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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Pik Facilities v. Shell Uk [2002] ScotCS 125 (3rd May, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/125.html Cite as: [2002] ScotCS 125, 2002 SCLR 832

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Pik Facilities v. Shell Uk [2002] ScotCS 125 (3rd May, 2002)

OUTER HOUSE, COURT OF SESSION
A6/1998	OPINION OF T.G. COUTTS, Q.C., sitting as a Temporary Judge in the cause PIK FACILITIES LIMITED Pursuers; against SHELL U.K. LIMITED Defenders:   ________________

 

 

Pursuers: Keen, Q.C., Di Emidio; McClure Naismith

Defenders: M G Scott, Crawford; Shepherd & Wedderburn, W.S.

Third Party: E Robertson; Biggart Baillie

3 May 2002

Introductory

1. This action concerns the obligations under a Lease entered into in 1981 between the pursuers' predecessors and the defenders' predecessors. That Lease was to endure for ten years and the ish was 31 December 2000. The pursuers seek to have the defenders ordained to return to the demised premises in order to carry out certain works which they say the defenders are obliged to do in terms of the said Lease.
2. It is apparent from the productions founded upon in the pleadings that a dispute as to the obligations of the defenders and the compliance of the terms of the Lease has been in issue for some time. A dilapidation survey was obtained on 20 April 1993. A further Schedule of Dilapidations was prepared for the pursuers in February 1997. The present action, seeking specific implement or alternatively, damages, was signetted on 26 January 1998. The defenders also obtained a report on dilapidations.
3. Matters were not resolved and the present action was raised during the currency of the Lease. Despite the fact that the Lease has now come to an end, the pleadings still bear the hallmarks of the original position as is evidenced by the pleader's use of the present tense in, for example, Condescendence 2.
4. The action has been amended. It was restored to the Adjustment Roll. The Record closed on 4 August 1999 but no Closed Record was lodged by the pursuers until 21 August 2001. The defenders brought the third parties into the action, but the pursuers have not adopted or made any case against the third parties. The pursuers again amended and a Procedure Roll diet of 13 December 2001 was discharged. The amendment and answers were adjusted and ultimately came to Procedure Roll before me on 21 and 22 February 2002.
5. The pursuers in Condescendence 1 say that they seek to enforce the terms of the Lease, but have an alternative conclusion for damages expressed to be "failing implement" only.

The pleadings about the Lease

6. The pursuers referred to the entire Lease, holding it repeated brevitatis causa in their pleadings. They made, however, specific reference to alleged failures to implement only in terms of Clause 2(8), (9) and (10) and to paragraph (g) of the First Schedule to the Lease. The defenders argued that the Lease had expired and that Clause 2(34) of the Lease applied. The third parties pled Clause 2(34) by way of reference and the pursuers' response was:

"Esto the pursuers are not entitled to specific implement and the relevant obligation on the defenders at the end of the Lease is in terms of Clause 2(34) the measure of liability under said Clause is as hereinafter condescended on and concluded for in the alternative."

The Lease
[7] The terms of the Lease are particularly important in view of an argument presented, in the fourth speech, that there were separate obligations in respect to "subjects let" and in relation to the pipelines.

7. The Lease begins by defining the various pipelines with which it is concerned. It then specifies a defined area of land to be let, together with (1) all buildings, works, fixed plant and fixtures erected thereon, and (2) the rights and privileges specified in the first schedule to the Lease. It reserves certain uses of various facilities to the lessor. The term was from 1 January 1971 to 31 December 2000. The rent clause was in terms of (1) escalating sums of money said to be "the clear yearly rent" and (2) such payments to the lessor in respect of "the additional rent" all as specified and calculated in terms of the provisions of the second schedule.
8. The lessee was obliged to construct three aviation fuel storage tanks and to construct and lay, insofar as not already done, a connecting pipeline. The lessee was also obliged to keep complete and proper books of account so that the additional rent could be calculated from turnover. The fuel storage tanks were to be constructed and erected on the land, the connecting pipes were to be either on or in the land as is evidenced by the plans annexed to the lease and produced in court.
9. The sub-clauses of Clause 2 in the Lease which were founded upon by the pursuers in their pleadings were:

"(8) From time to time and at all times during the said term to keep the subjects hereby let both internally and externally (including the sanitary apparatus and the drains thereof and also the water and electrical installations up to the points of connection referred to in sub-clauses (b) and (c) of the First Schedule hereto (namely the Lessor's meters) and also any other fixed plant and fixtures for the time being comprised in the subjects hereby let whether or not similar to the foregoing) in good and substantial repair and condition and properly cleaned AND ALSO to keep such parts of the subjects hereby let as are for the time being unbuilt upon clean and tidy and in good order and condition AND ALSO the said fuel pipe lines including the connecting pipe line in good and substantial repair and condition.

(9) In every fifth year of the term or at such longer intervals as may be agreed by the Lessor after consultation with the Lessee and also during the last year thereof notwithstanding the manner in which the same shall be determined to paint all the outside wood, metal, stucco or cement work or other outside surfaces (whether or not similar to the foregoing) of the subjects hereby let usually painted in a proper and workmanlike manner and in accordance with the specification contained in the Fourth Schedule hereto or such other specifications as may from time to time be approved by the Lessor.

(10) To paint all the inside wood and metal work or other inside surfaces (whether or not similar to the foregoing) usually painted of the subjects hereby let with two coats of good quality paint as approved by the Lessor in a proper and workmanlike manner in every seventh year of the said term and also in the last year thereof in whatever manner the said term shall be determined."

Sub-clause 15 was referred to in argument and it reads:

"(15) In case at any time during the said term there shall be occasion to rebuild or renew or replace any part of the subjects hereby let or any boundary wall thereof or the said pipe line or the connecting pipeline whether by reason of destruction by fire, explosion, storm, tempest, flood or damage by aircraft or articles dropped therefrom or through decay or from any other cause the same shall be rebuilt, renewed or replaced as the case may be by the Lessee according to the original plans and elevations or specifications thereof or according to such other plans or specifications as shall be previously approved of in writing by the Lessor and not otherwise."

Sub-clauses 33 and 34 read:

"(33) Quietly to yield up unto the Lessor at the expiration or sooner determination of the said term the subjects hereby let, the said fuel pipe lines and also the connecting pipeline, including all fixed plant and fixtures of every kind including tenants' and trade fixtures so painted, repaired, cleansed maintained, amended and kept as aforesaid together with all additions and improvements made thereto and together also with the said rights.

(34) That at least fourteen days before the expiration or other sooner determination of the said term a proper estimate or valuation shall be made as between the Lessor and the Lessee or (sic) any sum or sums required to put the subjects hereby let or part thereof, as in the preceding sub-clause hereof) into such good order, repair and condition as they ought to be left in, in accordance with the undertakings hereinbefore contained and that the Lessee will forthwith pay to the Lessor the amount of such estimate or valuation (which shall be recoverable as liquidated damages PROVIDED ALWAYS that payment by the Lessee of the amount of such estimate or valuation shall relieve the Lessee of any obligation under the preceding sub-clause hereof to carry out the items of repair in respect of which such payment is made."

Pursuers' pleadings

10. It is necessary to look at what the pursuers claim they have put forward as setting out the essential precision in their case for specific implement. The pursuers concluded for specific implement in the following way:

"1. To ordain the defenders to implement their obligations as tenants in terms of the Lease between British Airports Authority and Shell-Mex and B.P. Limited dated 3^rd and 19^th May, 1971 to keep:-

1.1 the subjects let both internally and externally, the sanitary apparatus and the drains thereof and also the water, electrical installations and other fixed plant and fixtures comprised in the subjects let in good and substantial repair and condition and properly cleaned;

1.2 the parts of the subjects let which are unbuilt upon clean and tidy and in good order and condition;

1.3 the fuel pipe lines and hydrants depicted on the plan marked Plan No. 4 annexed and signed as relative to the said Lease and indicated on the said Plan by the word 'Shell' in good and substantial repair and condition;

1.4 the connecting pipe as defined in the Lease in good and substantial repair and condition;

1.5 and that by;

1.5.1 carrying out repairs, redecorations, replacements, treatments and upgradings to the tank farm office block, garage/workshop, power house, hardstanding, fencing and general decoration, electrical wiring circuits and central heating system all as specified in the Schedule of Dilapidations prepared by Bell Ingram dated February 1997;

1.5.2 preparing, repainting and refurbishing the exterior of the fuel storage tanks, plant and pipework, conducting a full internal inspection thereof executing all necessary repairs and replacements shown to be required as a result of such inspection; and replacing the hessian served (sic) electrical cables and Low Voltage distribution switchgear;

1.5.3 decontaminating the ground water and the soil of the subjects let and any adjacent subjects;

1.5.4 putting into and thereafter maintaining in good and substantial repair and condition the two parallel pipelines depicted on the said plan and indicated as aforesaid and associated apparatus forming the fuel hydrant system serving the area referred to in the Lease as 'the said Apron';

1.5.5 complying with the requirements of the pursuers and the directions of the General Manager of Glasgow Prestwick International Airport with respect to the time when the above operations may take place, the manner of working, the hours during which work may take place and otherwise;

1.5.6 restoring and making good the ground and carrying out all remedial works necessitated by their operations; and

1.5.7 carrying out all operations, restoration and remedial works under the supervision of and to the satisfaction of the pursuers

and that within 24 months from the date of decree to follow hereon, or within such other period as to the Court seems proper."

In the course of the debate the pursuers conceded that 1.5.3 and 1.5.4 had to be amended to delete references to any adjacent subject and to "thereafter maintaining".

11. In support of those items in conclusion 1 they purport to adopt two reports. One is a Schedule of Dilapidations prepared by Bell Ingram dated February 1997. The pursuers aver that the defenders are bound to carry out the repairs, redecoration, replacements, treatments and upgrading, all as specified therein. They aver that the Schedule of Dilapidations is referred to for its terms "which are held to be repeated herein brevitatis causa."
12. They also refer to a report on dilapidations survey prepared by Entec Engineering dated 20 April 1993 in which they say the defects are specified. They allege

"the defenders are bound to carry out the preparation, preparing and refurbishment of the exterior of the fuel storage tanks plant and pipework; a full internal inspection thereof and all necessary repairs and replacements resulting from such inspection; a replacement of hessian served electrical cables and Low Voltage distributions switchgear all as specified therein."

They aver that that Report on Dilapidations Survey "is referred to for its terms, which are held to be repeated herein brevitatis causa." Accordingly it is to these documents that the pursuer invites the court to have regard in determining whether a precise order of specific implement can be pronounced. These were referred to in argument for such detail as they provide.

13. Condescendence 5 begins, "Alternatively failing implement, the pursuers will suffer loss and damage as a result of the defenders' breach of their obligations". Various estimated sums are set forth thereafter. It has been noted above that Condescendence 5 is also said to be the measure of liability under Clause 2(34). No distinction is made in the pleadings between liability as between "subjects let" and the pipelines, as was ultimately argued for the pursuers.
14. The pursuers' pleas-in-law are based on implement, or failure to implement. They had tabled a general plea to the relevancy of the defences which they did not argue save insofar as concerned the defenders' averments of waiver and the defenders' fifth plea. The pursuers' fifth plea reads:

"Esto the pursuers are not entitled to implement... they are entitled to damages as alternatively concluded for."

Defenders' pleas

15. The defenders tabled a general plea to relevance and specification of the averments which sought dismissal and also tabled a plea in the following terms:

"5. Any right to require compliance with the terms of the lease as to maintenance of the fuel pipelines and the hydrant systems having been waived, the defenders should be assoilzied from the conclusions anent such maintenance of the fuel pipelines and hydrant systems."

16. It should be noted at this stage that the pursuers were specifically called upon by the defenders to aver details of the repairs which they claim ought to have been carried out on the pipelines and hydrant system and to aver in what respects they contended that the connecting pipeline is in need of repair. The pursuers did not answer those calls. The defenders also instructed and incorporated into their pleadings a schedule of dilapidations prepared by Messrs Drivers Jonas and indicate that they are prepared to carry out the works therein specified. They also aver that they have indicated that they are willing to undertake all works that are found to be necessary to clean and decontaminate the ground in the vicinity of the tank farm and the surrounding areas.

Submissions by junior counsel for the defenders

17. It was argued under the defenders' first plea that the conclusion for decree ad factum praestandum was incompetent and irrelevant in that the defenders cannot be required to carry out obligations said to arise under a lease after it has expired, under reference to Sinclair v Caithness Flagstone Co Ltd 25 R. 703. It was further argued that if any obligation under the Lease subsists the order sought by the pursuers for decree ad factum praestandum was neither competently nor relevantly framed. The Lease properly construed does not provide a basis for the decree sought. If there are obligations, and these could be enforced, the averments are irrelevant and fundamentally lack specification. If the pursuers are not entitled to implement, their alternative conclusion must also fail.
18. Properly construed the obligation in 2(8) is to keep the subjects in good and substantial repair "during the said term". In 2(9) the obligation is imposed in every fifth year of the term and also during the last year thereof and in 2(10) painting is to be done every seventh year of the term and in the last year thereof. The importance attached in the Lease to the term is further seen in 2(15). In Clause 2, (33) and (34) envisage damages rather than specific implement.
19. In regard to specification the two reports produced were inadequate for that purpose since they do not after the ish if they ever did before it afford proper specification of the respects in which it was sought to be argued that the defenders have failed in their obligations. Under reference to The Royal Bank of Scotland v Holmes 1999 SLT 563 at 568 and 570G incorporation of these reports is not appropriate. In any event, these reports are merely lists of various matters. They give no notice of what it is that is required to be done in respect of which, if any, failure. In particular, the Entec report (6/4) is, in the main, mere assumption. So, for example, one finds therein:

"in the meantime we have to assume that repairs will be necessary, to some degree or another, in all tanks, arising from another inspection were it to be carried out".

That report also suggested that certain cables had reached the limits of their life expectancy under good practice and again stated:

"in the absence of the opportunity to thoroughly test the installation it is considered that it is essential to be provided the opportunity to examine the insurer's report to ascertain whether, as anticipated, the test results will validate our considered opinions regarding the life expectancy of those items."

Again,

"the extent of contaminated ground is not sufficiently known to enable definitive cost estimates."

They provide an estimated cost for replacing the existing hydrant system at the airport and an appendix of various estimated costs. These are not such reports as would form a substitute for proper pleading and fall well within the caution expressed by Lord Macfadyen in Royal Bank of Scotland v Holmes.

20. "Upgrading" in conclusion 1.5.1 and 1.5.2, is specifically excluded by Clause 2(15). There is no obligation to replace a fuel hydrant system. The case is irrelevant insofar as it deals with anything other than ordinary repairs. There are no averments that the defects arise from want of ordinary repairs and the clear language that would be required if it was claimed that there was an obligation to renew or to deal with extraordinary repairs is absent. In support of those contentions counsel referred to Napier v Ferrier 9 D. 1354; Turner's Trustees v Steele 2 F. 363; Sharp v Thomson 1930 S.C. 1092; McCall's Entertainments (Ayr) Ltd v South Ayrshire Council (No.2) 1998 S.L.T. 1421; Lowe v Quale Munro Ltd 1997 S.C. 346 and to the following English authorities: Lister v Lane & Nesham [1893] 2 QB 212; Lurcott v Wakely & Wheeler [1911] 1 KB 905; Collins v Flynn [1963] 2 A.E.R. 1068 and Brew Bros Ltd v Snax (Ross) Ltd [1971] 1 Q.B. 612.
21. In particular, in the present case it was argued that there were no relevant averments that the hydrant system was not kept in good order or repair. The pursuers accept that they do not use the system and would require to have clear averments about any failure to repair. It is not known in what respect it is contended that repair is required; the defenders' calls are still unanswered. There was no specification in relation to the decontamination complaint, the only reference to what may be required or where it is required in the Entec report is "an unknown extent". In regard to 1.5.1 it is not clear anywhere in the pleading what "treatments" are specified nor in 1.5.2 is it said what refurbishing is requested. This failure to give proper and full notice falls short of the requisite degree of precision required for an order to carry out operation to be pronounced by the court. If there are no relevant averments of failure in repair obligations then the claim for damages fails also.

Submissions of junior counsel for the pursuers

22. The pursuers contended for a proof before answer. There was no plea tabled as to the competency of the conclusion sought. Sinclair v Caithness Flagstone requires to be read along with A & J Faill v Wilson 36 S.L.R. 941 which indicated that specific implement was not lost by mere termination of the lease. That case was followed and Sinclair v Caithness Flagstone Co Ltd distinguished by Lord Allanbridge in an unreported case only referred to but not reported, in the Journal of the Law Society of Scotland 1984 p.475. Counsel had been unable to locate that opinion, but in the course of the debate it was located by Miss Crawford's devil and provided to the court. Lord Allanbridge's decision in Coventry v British Gas Corporation 15 August 1984 drew a distinction between working and terminal conditions of a lease. The present case deals with terminal conditions and it is a "redding up" provision which is in issue here. The pursuers' contention was that the conclusion made it clear what the pursuers sought to have the defenders do. Counsel accepted that it was necessary to see what was required under the separate items, and it might well be, he said, that after proof the court might find that not all of these were established to require works. The form of any decree can be modified to take account of anything which is not found appropriate after proof, as happened in Munro v Liquidator of Balnagowan Estates Company 1949 SC 49. In the case before the court, extraordinary repairs are not required to be carried out and none are sought. What is sought falls within the category of ordinary repairs in terms of the Lease. The court has not been asked to exclude any items from probation at debate, and there should be sufficient to entitle the pursuers to a proof before answer.
23. Having regard to the defenders' averments about waiver, there are no sufficient or relevant averments which come up to the test set out in James Howden v Taylor Woodrow 1998 S.C. 853 (which followed the speech of Lord Fraser in Armia Ltd v Deajan Developments Ltd 1979 SC (HL) 56) to suggest that the pursuers had waived any right to demand specific implement. The defenders' plea should be repelled at this stage.

Position of Third Parties

24. The pursuers have no case against the third parties and did not seek to address any argument involving them. Counsel for the third parties, in the first instance, adopted the argument presented by defenders' junior counsel and later that presented by the defenders' senior counsel, while adding that when regard was had to the obligation in issue in A & J Faill v Wilson the dicta in Faill was not such as to cast any doubt on Sinclair. The obligation in the present case was not a redding up situation. He further observed that the factual situation in Munro v Balnagowan was simple and straightforward. It was only concerned with how to deal with one specific question, how to obtain possession of specific timber.

Submissions by senior counsel for the defenders

25. The defenders' plea of waiver cannot be said at this stage necessarily to fail. It is ultimately a question of fact.
26. The pursuers' case is one founding on continuing obligations and as a result of Sinclair these cannot be invoked after the ish. The reports from Entec and Bell Ingram deal with pre-ish situations and those reports contain no proper factual averments about the situation at the ish or the remedies required then or indeed at any time. The remarks in A & J Faill v Wilson were obiter and do not detract in any way from what was said in Sinclair. In Faill the Lord President drew a distinction between an action to enforce fulfilment of a redding up clause with an action ad factum praestandum. The clause in Faill to which the Lord President averred which might have been the basis for an action for enforcement, was an obligation to flit and remove and to leave the workings in a clear and upredd state and the ground free of heaps of rubbish and stagnant water. That obligation had nothing whatsoever to do with obligations to maintain by way of paint or repair at regular intervals throughout the currency of the Lease. Lord Allanbridge misunderstood what was decided in Sinclair and in any event his view was entirely distinguishable both from Sinclair and the present situation. In Sinclair what was sought, after the expiry of the Lease, was a number of matters which should have been dealt with during the currency of the Lease, i.e. "to maintain during the currency of the Lease and to leave at the expiry thereof in good heritable condition, the whole buildings and enclosures as well as to clear debris and the like occasioned by the workings." It was these matters which Lord Kinnear, who gave the leading judgment, held to be incompetently sought to be made part of an action ad factum praestandum. Lord Allanbridge's case was one in which there was a specific obligation to do something at the expiry, not a claim that defective working throughout the Lease should be remedied at the expiry. In any event, Clause 2(33) does not oblige the defenders to re-enter possession to carry out such repairs as described in Conclusion 1. It is for the pursuer to propose for the court's consideration a competent order which the court case pronounce and have enforced. It is not appropriate to have a proof before answer to see what kind of order the court could grant. There is nothing in the conclusion to indicate clearly what it is that the defenders are being asked to do and the pursuers do not aver that they have carried out any investigations, let alone any detailed investigations at the ish of the factual situation.
27. The Lease itself provides that matters have to be kept in repair and there is no obligation to do anything other than keep in repair, no obligation to renew, replace or refurbish. 2(15) might, if the procedure therein was followed, deal with some matter which required to be done, but that is not relevantly averred in the present case. Even assuming that the reports averred are properly incorporated, when looking at them they do not supply sufficient, or even relevant, averments to entitle the pursuers to decree. There is and never was any obligation to upgrade. The inspections the Entec report envisages are not part of the defenders' obligations in terms of the Lease and an order to inspect to ascertain what is in disrepair, would be to invert the onus. It is for the pursuer to establish that disrepair exists. Nowhere is there adequate averment to estimate any area, extent, nor what works or remedial works are proposed as necessary. Nowhere did the tenant accept the hydrants as being in good order and repair and total renewal of the type sought in this case would require to be expressly provided for.

Submissions by senior counsel for pursuers

28. On a proper construction of the Lease with which the court is concerned, the pipelines are not part of the subjects let. There is a separate obligation to operate fuel lines and the lessee has to obtemper those obligations. The Lease anticipated not only repair but even renewal and rebuilding and this is to be done all to the satisfaction of the landlord by Schedule 1(D). The standard has been set by the parties. The duties crystallised at the ish, and in terms of 2(33) and (34) the lessee is obliged to yield up the subjects let, the fuel lines and the connecting pipeline, including all fixed plant and fixtures. That indicates the separation between the subjects let and the fuel pipelines which is carried forward into (34) which refers to an estimate of any sum or sums required to put the subjects hereby let or part thereof into good order and repair and that valuation is stated to be recoverable as liquidated damages. The proviso that payment of the amount of that estimate and valuation should relieve the lessee of any obligation under the preceding sub-clause to carry out the items of repair in respect of which payment is made, indicates that the obligation in (33) remained extant unless and until the liquidated damages were paid.
29. Specific implement is a primary remedy in Scots law, not an equitable remedy and the obligations in the lease may be both constituted and enforced at the ish as a redding up process. 2(33) provides for the condition to be achieved at the ish. See Stewart v Kennedy 17 R. (H.L.) 1 Highland and Universal Properties Ltd v Safeway Properties Ltd 2000 SC 297 for dicta that a cogent reason must exist for a court to refuse specific implement.
30. The pursuers relevantly aver that the property was not left in the condition envisaged in 2(33) and seek a primary remedy to have it so rendered to them. It would not be inconvenient and unjust nor cause undue hardship to make an order for specific implement.

Decision on availability of specific implement

31. Sinclair v Caithness Flagstone is, and must remain, a significant decision in relation to the obligations of a lessee after he has left the premises and the ish has occurred. Senior counsel for the pursuers stated that he was not contending it should be overturned. While no doubt each contract of lease and its terms must be construed individually when questions arise, it would be incorrect to attempt to derive from Faill or from Coventry v British Gas any conclusion that Sinclair is limited in its application. Lord Kinnear's opening paragraph could hardly be clearer when read with the precise terms of the instant Lease in mind. That Lease was concerned with obligations about the way in which the Lease was to be operated throughout its currency and when the Lease ended those obligations could no longer be enforced by specific implement but could provide a remedy in damages. In Sinclair the averments were such as to provide not even that latter remedy.
32. The situation which Lord Allanbridge considered in Coventry was one in which there was a specific provision that at expiry works had to be done to restore the ground to its original condition. That was an independent provision. It depended not on the terms of the working of the lease but on a particular contractual provision. That obligation could not arise before the ish and in terms of the Lease then in question it would appear that the lessee was entitled to operate on and in the land until the day of his departure but then he had an obligation to restore the land. Lord Allanbridge, after be it noted requiring the pursuers to specify with some particularity what it was they sought that the defenders be ordered to do, found no difficulty in holding that specific implement was an appropriate remedy. It does not seem extraordinary that if the defenders in that case were obliged to restore the ground at the expiry of the Lease that they were ordained to do so.
33. It also appears from Faill that a distinction is drawn between obligations which persist throughout the currency of the Lease and the normal clause on departure about leaving the premises in tenantable condition. It is not in my view straining the construction of the Lease with which the case of Faill was concerned to see that the sixth clause principally referred to was one which obliged the lessee to leave and the question of whether or not he could be ordained to come back and put the premises in tenantable condition, as opposed to being required to pay damages was not fully argued. In Faill the Lord President drew a distinction between an action to enforce fulfilment of the sixth clause of the Lease, which prescribed the final duties of an outgoing tenant, and an action ad factum praestandum founded upon the duties of the tenant during the whole currency of the Lease. Those can be made the subject of such an action when the Lease is current. There is nothing in Faill v Wilson in my view which in any way conflicts with, or limits, or innovates upon, the decision of the court in Sinclair. The court in Faill v Wilson was substantially the same as that in Sinclair. Sinclair was referred to in argument in Faill to vouch the proposition that the conclusion ad factum praestandum was incompetent and, it seems to me, the court in Faill agreed with that argument.
34. Although in neither case was Stewart v Kennedy referred to I note that Stewart was decided in 1890, Sinclair in 1898 and Faill in 1899, so the court would have been well aware of the primacy said to be accorded to the remedy of specific implement in Scots law. Nonetheless, in both Sinclair and Faill they held that it was inappropriate. Indeed, there are dicta to the effect that what was requested amounted in law to an impossibility.
35. In the present case the pursuers sought to construe the contract as applying to two matters, subjects let and pipelines. I do not think that there is any substance in such a distinction. The subjects let comprise an area of land with the fittings and fixtures thereon and therein. In my opinion, the definition of the subjects let in the Lease is sufficient to and does encompass buildings, pipelines, and storage tanks fixed thereon. The Lease applies to all these items and the rent which the pursuers were to obtain for the pipeline operation was not described as a separate contractual payment in the Lease, but as "additional rent". Accordingly, in my view, the subjects let comprise all of the heritable property, the fittings, the fixtures and erections thereon all as described in the Lease. Accordingly Clause 2(32) and (33) do not require to have to be construed so as to separate out these elements. Nor do those clauses provide any basis for specification, then they provide for what is to be quickly yielded up. Other sub-clauses, 9 and 10, provide for activity in the last year of the Lease, sub-clause 8 for continuing repairs. No clause provider, as in Coventry, for anything to be done at the ish.
36. The parties would appear by 2(34) to have envisaged monetary payment and not continuing specific obligations but, no doubt, the defenders could deal with some matters themselves as opposed to paying for others to do them.
37. I hold that the conclusion ad factum praestandum is irrelevant in the circumstances of the present case, not only on the wide authority of Sinclair but also because it contains the undernoted inherent difficulties and contradictions which prevent a specific order being pronounced.

The relevance of the orders sought

38. The conclusion makes no distinction between matters which were continuing defects or matters which arose at the ish. It contains no clear request for a specific order, such as Lord Allanbridge pronounced in Coventry, whereby what precisely the defenders are required to do can be expressed by the court. The averments in support of the conclusions are hopelessly vague and wide, when viewed in the context of making a requirement upon a party to do certain things. On one view, at least two of the conclusions may even be unnecessary, in that there are specific averments by the defenders of a willingness to do decontamination works and also the works set out in the schedule they produced of the dilapidations reported upon by Messrs Drivers Jonas.
39. I agree entirely with the submissions by counsel for the defenders that conclusion 1 provides no basis for a specific order and that is made particularly pointed by the utilisation in averment of two reports, one of which pre-dates the ish by seven years. While no doubt reports can be incorporated in pleadings, the corollary of that is when such reports are said to form part of the pleadings they can be examined in the same way as if they had been actually reproduced in the Closed Record in extenso. When the Entec report in particular is thus examined, it is manifest that there is nothing there which provides any specific basis for a finding of what is in disrepair, or of what requires to be done. The matters which are enumerated in that report do in many instances go far beyond the terms of the Lease. There is no indication in the Entec report that the authors even considered the terms of the Lease when compiling it. There is no basis for any duty to inspect.
40. It is for the pursuers to set out in clear terms what precise order they seek. They have not done so and the case is irrelevant so far as concerns implement.

Damages

41. Junior counsel for the defender boldly stated that if the averments in relation to the works required in conclusion 1 were not relevant, then the alternative conclusion for damages must also fail. While I have considerable sympathy with that view and while I consider that the pleadings as they stand will not provide a particularly happy compilation of what it is that the court will require to look at, there is, in my opinion, in the averments of failure to repair or maintain and fulfil matters which were incumbent on the defenders throughout the course of the Lease, sufficient to entitle the pursuers to enquiry on at least some of the matters averred. I was not asked to exclude any item from probation in relation to damages. Accordingly all matters will go to proof before answer.
42. This view was arrived at with some hesitation since the pleadings are not in good order. I have earlier referred to the situation of the action having been raised prior to the expiry of the Lease and the inadequate amendment to take the fact of expiry into account. While that is unfortunate, in relation to a claim for damages for failure to comply with the continuing obligations under the Lease it is not fatal, as it is in relation to the conclusion ad factum praestandum.

Decision

43. I shall accordingly sustain the defenders' first plea-in-law to the extent of dismissing the claim based on specific implement by repelling the pursuers' first, second and fourth pleas-in-law and quoad ultra allowing a proof before answer.