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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Optical Express (Gyle) Ltd v Marks & Spencer Pcl & Ors [2000] ScotCS 35 (8 February 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/35.html Cite as: [2000] ScotCS 35

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The pursuers are the tenants of Unit 41 of the Gyle Shopping Centre, Edinburgh, in terms of a lease dated 19 January and 3 February 1995. They carry on business there as opticians. The first defenders (Marks & Spencer plc) and the second defenders (Safeway Stores plc) are the present landlords of the centre. The third defenders (Vision Express (UK) Limited) have entered into a lease with the first and second defenders in respect of Unit 56 of the centre. They propose to carry on business there as opticians. In this action the pursuers seek (1) declarator that the first and second defenders are bound by the terms of a back letter dated 3 February 1985 by which their predecessors in title as landlords, the City of Edinburgh District Council, agreed that while the pursuers remained in occupation of Unit 41 theirs would be the only unit in the centre trading as an optician as a principal use; (2) reduction of the lease granted by the first and second defenders in favour of the third defenders in respect of Unit 56; and (3) interdict and interim interdict of the third defenders from implementing the rights conferred on them by that lease, and in particular from fitting out or occupying the unit for the purpose of trading as an optician or from so trading from it.

The pursuers moved for interim interdict in terms of the third conclusion of the summons. I heard submissions in support of and in opposition to that motion on 31 January and 4 February 2000.

The lease under which the pursuers occupy Unit 41 of the centre was granted by the Council, who were then the heritable proprietors of the centre. A copy of that lease is No. 6/1 of process. The lease was for a period of twenty-five years from the date of entry, 10 October 1993. In terms of clause 3.2.1 the pursuers undertook:

The landlord's interest in the lease was sold by the Council to the first and second defenders on 10 January 1997, and the sale was intimated to the pursuers on the same date (see No. 6/2 of process).

On 3 February 1995 (i.e. on the same date as that on which the Council executed the lease) the Head of the Council's Legal Services Division wrote to the pursuers a letter ("the back letter"), a copy of which is No. 6/3 of process. The back letter was in inter alia the following terms:

The Multiple Occupancy Building is defined in clause 1.2.40 of the lease, and may for practical purposes be taken to be the part of the centre lying between the two principal stores now occupied by the first and second defenders respectively. It is accepted by all parties that the Multiple Occupancy Building has not been extended. The part of clause 2 of the back letter that the pursuers seek to enforce in this action is therefore the first sentence.

The issues which require to be considered in determining whether to grant the pursuers' motion for interim interdict are (1) whether or not the pursuers have made out a prima facie case for interdict against the third defenders in terms of the third conclusion of the summons, and (2) if so, whether or not the balance of convenience favours the granting of interim interdict in terms of that conclusion.

In order to establish a prima facie case for interdict, the pursuers must make out a prima facie case (a) that the back letter conferred on them rights which are enforceable by them against the first and second defenders as singular successors of the Council as their landlords, and (b) that in entering into their lease with the first and second defenders, the third defenders acted in mala fide.

Mr Currie, for the pursuers, submitted that the back letter was critical to the pursuers' decision to take up the tenancy of Unit 41, because of the capital expenditure involved in fitting out the unit and the high rental charges at the centre. But for the exclusive right to trade as an optician in the centre conferred by the back letter, it was doubtful whether the return from the unit would have been sufficient to justify the pursuers' entering into the lease. Such exclusivity clauses were, he submitted, commonplace in leases of units in retail shopping centres. He gave as examples (i) the Overgate shopping centre in Dundee, where he said an associate company of the pursuers had the benefit of such a clause in respect of the upper level of the centre and the defenders had a similar right in respect of the lower level; (ii) phase II of the Almondvale centre in Livingstone and the Princes Mall in East Kilbride, at each of which another optician had similar exclusive rights; (iii) the Thistle Marches centre in Stirling, and a centre in Buchanan Street, Glasgow, at each of which Virgin had exclusive rights to trade in videos, CDs and electronic games, and (iv) again the Overgate centre in Dundee, where a travel agent had similar exclusive rights to trade as such. (Later in his submissions Mr Currie added that at the Gyle centre James Thin had exclusive rights to trade as booksellers conferred on them by back letter granted in 1993, and he understood that the first and second defenders were treating that provision as binding on them.) Mr Currie was unable to say whether in the other examples he gave the right was conferred by back letter or by a provision in the lease itself. He went on to submit that the pursuers' turnover at the Gyle was very likely to be seriously diminished if the third defenders opened and traded from the unit which they had taken on lease. In light of those considerations, the exclusivity provision contained in the back letter could not be regarded as collateral to and separate from the lease itself, since it bore directly on the assessment by the tenant of his ability to meet the rent demanded.

Turning to the terms of the back letter, Mr Currie submitted that it was properly to be construed as constituting a variation of the lease itself. That, he submitted, was clear from the last sentence of the back letter. There was nothing in its terms to prevent its being construed as binding on singular successors of the granter as landlord. The fact that it was expressly said to be personal to the tenant yielded the inference that it was intended to be enforceable against singular successors of the landlord. The purpose of the clause supported the same inference; the protection which it offered to the tenant would be destroyed if it did not continue throughout the duration of the lease. It was commonplace for the landlord's interests in shopping centres to be bought and sold as investments. That must therefore have been in the parties' contemplation, and it was to be inferred that it was not intended that the benefit of the back letter would be lost to the pursuers on such a sale.

On the basis that the exclusivity provision contained in the back letter was of such fundamental importance to the tenant's ability to secure from the subjects a return that would justify the rent charged that it could be seen to be integral to the lease, and thus to constitute a variation of it, Mr Currie went on to submit that its provisions therefore ran with the land so as to bind the singular successors of the landlord. He referred to Gloag on Contract, pp. 233-234; Paton and Cameron, The Law of Landlord and Tenant in Scotland, pp. 94-97; and The Laws of Scotland, Stair Memorial Encyclopaedia, Vol. 13, §§ 239-242. The pursuers' lease satisfied the requirements of the Leases Act 1449 (c. 6), and thus bound the landlord's singular successors. Its conditions, if real rather than personal, likewise bound singular successors. It did not matter that no example could be cited of an exclusivity clause of the sort here in question being held to be real. If the test was whether the condition was "altogether extrinsic" to the lease (Gloag, p. 233, citing Lord Justice-Clerk Boyle in Turner v Nicolson (1835) 13 S 633), that could not be held to be the case because of the fundamental practical importance of the exclusivity clause to the tenant's ability to undertake the lease at the rent demanded. If the test was whether the obligation was inter naturalia of the lease, that depended on whether the obligation was one of common occurrence in a lease (Gloag, p. 234 and Cameron and Paton, p. 95, both citing Lord Moncrieff in Bisset v Magistrates of Aberdeen (1898) 1 F 87), and the information provided about other examples of such exclusivity clauses supported the conclusion that such a provision was common in leases of units in shopping centres. Mr Currie suggested that the exclusivity clause was in a back letter rather than in the body of the lease in the present case because the benefit of it was personal to the pursuers. That did not make it extrinsic to the lease. Given the incidence of sales of the landlord's interest in shopping centres, the purpose of the clause - to give the tenant assurance as to the return which he would be able to achieve - would be defeated if the clause were not regarded as intrinsic to the lease.

In these circumstances, Mr Currie submitted, the pursuers had made out a prima facie case that the terms of the back letter were binding on the first and second defenders as singular successors of the Council.

Mr Hodge, for the first and second defenders, made a number of submissions about the construction of the back letter. (1) The back letter was executed on the same day as the lease, and if its content had been intended to form part of the lease it could have been made part of the principal document. (2) If the back letter was to be seen as a variation of the lease, one would have expected the guarantor, who was a party to the lease, to be a party to the back letter as well, but he was not. (3) The lease was registered in the Books of Council and Session, but the back letter was not. (4) It was established commercial conveyancing practice to leave such exclusivity agreements outside the lease. Of twenty-two such agreements at the Gyle centre only two were in the body of the lease and the remainder were in back letters. That was particularly so where, as here, the right conferred was personal to the original tenant. (5) Parties might well wish to keep the exclusivity agreement private; otherwise it would feature in rent review calculations. The pursuers were currently in negotiation about review of their rent as at October 1998, and the terms of the back letter played no part in those negotiations. (6) In a number of back letters entered into by the Council in respect of units at the Gyle centre the Council had undertaken an obligation to take any singular successors bound by the terms of the back letter. Twelve of the twenty back letters contained provisions to that effect. In particular the back letter in relation to James Thin fell into that category, and the first and second defenders had been taken bound as its terms required. That was why they accepted that they were bound in that case.

Mr Hodge went on to make a number of more detailed points about the language of the back letter. (1) It did not, in its terms, purport to insert an additional provision into the lease. (2) Its provisions were said to be "notwithstanding the provisions of the said Lease". (3) It was expressly stated that the letter was to be personal to the tenant. (4) The letter was expressly not assignable, whereas with consent the lease was assignable (Schedule Part V, clause 22(b)). (5) Although the last sentence of the back letter referred to the lease being "hereby varied", it would be according that sentence too much weight to regard it as indicating conclusively that the exclusivity agreement formed an integral part of the lease. The exclusivity agreement was no doubt an inducement to the tenant to enter into the lease, but it was not a part of it. Mr Hodge therefore submitted that there was nothing in the language of the back letter to indicate that it was intended to be binding on singular successors of the landlord. He pointed also to the limited scope of the protection that the back letter afforded the pursuers. It was only aimed at excluding another trader operating as an optician as the principal use of a unit - it did not seek to exclude another trader who carried on business as an optician as an incidental part of another business. Boots the Chemist had a unit at the centre which included an optical department. Moreover, it was intended to endure in its original form only so long as the centre remained unextended.

Mr Hodge went on to submit that, even if he was wrong in his submission that the back letter did not vary the lease, and thus did not form part of it, the obligation which it contained was not of such a nature as to transmit against singular successors of the original landlord. He cited Bisset v Magistrates of Aberdeen (1898) 1  F 87. The question in that case was whether an obligation in a lease for 999 years to grant a feu charter of the subjects if the tenant requested it was binding upon singular successors of the granter. Lord Moncrieff said (at 90):

To transmit against singular successors of the landlord, Mr Hodge submitted, the obligation constituted by the back letter required to be shown to be a natural and ordinary stipulation in a lease. That turned, at least partly, on practice. The pursuers did not say that such a provision was normally to be found in leases of units at retail shopping centres, as distinct from in back letters relative to such leases. The examples given by Mr Currie in relation to the Overgate centre in Dundee and the Almondbank centre in Livingstone were, Mr Hodge said, cases of back letters. In the circumstances the obligation created by the back letter could not be held to be inter naturalia of the lease. It therefore did not transmit against singular successors of the landlord.

Mr Martin for the third defenders adopted Mr Hodge's submissions, and added further observations of his own. He submitted, first, that an obligation on a landlord created separately from the lease should only be held to be binding on singular successors of the landlord if it could be shown clearly that it was intended to have that effect. Here the relationship constituted by the lease was that of landlord and tenant of Unit 41 at the Gyle centre, but the back letter affected the freedom of action of its granter not as landlord of that unit, but as heritable proprietor of the remaining units at the centre. Although the lease was registered in the Books of Council and Session, the back letter was not so registered, and did not enter the register of sasines. The pursuers were in effect arguing for the imposition of a real burden on the heritable proprietors of the Gyle centre without satisfying the stringent criteria laid down in Tailors of Aberdeen v Coutts (1837) 2 Sh & Macl 609, (1840) 1 Rob 296. Secondly. Mr Martin submitted that the fact that the restriction on letting other units for use as optician's shops had not been included in the lease, but had been expressed in a separate document, militated against the proposition that the restriction was inter naturalia of the lease. Thirdly, Mr Martin questioned whether it was possible to create an obligation which transmitted against the singular successors of the granter but was personal to the grantee. So far as the terms of the back letter were concerned, Mr Martin emphasised that there was nothing to suggest that it was intended to effect a variation of the lease, except the language of the last sentence, which was contradictory of the earlier expression of the obligation in the back letter as being "notwithstanding the provisions of the said Lease". The back letter defined the Council as "the Landlord" and the pursuers as "the Tenant". It did not adopt the definitions of those terms contained in the lease. That was consistent with the declaration that the letter was personal to the Tenant, i.e. to the pursuers. It would not be consistent with the obligation undertaken by the Council being binding on singular successors.

In response Mr Currie submitted that it was wrong to regard the back letter as a restriction on the use by the landlord of other heritable property belonging to him. The units affected by it were parts of the centre, and the restriction on the landlord's freedom to let another unit for the same use was part of a package of provisions which also comprised the provisions of the lease relating to trade mix and the restrictions on assignation of the tenancy. So far as the language of the back letter was concerned, Mr Martin had misconstrued the use of the terms "Landlord" and "Tenant". Those were references back to those terms as used in the lease. Mr Martin was also wrong in submitting that a clause personal to the tenant could not transmit against singular successors of the original landlord. The absence of a time limit in the back letter strongly suggested that it was meant so to transmit. The fact that the restriction was to become looser on extension of the centre did not militate against transmissibility. All those concerned were aware at the time the back letter was granted that what was in contemplation was a substantial extension. The question was not whether as a matter of language the back letter amended or varied the lease, but whether as a matter of law it should properly be regarded as part of the lease. There was a cogent reason for its being expressed in a separate document, namely the fact that it was personal to the tenant. The availability of the option of taking the granter of the back letter bound to take his singular successors bound by it was not decisive against transmission in the absence of such an arrangement. What the availability of that option showed was that there was nothing inherently repugnant in having such a provision transmit against singular successors.

In my view the pursuers' case that the first and second defenders are bound by the provisions of the back letter not to let Unit 56 to the third defenders for use as an optician's shop depends on their showing both (1) that the back letter forms part of the contract of lease originally entered into between the pursuers and the Council, and (2) that the obligation undertaken by the Council in the back letter was of such a nature as to run with the land and thus transmit automatically against the singular successors of the Council as landlords. Both must be shown because (granted that the first and second defenders were never taken expressly bound by the back letter) it is only as a provision of the lease that the exclusivity clause could run with the land and become binding on them as singular successors of the Council in the landlord's interest, while it is possible for an obligation to form part of a lease yet remain personal to the original contracting parties.

So far as the first of these matters is concerned, regard must in my view be had not only to the language of the back letter, but also to the form in which the pursuers and the Council chose to constitute the various elements of their contractual relationship, and to the nature and purpose of the obligation constituted by the back letter. In light of the submissions that I heard, it does not seem to me that those considerations all point in the same direction.

My conclusion, so far as this aspect of the case is concerned, is that the pursuer's case for the proposition that the back letter constituted a variation of the lease, so that the exclusivity clause which it contained became an integral part of the contract of lease between the pursuers and the Council, is arguable but not very strong.

I therefore turn to consider the second aspect of the pursuers' case for the enforceability of the exclusivity clause against the singular successors of the Council as landlords of Unit 41. It was not, as I understood it, a matter of dispute between the parties that a lease which satisfied the requirements of the Leases Act 1449 might nevertheless contain a provision that was personal to the original contracting parties and therefore did not run with the land and bind the original landlord's singular successors. Whether an obligation is binding on singular successors depends on whether it is inter naturalia of the lease. It is clear from Bisset v Magistrates of Aberdeen that one factor relevant to determining whether an obligation is inter naturalia of the lease will be whether it is one of common occurrence in the particular class of lease, but it seems to me that the authors of both Gloag on Contract and Cameron and Paton on Landlord and Tenant perhaps go too far in suggesting that that is the only test. In Bisset Lord Moncrieff said no more than that proof that the obligation was "customary and usual" would have "materially aided the pursuer's contentions". His Lordship went on to say that the particular obligation could "scarcely be said to be inter naturalia of the lease", because it altered the tenure from lease to feu. I infer from that passage in his Lordship's opinion that the matter is primarily a question of the nature of the obligation, although evidence of customary practice will assist in making out a case that a particular obligation is inter naturalia of a particular class of lease.

In my opinion Mr Martin was right in his analysis of the nature of the exclusivity clause. Although it was entered into as a matter of contract between the Council as landlords and the pursuers as tenants of Unit 41 at the Gyle centre, its effect was nothing directly to do with the lease of Unit 41, but rather was to restrain the way in which the Council as owners or landlords of the other units in the centre might let those other units. In my opinion such an obligation is prima facie not inter naturalia of a lease. I do not consider that that prima facie conclusion is displaced by the fact that Unit 41 is one unit of a shopping centre and the land in respect of which the landlord's freedom of action is restrained is the remainder of the centre. Nor, in my view, does the close practical connection which the exclusivity clause has with the economic judgment which the tenant had to make in deciding whether or not to take the tenancy go to make the case that it is an obligation which runs with the land. As Mr Hodge pointed out, the examples given by Mr Currie of other centres at which exclusivity clauses were deployed do not necessarily go to support the proposition that such clauses are "customary and usual" in leases of units in shopping centres. Everything turns on whether the clauses are part of the leases. Cases where there is a contractual provision holding the original landlord bound to take his singular successors bound by the exclusivity clause do nothing to support the pursuers' case. Indeed they are harmful to it. On Mr Hodge's information it is relatively uncommon for an exclusivity clause to be included in the formal lease. Cases of back letters in which there is no express obligation to take singular successors bound would only help the pursuers' case if they could show that in such cases, as they maintain in the present case, the back letter is to be regarded as a variation of and thus integral to the contract of lease.

In these circumstances I am of opinion that the exclusivity clause in the present case is prima facie not inter naturalia of the lease of Unit 41, and therefore prima facie not binding on the first and second defenders as singular successors of the Council as landlords. The material which the pursuers bring forward about the use of such clauses elsewhere is not in my view sufficient to afford strong ground for thinking that they will be able to rebut that prima facie conclusion.

Mr Martin advanced a separate argument against the enforceability of the back letter against the first and second defenders based upon the proposition that the restriction contained in it was in restraint of trade. He referred to British Motor Trade Association v Gray 1951 SC 586 at 598. He accepted, however, that it was not a matter on which I could reach a view at this stage of the case. Mr Currie submitted that, given the information before me about the prevalence of such restrictions, at the Gyle centre and elsewhere, I should not regard it as likely that such agreements, if they are in restraint of trade, would be regarded as being unreasonable. In the event I do not find it necessary to take a view on that aspect of the submissions.

Mr Currie recognised that in order to make a prima facie case for the interdict sought the pursuers required to advance the proposition that the third defenders were in bad faith in contracting with the first and second defenders to take a lease of Unit 56 for use as an optician's shop. He pointed to the pursuers' averment that the third defenders "were at the time they contracted into said lease aware of the terms of the said back letter". For the principle of law on which he founded he referred to Rodger (Builders) Limited v Fawdry 1950 SC 483, and Trade Development Bank v David W. Haig (Bellshill) Limited 1983 SLT 510 at 517. It was sufficient, he submitted, that the third defenders were aware that the pursuers had a right enforceable against the first and second defenders restricting their ability to let Unit 56 for use as an optician's shop. It did not matter that the subjects of which the third defenders had taken the lease were different from the subjects over which the pursuers had real rights.

Mr Hodge submitted that Mr Currie was seeking to apply the Rodger v Fawdry principle beyond its proper scope. He referred to Wallace v Simmers 1960 SC 255, where Lord President Clyde said (at 259):

(See also per Lord Guthrie at 261). In Trade Development Bank v Warriner & Mason (Scotland) Limited 1980 SC 74, Lord President Emslie said (at 97):

The doctrine did not apply to personal rights affecting land (Jacobs v Anderson (1898) 6 SLT 234).

Mr Martin submitted that the rule in Rodger v Fawdry applied only where there was a right capable of being made real in respect of the land which the person whose good faith was in question acquired. Here there was no real right, or right capable of being made real, in Unit 56. Further, he submitted that here the third defenders had taken the steps necessary to preserve their good faith. He cited Lord Jamieson (at 499):

As was evident from the correspondence (Nos. 7/1 to 7/3 of process), the third defenders were aware of the of the existence of the back letter, but they had not relied on a mere assertion by the first and second defenders that it did not bind them. They had obtained a copy of it and obtained their own independent advice that it did not bind the first and second defenders. That was sufficient to put them in good faith.

In response Mr Currie submitted that Mr Martin's submission on good faith was misconceived. The third defenders could not claim to be in good faith in a question with the pursuers is they had proceeded without ascertaining whether the pursuers maintained their competing right.

In my opinion the pursuers' position on this aspect of the case is unsound. It involves in my view a confusion between two types of real right. If the pursuers are right in their primary contention, the pursuers have a real right against the first and second defenders in the sense that the exclusivity clause as part of the lease of Unit 41 has become enforceable against the first and second defenders as singular successors of the Council. But the pursuers have no real right, and no right capable of being made real, in the subjects of the lease between the first and second defenders and the third defenders, namely Unit 56. As is in my view clear from what was said by Lord President Emslie in Trade Development Bank v Warriner & Mason (Scotland) Limited, the sort of right that will prevent a party from taking a right to subjects in good faith is a prior right in respect of the relevant subjects which is either real or capable of being made real.

That is sufficient to lead me to the conclusion that the pursuers do not have a prima facie case that the third defenders were in bad faith in entering into the lease of Unit 56 in knowledge of the existence of the back letter in respect of Unit 41. I do not require to express a view on whether it would have been sufficient (as Mr Martin submitted) for the third defenders to have taken independent advice on the effect of the back letter or whether (as Mr Currie submitted) they could only have preserved their good faith by making inquiry of the pursuers.

In these circumstances I have come to the conclusion that the pursuers do not have a prima facie case for interdict against the third defenders.

In light of the view which I have taken on whether the pursuers have a prima facie case for interdict, the question of balance of convenience does not arise. I should, however, record the submissions which I heard on that matter, and the view which I would have taken on it had I held that the pursuers had stated a prima facie case.

Mr Currie accepted that the pursuers did not require interim interdict against the third defenders' fitting out or occupying Unit 56. He confined his motion to interim interdict against their trading as opticians from that unit. He pointed to the fact that the pursuers had been trading from Unit 41 since 1993. He maintained that competition from the third defenders trading as opticians from Unit 56 would be likely to have a serious effect on the pursuer's turnover. The balance of convenience, he submitted, was clearly in favour of maintaining the status quo.

Mr Hodge maintained that even if the pursuers had a prima facie case for interdict, it was a weak one, and that consideration should be taken into account in the balance of convenience (Toynar Limited v Whitbread & Co plc 1988 SLT 433; N. W. L. Limited v Woods [1979] 1 WLR 1294 per Lord Fraser of Tullybelton at 1310). Further, the third defenders were already fitting out Unit 56. Interim interdict would prevent them from trading, and would cause them loss of profit. Interim interdict would also leave the first and second defenders with the undesirable situation of an empty unit in the centre. The pursuers would have an adequate remedy in an action of damages, if they succeeded in obtaining reduction of the lease in favour of the third defenders.

Mr Martin stated that the third defenders had already incurred costs of £150,000 in fitting out Unit 56. They were due to open in early March. They had already engaged nineteen members of staff to work in the unit. Interim interdict would deprive customers of the benefits of competition. The pursuers would have an alternative remedy in claims for damages against the first and second defenders, and possibly against the Council and the third defenders. It was not inevitable that the opening of Unit 56 would cause the pursuers loss of turnover. The protection afforded by the exclusivity clause was in any event unpredictable, given the scope it left for competition from establishments which were not exclusively opticians, such as Boots. The pursuers' user clause did not confine them to trading as opticians, but allowed them to deal in other optical products. The pursuers were aware of the proposed lease in favour of the third defenders in December 1999, but did not attempt to interdict the grant of the lease. If they had done so, the matter could have been decided before the third defenders were committed to expenditure.

In response, Mr Currie referred to the pursuers' accounts, No. 6/7 of process. They showed turnover in 1998 of £1,260,000, and shareholders' funds of £790,000. It was estimated that the likely effect of the opening of Unit 56 was a loss of turnover of about £10,000 per month. There had been no delay in bringing proceedings. Mr Moulsdale, the pursuers' principal, had become aware of the matter in mid-January, and had at once taken it up with the Council. The fact that the third defenders had engaged employees was not of great weight, because there was a shortage of trained optical staff in Scotland. The pursuers were a healthy established business that could meet a claim for damages if, having obtained interim interdict, they ultimately failed.

If I had held that the pursuers had set out a prima facie case for interdict, I would have taken the view that the balance of convenience did not favour the grant of interim interdict. In reaching that conclusion, I would have taken into account all of the factors put before me. The considerations which would have weighed with me to a material extent include the view which I would in that event have held that the prima facie case was a relatively weak one. I would have accepted that the opening of Unit 56 would have been likely to cause a drop in the pursuers' turnover, but I would have taken the view that the financial information, put before me by Mr Currie with a view to satisfying me that the pursuers would be able to meet a claim for damages in the event of their failing to obtain reduction of the third defenders' lease having obtained interim interdict, tended to suggest that they would be able to bear the sort of loss of turnover that was contemplated, at least for a few months. As Mr Currie pointed out, there is no reason to suppose that a final determination of the case could not be achieved fairly speedily. There seems to me to be no real risk that if the pursuers ultimately succeed they will have any difficulty in obtaining satisfaction of an award of damages from the defenders in respect of any loss suffered in the interim. I should make it clear that in holding the balance of convenience to be against the grant of interim interdict, I would not have given weight to the suggestion that the pursuers had delayed in seeking that remedy, given the conflict of information given to me on that point.

In the result I refuse the pursuers' motion for interim interdict in terms of the third conclusion on the ground that, for the reasons that I have discussed, I am not satisfied that the pursuers have made out a prima facie case for interdict. Had I taken a different view on that issue, I would in any event not have been persuaded that the balance of convenience favours the grant of interim interdict.