain the Landlord's consent in terms of that clause. It was in the Mid-Landlord's interest to ensure that no purported assignation of the sub-tenancy took place without the consent of the Landlord, lest questions be raised as to the continuing validity of the Lease.

The existence in Clause 6.1 of the Sub-lease of an undertaking by the sub-tenant to uphold the terms of the Lease was neither here nor there. It did not put the Sub-tenant in a direct relationship with the Landlord. The provision simply entailed an undertaking by the Sub-tenant not to put the Mid-Landlord in breach of the Lease. The position was analogous to the relationship of contractor and sub-contractor in a building contract, in which respect counsel referred to Cormorex Limited v Costelloe Tunnelling (London) Limited 1995 S.L.T. 1217.

Further it was evident that under Clause 3(12)(b) of the Lease the Landlord required to act reasonably in the granting or withholding of consent to an assignation of the Lease or the giving of a sub-lease. It did not make any sense that the terms of Clause 6.5(b) of the Sub-lease give the defenders an absolute veto when the terms of the Lease remained unaltered. It could not be said that a sub-lease had to endure until its ish or the ish of the Lease. A sub-tenant might plainly renounce his sub-tenancy, whereupon the Mid-Landlord could create a new sub-tenancy to which the Landlord could not unreasonably refuse consent.

Counsel for the pursuers accordingly moved that his preliminary plea be upheld to the extent of granting decree de plano in relation to the second conclusion, deleting the averments of jus quaesitum tertio which I have already set out.

The central issue between the parties at this stage in the proceedings appears to me to be whether the provisions of Clause 6.5(b) of the Sub-lease give to the defenders a right of absolute veto of any assignation of the Sub-lease notwithstanding that the defenders are not, of course, parties to the Sub-lease.

The general rules governing the relationship between a landlord and a sub-tenant are not favourable to the contention for the defenders of a jus quaesitum tertio because it is well established that since a landlord is not a party to the sub-lease he is not entitled to enforce its terms directly. The rule that the landlord has nothing to do with the under-tenant, there being no privity of contract between the landlord and the sub-tenant was authoritatively laid down by the House of Lords in The Duke of Queensberry's Executors' case. In a passage to which I was referred in Rankine (197) it is put thus - "there being no privity of contract between [lessor and sub-lessee] no rights or obligations can arise directly between them on the footing of contract."

In the course of his submissions counsel for the defenders referred to the recognition in the speeches in Hislop v McRitchie's Trustees that the presence of some mutuality and community of rights and obligations might enable a condition of a contract of feu to be jus quaesitum tertio and thus enforceable by another feuar. Counsel suggested that the structure of Lease and Sub-lease, the latter including the provisions of Clause 6.1 whereby the sub-tenant undertook to implement and observe the non-monetary provisions of the Lease, and the granting of consent being subject to the condition that the Sub-lease be in terms in which it was ultimately executed, created an analogous community of rights and obligations. In my opinion that contention is not sound. Hislop v McRitchie's Trustees, and also Nicholson v Glasgow Asylum for the Blind to which counsel for the defenders also referred in connection with this aspect of his argument, were concerned with the possibility of enforcing feuing conditions among feuars inter se, the feuars holding from the same superior. That situation is, I think, quite distinguishable from the linear arrangements of landlord, tenant/mid-landlord, and sub-tenant where the general and well established rule is that of privity of contract. Further, I do not think that the terms of Clause 6.1 of the Sub-lease assist the defenders. Rankine at 198/9 states: "....in the common form of sub-lease the sub-tenant binds himself to implement the whole stipulations incumbent on the lessee, as specified in the principal lease. It has been decided in England, on general grounds equally applicable to the law of Scotland, that such an obligation is not only an obligation ad factum praestandum, enforceable by the lessee, but also, in the event of a breach by the sub-lessee, a contract of indemnity rendering the latter liable in damages and in expenses properly incurred in an action brought by the landlord against the lessee to enforce the covenance of the principal lease; but that no direct action lies at the instance of the landlord against the sub-lessee." The authority for that proposition is given as Hornby v Cardwell (1881) 8 Q.B.D. 329. As was also pointed out by counsel for the pursuers, similarly restricted consequences flow in other contracts where a sub-contractor undertakes to observe the provisions of a main contract (c.f. Cormorex).

Accordingly, in so far as counsel for the defenders sought to derive from the structure of Lease and Sub-lease and the provisions of Clause 6.1 of the Sub-lease some general or wider right on the part of the landlord to enforce the provisions of the Sub-lease I reject that contention.

In considering whether a particular provision of a contract is jus quaesitum tertio the test is not simply whether the provision confers some benefit on the tertius but whether it is evident that the contracting parties intended to give that tertius a title to sue upon the contractual provision in question. Thus, in Nicholson v Glasgow Asylum for the Blind the Lord President said, at 400:

In judging of whether, in executing the present Sub-lease, the pursuers and Sears Clothing Company Limited intended to give the defenders a right to enforce its provisions, particularly Clause 6.5(b), it may be observed at the outset that whereas the Sub-lease deals at some length with the remedies available to the Mid-Landlord (c.f. Clauses 7, 10) nothing in the Sub-lease appears to contemplate the Landlord having any powers to enforce its terms. In particular, the Landlord is not given any right of irritancy. During the course of the argument counsel for the defender suggested that interdict would be available and he subsequently referred to the final sentence of page 199 in Rankine in which it is indicated that the preventative remedy of interdict may be available to the landlord "when he sees a negative provision of the principal lease or of the common law on the point of being broken by the sub-lessee". However that passage is plainly directed to the issue of the landlord's limited ability to enforce a lease, not a sub-lease.

A central part of Mr Clancy's contention that Clause 6.5(b) of the Sub-lease was intended to give the defenders an enforceable right of veto was his submission that the relevant part of that clause was of benefit only to the Landlord. Where the only benefit in performance lies with the third party, a jus quaesitum tertio could more readily be admitted (c.f. Gloag on Contract, 236). Since the provision was not of any benefit at all to the Mid-Landlord the intention must therefore have been to confer a right of objection on the Landlord.

Although that submission had some initial attraction I have come to the conclusion that it is not sound. As was pointed out by counsel for the pursuers, a mid-landlord does have an interest in ensuring that any transmission of occupancy takes place with the approval of his landlord so as to obviate any risk of his tenancy under the lease being put in question. That is particularly so if, as counsel for the pursuers submitted, consent to an assignation of the Sub-lease is impliedly required under Clause 3(12)(b) of the Lease. I therefore do not consider that it can be said that the provisions of Clause 6.5(b) of the Sub-lease, in so far as they refer to the obtaining of the Landlord's consent, are without interest to the Mid-Landlord.

It is also to be observed that if the clause is seen as operative only between the parties to the Sub-lease the omission of any reference to unreasonable withholding of consent on the part of the Landlord is entirely comprehensible, since the imposition of an obligation not to act unreasonably could not be achieved in the bilateral Sub-lease. However, if the defenders' standpoint were correct, the Mid-Landlord and the Sub-tenant must have intended to bring about the result of giving the Landlord an absolute veto over assignation of the sub-tenancy, albeit that the creation of a new sub-tenancy on essentially equivalent terms would be subject only to the Landlord's qualified power of veto. I consider that intention to have been unlikely, in any practical sense.

The argument for the defenders that Clause 6.5(b) of the Sub-lease gives a power of veto - a jus quaesitum tertio - to the defenders was deployed largely in tandem with the argument that the scope of Clause 3(12)(b) of the Lease is restricted only to instances of assignation of the Lease itself or the creation of a sub-lease and does not apply even by implication to the assignation of a sub-tenancy (or even, one supposes, the creation of a sub-sub-tenancy). That is the argument upon which the relevancy of the action in so far as underlying the first conclusion was attacked.

It is evident - and I think not disputed - that the terms of Clause 3(12)(b) of the Lease repose on an intention that, subject to a test of reasonableness, the Landlord have power to control the identity of the occupier, whether assignee or under-tenant. The clause does not address in express terms the particular event that there be a proposal to effect a change of occupancy by the medium of an assignation of a previously approved sub-lease. According to Mr Clancy, the absence of express provision for that event meant simply that consent to the grant of a sub-tenancy resulted in the total flying off of the Landlord's qualified right of control of occupancy. Mr Scott, on the other hand, contended that the natural import of the clause is that the qualified control continues by implication to the analogous situation of a change of occupancy by virtue of an assignation of the sub-tenancy.

In the well-known dictum of Lord McLaren in Morton v Muir Brothers 1907 SC 1211, 1224:-

That test equiparates in very broad terms with that which is sometimes described as the "officious bystander" test of judging the parties' reaction were the apparent lacuna in the express provisions to be brought to their attention.

I have no real doubt that had the parties to the Lease been asked to consider expressly the event of a change in the identity of the occupying sub-tenant they would have seen Clause 3(12)(b) as applying likewise to that event. That would be a logical position to which no reasonable person would take exception. Further, it is I think telling that the terms of the letter of 28 July 1999 written by the solicitors for the tenant under the Lease appear to take the need to obtain the Landlord's consent in terms of the Lease to the proposed assignation of the sub-tenancy as being self-evident. It appears not to have occurred to them that the clause could fail to extend to the proposed assignation of the Sub-lease. That evident reaction confirms my view that the implication of Clause 3(12)(b) of the Lease is that the consent of the Landlord is to be obtained for any transmission of a sub-tenant's right, that consent being of course subject to the question of its being unreasonably refused.

In light of all of these considerations I am persuaded that on the substantive issues which were debated the standpoint adopted by the pursuers is to be preferred. Put shortly, the terms of Clause 6.5(b) of the Sub-lease are not jus quaesitum tertio so far as the defenders are concerned. The provisions of Clause 3(12)(b) of the Lease imply that the consent of the defenders to an assignation of a Sub-lease is required but that such consent is subject to the qualification that it may not be unreasonably withheld.

There remains the issue of the defenders' plea of no title to sue, limited in argument by counsel by the defenders to the second conclusion. I have left this matter to the end because I consider that it turns largely on the view taken of the substantive issues. As I understand it, the plea proceeds on the primary basis that the defenders have an absolute right of veto respecting the assignation to Adams of the sub-tenant's interest in the Sub-lease and also that the defenders have no interest in that transaction or its prohibition. That standpoint not only proceeds on the assumption of a jus quaesitum tertio under the Sub-lease (which I have rejected) but also overlooks that the pursuers as tenants/Mid-Landlords are indeed parties to the Sub-lease. It further overlooks that the assertion of a veto on the assignation of the Sub-lease to Adams is made integrally with a contention of irritancy of the Lease and in response to the pursuers' claim - which I have concluded to be sound - that they are entitled to receive consent to the assignation of the Sub-lease to Adams in the absence of any reasonable grounds for the withholding of such consent. There is thus, in my view, a right under the Lease advanced in answer to the defenders' claim to be entitled to irritate the Lease, respecting which the attempt by the defenders to claim a vested third party right under the Sub-lease is simply a part. In these circumstances I do not consider that there is merit in the defenders' plea of no title to sue.

In light of the foregoing I shall accede to the pursuers' motion to sustain the pursuers' second and third plea in law to the extent of granting decree de plano in respect of the second conclusion.

Counsel for the pursuers also moved me to delete from probation the averments contained in the defenders' answers to the effect that Clause 3(5)(b) of the Sub-lease conferred a jus quaesitum tertio, these being the averments which are quoted above. These averments are essentially averments of a legal contention rather than averments of fact and since I have upheld the contrary legal contention by granting decree de plano in respect of the second conclusion it appears to me to be technically unnecessary to delete them.

I shall put the case out By Order as to further procedure in relation to the averments made by the pursuers of the financial standing and probity of Adams, which averments are not admitted.