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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Church Commissioners for England v Abbey National [1994] ScotCS CSIH_2 (15 July 1994)
URL: http://www.bailii.org/scot/cases/ScotCS/1994/1994_SC_651.html
Cite as: 1994 SC 651, [1994] ScotCS CSIH_2, 1994 SLT 959, 1994 SCLR 867

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JISCBAILII_CASE_SCOT_CONTRACT

15 July 1994

CHURCH COMMISSIONERS FOR ENGLAND
v.
ABBEY NATIONAL PLC

The cause called before a court of five judges, comprising the Lord President (Hope), Lord Allanbridge, Lord McCluskey, Lord Morison and Lord Clyde, for a hearing.

At advising, on 15th July 1994—

LORD PRESIDENT (Hope)—This is a reclaiming motion against an interlocutor of the Lord Ordinary by which he declined to pronounce interim interdict against the defenders from failing or continuing in their failure to comply with their obligations under a lease or otherwise breaching or continuing to breach their obligations under it. There was no dispute between the parties that the defenders were in breach of their obligations in terms of the lease. But the Lord Ordinary observed that, as the act constituting the breach had already in substance been carried out, the effect of the interdict would be to require the defenders to reverse the steps which they had already taken in breach of their contract. He held himself bound by Grosvenor Developments (Scotland) plc v. Argyll Stores Ltd. 1987 S.L.T. 738 to refuse interim interdict on the ground that the order which was sought was incompetent.

The pursuers have now reclaimed against the Lord Ordinary's interlocutor on three grounds. The first is that the Lord Ordinary misdirected himself in holding that the ratio of the decision in the Grosvenor Developments case was such as to prevent him from pronouncing interim interdict in the terms concluded for. The second is that the Lord Ordinary misdirected himself in omitting to take account of the provisions of sec. 46 of the Court of Session Act 1988 in declining to pronounce interim interdict. The third is that, assuming that the ratio of the decision in the Grosvenor Developments case was as held by the Lord Ordinary, that case was wrongly decided to the extent that it was held therein that interim interdict is not a competent remedy to prevent a breach of contract whether threatened or continuing. Counsel for the pursuers made it clear, however, in the course of his argument that he no longer wished to contend that the Lord Ordinary was wrong to hold himself bound by Grosvenor Developments in the circumstances of this case. He directed his principal argument to the question whether that case was wrongly decided. The ground of appeal which is directed to this issue is loosely worded, in my opinion, as there is no doubt that a breach of contract which consists of doing something which the party has undertaken not to do can be restrained by interim interdict. The question, as counsel for the pursuers put it at the outset of his argument, is whether it is competent for the Court of Session to pronounce an order for interdict or interim interdict which would require positive action by the defender to comply with it.

The pursuers are the proprietors of the St Enoch Centre in Glasgow, which is a self-contained, purpose-built retail shopping centre. The centre comprises approximately 74 units, most of which are now let. In order to attract customers to the centre the pursuers regard it as essential that whenever the centre is open for business all units let in the centre are kept open for business, and the units are let on terms which require this to be done. It is the terms of the lease between the pursuers and the defenders directed to this requirement which are in issue in this case. The pursuers aver that it came to their attention on or about 13th October 1993 that the defenders had ceased to keep the subjects let to them open for business. They had erected a notice in the window to the effect that the business carried on there would be henceforth conducted at their branch in Argyle Street, Glasgow. The pursuers maintain that by their actings the defenders are in breach of their obligations under the lease, and they seek declarator in terms of the first conclusion that the defenders are bound to implement these obligations. They are (i) to occupy the subjects, (ii) to keep them open between the hours of 9.00 a.m. and 6.00 p.m. from Mondays to Saturdays excluding Christmas Day and New Year's Day, and (iii) to use them as an office for the provision by them of corporate and personal financial services and such other purposes of a building society until 24th June 2014 or until the subjects are assigned, sub-let or surrendered in terms of the lease or the lease is otherwise terminated. The pursuers also seek specific implement of these obligations in terms of the second conclusion which is as follows:

"To ordain the defenders to comply with their obligations in terms of the said lease and, in particular, (i) to occupy the said subjects; (ii) to keep the subjects open during the aforementioned hours; and (iii) to use the said subjects as aforementioned all until 24th June 2014 or (a) until the said subjects are assigned, sub-let or otherwise surrendered by the defenders in conformity with the terms of the lease or the said lease is terminated by the defenders in accordance with

the terms of cl. 5.4.3 thereof or (b) until the lease is irritated or terminated by the pursuers in conformity with the terms thereof or otherwise in accordance with law; except in the event that the said subjects have been destroyed or rendered unfit for the said use."

The conclusion for interdict is the third conclusion of the summons, and it is in these terms:

"For interdict of the defenders from failing or continuing in their failure to comply with their foregoing obligations or otherwise breaching or continuing to breach their obligations under the said lease; and for interdict ad interim."

The Lord Ordinary was informed by counsel for the defenders that it was not in dispute that the defenders were in breach of their obligations under the lease. It was said to be arguable that they were still in occupation of the subjects, in respect that the premises remain fully furnished with the furniture and equipment necessary for running a retail building society office there. But they had switched off the electricity to the machines located in the premises, the lighting had been switched off also and the shutters provided for security of the premises had been kept closed. The staff had ceased to work there and the business had been relocated to premises occupied by the defenders in Argyle Street nearby. The explanation for these actions was that the office had a poor trading record. The decision to remove staff had finally been taken after running down the complement to the smallest number compatible with maintaining any level of trading. The defenders had now formed the view that they would not re-enter the premises, and they were now actively seeking substitutional tenants either by assignation or by sub-letting. Counsel who appeared for the defenders in the reclaiming motion accepted that in these circumstances the pursuers were entitled in principle to the declarator which they sought and to an order for specific implement. But he submitted that the Lord Ordinary was right to refuse to grant interim interdict.

It is clear that the only objection which could reasonably have been taken to the granting of interim interdict in this case is that to do so would be incompetent. The pursuers have set out in their averments a sufficient reason for granting the order on the balance of convenience. Their case is that, if tenants such as the defenders were able to ignore their obligations and their units were to remain closed, customers would lose confidence in the centre and the profitability of the units would diminish. This in turn would lead to difficulties in letting other units in the centre and the pursuers' investment in the whole enterprise would be adversely affected. They claim that the loss which they would sustain as a result of loss of confidence in the centre is incapable of assessment or at least would be very difficult to quantify. The Lord Ordinary has explained in his opinion that he reached his decision wholly upon the view that it would be incompetent for him to grant interim interdict, and that he arrived at this view with regret.

The difficulty which the pursuers face on the issue of competency, however, is that they are seeking by means of interim interdict to enforce positive obligations under the lease. I shall come back later to explain what I mean by positive obligations in this context, but it is convenient to use this phrase because it was used in the Grosvenor Developments case to explain the ratio for that decision. The pursuers in that action were the owners of land which had been developed as a shopping area and the defenders were the tenants of subjects there which were occupied and used by them as a supermarket. The lease provided that the tenants were to continue to use and occupy the premises as a supermarket and to

keep them open for business during all normal business hours throughout the whole period of the lease until January 2016. The defenders gave notice to the pursuers that they intended to discontinue trading from the supermarket premises in January 1987, whereupon the pursuers raised against them an action of interdict. The crave was for interdict against the defenders "from ceasing to continue to occupy and use the supermarket premises" for the purposes which the lease described and for interim interdict. The pursuers did not seek interdict against the defenders from vacating the premises, but chose instead to frame the order which they sought by reference to the positive obligations which the defenders had undertaken to perform.

The sheriff in that case granted interim interdict, but Sheriff Principal Caplan held on appeal that the interim interdict which was sought was incompetent. The reason for his decision appears from the following passage in his opinion in 1987 S.L.T. (Sh. Ct.) 134 at p. 136E–F:

"None of the cases cited by counsel for the pursuers authorise the pronouncing of an interdict which can only be observed by positive action. In the present case the particular interdict craved has resulted in a clear double negative. The defenders are prevented from ceasing to use the premises for the purposes of retail business. This interdict could not be observed by any act of mere restraint. The defenders could only comply with the interdict by continuing to trade at the supermarket. This in my view violates the nature of interdict as hitherto established by the authorities."

The sheriff principal's decision to allow the appeal and recall the interim interdict was affirmed by the Court of Session on the ground that it was not competent to enforce a positive obligation by way of interdict. Lord Kincraig said at 1987 S.L.T., p. 740D that in his opinion it was not competent under our law to obtain an interdict which in terms compels the performance of an act:

"Interdict as the name implies is to prohibit or forbid the doing of some act. It cannot logically be applied so as to prevent inaction and thus compel action."

In his opinion the crave for interdict against the defenders from ceasing to continue to occupy the use the supermarket premises was in substance an order on the defenders to continue in occupation and in business, although it was disguised in the form of a negative prohibition against ceasing to occupy and carry on business. Lord Allanbridge also was of opinion at p. 742K that the order sought, despite its wording, was in effect to ordain the defenders to continue trading in the premises and that this was contrary to the principle that positive obligations will not be enforced by way of interdict. Lord Jauncey said at p. 744K that, apart from Magistrates of Glasgow v. Commissioners of Police of Glasgow (1839) 1 D. 460 which he regarded as highly special, no Scottish authority had been cited where a positive obligation had been directly enforced by interdict:

"Such method of enforcement does not accord with practice where the norm is specific implement, and its competency has been doubted judicially. I consider that these judicial doubts are well founded and that interdict is not a competent method of enforcing a positive obligation."

In my opinion the ratio of that decision is clearly expressed in the passages which I have quoted. No previous case was cited to us in which the point of principle was explained as clearly as it was in these opinions, but if the decision is sound it applies directly to the present case where the interdict sought is to the same effect.

Counsel for the pursuers submitted that that case was wrongly decided. He said that the breach of contract of which the pursuers complained in this action was a continuing breach. It was repeated every day when the defenders failed to open for business at 9.00 a.m. The pursuers were entitled in these circumstances to seek the equitable remedy of a specific implement, but an interim order was needed also in this case to preserve the pursuers' position until decree of specific implement was pronounced. He submitted that interim interdict was the means by which this could be achieved. In a careful view of the authorities he laid stress on the preventive and equitable nature of the remedy. He said that the effect of the interdict in Magistrates of Glasgow v. Commissioners of Police of Glasgow was to compel the performance of the commissioners' statutory duty, and he relied on that case as authority for the proposition that interim interdict is available to regulate interim possession pending an order of specific implement. He sought further support for this proposition in Deane v. Lothian Regional Council 1986 S.L.T. 22 where the effect of the interdict, he said, was to leave the local authority with no practical alternative but to keep the school open, thereby preserving the status quo. He submitted that Lord McLaren's observation in Wemyss v. Ardrossan Harbour Co. (1893) 20 R. 500 at p. 505 that the interdict asked for in that case was a negative interdict and that such an interdict had never been granted was obiter. He pointed out that in any event it was always possible to turn words round from the negative to the positive, or from the positive to the negative, and to subject them to this criticism. The only general rule was that the order sought had to be stated in negative terms. This requirement was satisfied by the terms of the third conclusion, so the pursuers had said all that was necessary for the order to be competent. Its effect would plainly be to stop the continuing breach of contract.

Counsel for the defenders resisted the suggestion that there was here a continuing breach of contract which the pursuers were entitled to prevent by means of an interim interdict. The correct approach, according to his argument, was that the defenders had taken a decision to cease to carry on business in the premises and had implemented that decision. He accepted that this was a breach of contract, but he said that the breach had occurred when the defenders had put their decision into effect. The stage at which they could be stopped from implementing the decision to close the premises had now passed. The continuing breach which the pursuers sought to interdict was the result of that decision, but since the decision had been implemented there was nothing left now which could be interdicted. He contrasted this case with Church Commissioners for England v. Nationwide Anglia Building Society 1994 S.L.T. 897, where Lord Clyde granted interdict against the defenders ad interim from vacating the unit occupied by them in the St Enoch Centre and then refused to recall the interim interdict. In that case the pursuers had become aware of the decision before it was implemented, and the interdict was expressly directed to the decision to vacate the premises. Lord Clyde said that he was not persuaded that the law was otherwise than correctly stated in the Grosvenor Developments case, that interdict requires that there should be a negative stipulation either expressed in the contract between the parties or to be taken from their contractual relationship, and that if there is only a positive step in issue a negative interdict would be incompetent. But he was not prepared to hold that an interdict against the defenders from vacating the premises was incompetent, as the pursuers were proceeding on an

underlying subsumed obligation on the defenders so to act as not to frustrate the commercial purpose of the contract. Counsel for the defenders submitted that what had been interdicted in that case was putting the decision into effect and that the case was correctly decided, as was the Grosvenor Developments case from which it was distinguishable. The fundamental point was that the interdict which was pronounced in the Nationwide Anglia case left the defenders with a choice of action as to what to do so long as they did not vacate the premises. The terms of the interdict sought in this case would leave the defenders with no choice but to implement all the obligations of the contract.

In my opinion the Grosvenor Developments case was correctly decided, and I think that the Lord Ordinary was obliged by the ratio of that decision to refuse the motion for interim interdict in this case. As Lord Jauncey pointed out at p. 744J, there is, with one exception, no Scottish case where a positive obligation has been directly enforced by interim interdict, although there are many cases in which the interdict granted has had as its practical result the performance by the defender of some positive act. The single exception in the authorities is Magistrates of Glasgow v. Commissioners of Police of Glasgow, to which I shall return in a later paragraph. The essence of interdict is that it is a preventive remedy, as was emphasised by Lord President Hope in Clark v. Stirling (1839) 1 D. 955 at pp. 998 and 1022. It prohibits action which is threatened or continuing, and it looks to the future not to the past. Its purpose is to keep matters entire, and when pronounced ad interim its purpose is to preserve the status quofor the time being. It is not the purpose of an interdict to compel the defender to restore the parties to the position which they were in previously, although that may indirectly be its effect.

In Williamson v. North British Railway Co. (1846) 9 D. 255 it was noted by Lord Medwyn at p. 274 that in the rare case where the only remedy available to a pursuer was that of specific implement, an interdict would require to be granted in the meantime so that such implement might ultimately be secured. But as I understand this observation, he saw the interim interdict as an ancillary and preventive remedy only, to preserve the position meantime pending the order of specific implement. Lord McLaren's observation in Wemyss v. Ardrossan Harbour Co. at p. 505 that to interdict the arbiter from not hearing the pursuer's witnesses was objectionable because that would be to grant a negative interdict, has often been quoted as reflecting the long-standing practice of the court. But the weight to be attached to the observation is questionable. The defenders were not called on in that case, which was decided on the ground that the court could not interfere with an interlocutory judgment by an arbiter. And the description of the substance of what was sought in that case as a negative interdict is unfortunate. Strictly speaking an interdict is always negative, as it must be expressed in prohibitory terms as an order not to do something. What Lord McLaren may have intended to say, I think, was that to interdict a defender from not doing something positive was to use a double negative. But the point of his observation is that what matters is the substance rather than the form, and the interdict will be objectionable if it amounts in substance to a direction to the party that he must do something rather than refrain from doing something.

Later cases show that narrow distinctions may have to be drawn in the application of these principles to the facts. But it is necessary first to say something about Magistrates of Glasgow v. Commissioners of Police of Glasgow, where

the commissioners were prohibited by interim interdict from acting upon resolutions, and from passing any further resolutions, so as to prevent their officers from sending their fire engines to extinguish fires in their area and from diminishing or altering the fire-fighting establishment. The terms of the interdicts which both Lord Cockburn and Lord Cuninghame pronounced appear to have been preventive in character, but the commissioners had in effect abandoned their duties under the statute to provide the establishment. Lord Meadowbank said at p. 462 that he saw nothing in the statutes authorising the commissioners to surrender the management of the fire establishment, and it is clear both from his opinion and that of Lord Medwyn at p. 463 that the purpose of the interim interdict was to compel the commissioners to perform their duties under the statute. But there was no discussion in the opinions of the nature of the interdict, nor was there any examination of any other interim remedies that might be available The only issue between the parties seems to have been whether it should be left to the magistrates to take charge of the establishment until the rights and liabilities of the parties had been determined by the declarator. As Lord Jauncey observed in the Grosvenor Developments case, the court was clearly concerned that Glasgow should not be left without a fire-fighting establishment for the time being and this no doubt influenced the decision to continue the interdict. I agree with him that the case should be regarded as a very special one in which the commissioners had not made out a prima facie case for being released from their statutory duties. In view of other remedies which are now available to enable a party to secure the performance of its statutory duty by a local authority, the decision has ceased to have any practical significance in this field. In my opinion it cannot be regarded as authority for the proposition that it is competent for a party to be ordered by means of an interdict to do something positive in implement of an obligation to do something.

The first of the later cases is Waddell v. Campbell (1898) 25 R. 456, where the complainers sought to interdict the respondent from covering with slates other than blue Scotch slates the roofs of two tenements in the course of being erected by him on ground feued to him by a feu contract. The complaint was that, in breach of the feu contract, he had been covering the roofs of these tenements with light green Westmoreland slates, which were not stipulated for in the contract. The respondent maintained that the complainers had no interest to object because the slates he was using were of better quality, but this answer was rejected as irrelevant. There is no discussion in the opinions of the terms of the interdict, and no order was sought for interim interdict. The case is of interest only because the court appears to have treated the interdict as a means of enforcing the contract. Counsel for the pursuers said that, although the interdict was in terms a prohibition against using slates other than blue Scotch slates, its effect was to require the respondent to perform his obligation to use these slates under the contract. But the terms of the interdict stopped short of requiring the respondent to slate the roofs of the tenements with Scotch slates. The respondent would not have had to do anything in order to comply with the interdict except to stop using any other kind of slate. He would not have been in breach of the interdict if he did not slate the roofs with Scotch slates, which he could only have been compelled to do by a decree of specific implement. The interdict which was sought in that case may be regarded as a good example of the use of interdict as a preventive remedy. The purpose of the interdict was to ensure that

the respondent remained able to perform his obligations under the contract, by compelling him to refrain from action which was inconsistent with the performance of these obligations.

In Deane v. Lothian Regional Council the Secretary of State's decision to consent to the closure of a Roman Catholic school was challenged on various grounds, and interim interdict was granted against the taking of steps by the local authority to close the school. In Keeney v. Strathclyde Regional Council 1986 S.L.T. 490 a motion for interim interdict against the local authority from transporting the petitioner's children by bus from their school in Bellshill to temporary classrooms in Hamilton during renovation works was refused. Although he based his decision on other grounds, Lord Ross took the opportunity to observe at p. 492K–L that it was clear that what the petitioner was endeavouring to do was to compel the local authority to provide educational facilities for his children in Bellshill instead of in the temporary premises in Hamilton. He said that he was endeavouring to enforce against the respondents a positive obligation, and in his opinion it was probably not competent to seek to enforce a positive obligation in this way by interdict. Counsel for the pursuers said that the same comment might have been made of the interdict which was granted in Deane, as the practical effect of it was that the local authority would require to continue to provide education in the Roman Catholic school which was to remain open. But this point was not discussed in Deane, and the important point so far as that case was concerned was that the decision to close the school had not yet been taken. The interdict was restricted to what was needed to prevent effect being given to that decision, which was also suspended ad interim. It can be seen, therefore, to have been essentially preventive in character, as the respondents were being ordained to refrain from action inconsistent with their statutory duty.

In The Edinburgh Property Management Association, Petrs. Outer House, 5th November 1987, unreported, Lord Clyde, following the Grosvenor Developments case, declined to grant interim interdict against the respondents from putting into effect a decision to cease making direct payment of sums representing housing benefit to landlords. He reached the decision that interim interdict was inappropriate primarily because of doubts about the validity of the case made by the petitioners and on the balance of convenience. But he noted that what the petitioners were seeking by means of the interdict was to secure continued performance of a positive act and that this course had been held to be incompetent. The distinction between his decision in that case and Deane v. Lothian Regional Council is a fine one, but the two cases are distinguishable in my opinion. The effect of a decision to close premises which a party is under a duty to keep open, or to perform some other single act the effect of which may be irreparable, may be prevented or postponed by ordering the party not to do what he has decided to do. For that purpose an interdict which anticipates the implement of the decision and is preventive in character will be competent. Lord Clyde's decision in Church Commissioners for England v. Nationwide Anglia Building Society provides a further illustration of this point. But it will not be competent by means of an interdict to procure directly specific performance of the obligations.

For these reasons I am of opinion that we should approve of the ratio in the Grosvenor Developments case, on the ground that it is not competent to enforce directly a positive obligation by means of an interdict. It may be difficult to

achieve absolute precision of expression in this context. As the criterion is one of substance not of form, the competency of the interdict cannot be determined merely by the use of language which prohibits or forbids something. The obligation which is sought to be enforced by this means must be examined also, and the following points may help to explain the distinction in this respect between what in substance is positive and what is negative. A positive obligation is an obligation which in terms requires the party to act or to do something to perform the obligation, not to refrain from doing something. If enforcement is needed, the appropriate order is one for specific implement. A negative obligation is an obligation to refrain from doing something. It may be enforceable directly by interdict, as the preventive order of interdict is all that is needed to compel the party to refrain from doing that which he has undertaken not to do. An interdict may also be used to prevent the party from acting in a manner which is inconsistent with a positive obligation. An interdict which is pronounced for this purpose is not objectionable merely because it may have the effect indirectly of enforcing the obligation. Its function is nevertheless a negative one and thus appropriate for interdict, namely to prevent taking of action in breach of the obligation, not to compel performance of it directly by order of the court.

That is sufficient for the disposal of this reclaiming motion, as it is clear that the interdict which is sought in this case would leave the defenders with no alternative in order to comply with it but to fulfil their obligations under the lease. As the Lord Ordinary has pointed out, the defenders would require to reverse the steps which they have already taken in order to meet the terms of the interdict. This is because the third conclusion matches precisely those of the second conclusion, which seeks an order for specific implement. The obligations set out in the second conclusion are precisely the same as those which are the subject of the proposed interdict. In my opinion an interdict in these terms would be incompetent.

It is not satisfactory that a party who seeks an order for specific implement should be unable to obtain relief by means of an appropriate interim order if this is needed to regulate the position in the meantime until the order for specific implement can be obtained. It would be unfortunate if a party who gave notice of his intention to vacate premises would be in a worse position as regards an interim order than a party who closed the premises without giving any previous intimation of doing so. In either case the action of closure may result in loss to the other party which is incapable of being quantified. In the one case that loss could be prevented by means of an interim interdict, which would have the effect of preserving the position until an order for specific implement could be granted. In the other case, the decision to vacate having been implemented, irreparable damage may follow unless there is some other interim remedy.

No such other remedy is sought in this case, although counsel for the pursuers touched on the point in the course of his argument. His submission to the Lord Ordinary was that sec. 46 of the Court of Session Act 1988 had the effect of enabling the court to provide a remedy and that it was appropriate to do this by means of an interim interdict. Section 46 is in these terms: [his Lordship quoted its terms and continued:]

This provision superseded sec. 89 of the Court of Session Act 1868 which provided in similar terms for the granting of specific relief in such circumstances. That section was considered by Lord Cullen in Maersk Co. Ltd. v. National

Union of Seamen 1988 S.L.T. 828 and Stirling Shipping Co. v. National Union of Seamen 1988 S.L.T. 832. The petitioners in these cases moved for an order under sec. 89 to ordain the respondents to cancel an instruction allegedly issued to crews of the petitioners' vessels not to carry out work on them. Lord Cullen noted that no decision had been cited to him as to the use of sec. 89 at an interim stage or for that matter at the final stage of the proceedings. He took the view, however, that sec. 89 contained no indication that it was limited to the final stage and that it would lose much of its sense if it could be used only at that stage. He decided not to make the order as he was faced in that case with an explicit contradiction between the allegation of the petitioners and the response of the respondents, and he did not feel that it would be safe to proceed on the basis that the allegation was true.

I think that the problem which Lord Cullen encountered in these cases illustrates the difficulty of granting an order to reinstate the petitioner in his possessory right or granting specific release against the illegal act complained of before the petitioners' rights had been fully ascertained. The only case which is noted in Maclaren's Bill Chamber Practice at p. 74 under reference to sec. 89 is Clippens Oil Co. Ltd. v. Edinburgh and District Water Trs. (1897) 25 R. 370. The order was sought and granted in that case at the final stage after the operations in question had been found to be illegal: see Lord Adam at p. 382. But this issue seems to me to bear on the merits of the question whether the court should or should not grant such an order ad interim, not on its competency. Section 47(2) of the 1988 Act now provides: [his Lordship quoted its terms and continued:]

That provision when read with sec. 46 of the Act seems to me to put the competency of granting such an order at the interim stage beyond question. If such an order is to be sought, however, it must be specifically asked for under reference to sec. 46 of the 1988 Act. This is because it is a separate and distinct order from that of interim interdict. As no order under sec. 46 has been asked for in this case, I think that it would not be appropriate for us to do more than note that it would have been open to the Lord Ordinary to grant such an order if asked for, if he was satisfied that in all the circumstances to do so was appropriate. The importance of the point is that the objection to the granting of interim interdict on the grounds of competency does not leave the pursuers without any other possible remedy to regulate matters ad interim pending the granting of an order for specific implement.

I would, for these reasons, refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary.

LORD ALLANBRIDGE —I have had the advantage of reading the opinions of your Lordship in the chair and Lord McCluskey and Lord Clyde. Your Lordships have decided not to overrule the ratio of the decision in Grosvenor Developments (Scotland) plc v. Argyll Stores Ltd. 1987 S.L.T. 738 for the reasons expressed in your respective opinions. As I was one of the judges in that case I am content to affirm what I said in my opinion in that case and have nothing further to add. I, too, would refuse the reclaiming motion in this case.

LORD MCCLUSKEY —The question of principle which arises for consideration in this case may, I think, be expressed as follows: can the Court of Session pronounce an interdict if in order to comply with the interdict the person against whom it is

pronounced must take some positive action? The ratio of Grosvenor Developments (Scotland) plc v. Argyll Stores Ltd. 1987 S.L.T. 738 appears to me to be that it is never competent to pronounce such an interdict, being an order of such a character that, as Lord Jauncey expressed it at p. 744H, "the order requires him to take … action under pain of possible imprisonment". Lord Kincraig, at p. 740C, and Lord Allanbridge at pp. 742I and 743E, expressed themselves to the same effect; the sheriff principal had also reached the same conclusion. Accordingly we could not decide the issue of principle in favour of the pursuers and reclaimers without overruling Grosvenor Developments.

Grosvenor Developments was a case which arose out of circumstances very similar in essentials to those obtaining in the present case. In one respect the circumstances in Grosvenor Developments were more favourable for the landlords than those averred in the present case, in that the interdict there was sought on 22nd January 1987, two days before the tenants were to cease trading in the leased subjects, and therefore at a time when matters were entire because no actual breach of the contract had occurred. The interdict sought on 22nd January was directed against what was then only an apprehended wrong; for the tenants having told the landlords of their intention to cease trading had thereby indicated their intention to commit a breach of contract in the future, the intention not to be put into effect until 24th January 1987. In the present case the tenants ceased to occupy the premises for their normal trading purposes and it was only thereafter that the landlords were able to seek some remedy in court. In each case, however, the avowed purpose of the interdict sought was to compel the tenants to continue in occupation of the premises for the remainder of the period of the lease. In Grosvenor Developments the tenants were to be interdicted "from ceasing to continue to occupy and use the … premises … for the purposes of … trading". In the present case the pursuers and reclaimers seek to interdict the defenders and respondents "from failing or continuing in their failure to comply with their … obligations … (i) to occupy the said subjects; (ii) to keep the subjects open during the [specified] hours; and (iii) to use the said subjects as ‘an Abbey National office for the ordinary purposes of a building society public branch office’" (this wording conflates the relevant parts of the conclusions).

Despite the fact that the tenants in Grosvenor Developments were seeking interdict before any wrong had been committed the court reached the clear view that the tenants would not be able to comply with the interdict simply by refraining from action; the only way that the tenants there could have complied with the interdict sought would have been to take the positive action of going in to trade from the premises on and after 24th January 1987. That was not something that the court considered it could compel by means of an interdict. The court further concluded that it would make no difference if by some "mere juggling with words" the form of the order became such that superficially the defenders were being ordered to refrain from acting when in substance they were being compelled to act.

Each of the members of the court in Grosvenor Developments examined the authorities and found none which could be regarded as contradicting the view that the essence of an order for interdict obtainable by one private citizen against another was that it prohibited some apprehended wrongful acting by that other. The only case in which the court had previously appeared to pronounce an interdict when the necessary effect of so pronouncing it was to

compel the defenders to act in a particular way was Magistrates of Glasgow v. Commissioners of Police of Glasgow (1839) 1 D. 460. That, however, was a highly special case and I agree with the comments upon it by Lord Kincraig at p. 741D and by Lord Jauncey at p. 744G in Grosvenor Developments. The actual interdict pronounced ad interim in that case was, in terms of the first part of the prayer, to interdict the commissioners "from acting upon, or carrying into effect the … resolutions" whereby the commissioners had resolved to abandon the management of the first establishment. The defenders by those resolutions had purported to divest themselves of any statutory duty to run the fire establishment. That interdict was pronounced before answers were lodged. The second interdict, pronounced by the Lord Ordinary (Cuninghame) was in broader terms but also interdicted the defenders from acting upon the resolutions. As what had been resolved was to desist from acting, the necessary effect of prohibiting the defenders from acting upon the resolutions was to compel them to do that which they had resolved to desist from doing. However, it is important to note that the orders pronounced were interim orders; and they were pronounced and continued in order to preserve the public interest until the underlying question as to the true character of the obligations said to be imposed by statute upon the defenders was determined. The question of the competency of pronouncing an order which would compel the defenders to act does not appear to have been discussed and was not expressly decided. I do not consider therefore that this case provides authority for the view that one private citizen can obtain from the court an order in the form of an interdict compelling another private citizen to take positive action to fulfil a positive obligation under a private contract. It may be that the case is an illustration of a practice that pendente lite and while there is an issue to try, whether of fact or of law, the balance of convenience may become the most important factor.

None of the other cases cited to the court in Grosvenor Developments or to this court provides authority for the view that the ratio in Grosvenor Developments is wrong. In Church Commissioners for England v. Nationwide Anglia Building Society 1994 S.L.T. 897, where Lord Clyde granted interim interdict to restrain the defenders from vacating the premises, he did not do so upon the basis that it was shown to have been competent to grant an interdict to enforce a positive obligation. As I read the opinion, all that he decided in that regard was that the question as to whether in the circumstances of the particular contract the obligation sought to be enforced was a positive or a negative obligation was a question that could eventually be resolved either way. In short, there was an issue to try. He could not immediately hold that the action was incompetent insofar as the claim for interdict was concerned. He therefore felt able to pronounce an interim interdict to prevent the defenders from doing what they had threatened to do, namely to vacate the premises in breach of a clear contractual obligation not to do so. It is perhaps worthy of note that even in Grosvenor Developments the sheriff principal, despite his clear view on competency, decided, pending the application to the Court of Session, to continue the interim interdict which the sheriff had pronounced: cf. 1987 S.L.T. (Sh. Ct.), p. 136L. So Lord Clyde's decision in the Nationwide Anglia case is merely an example of the court's preserving the status quo by making an appropriate interim order pending resolution of the question as to whether or not the order sought was one that could properly be granted.

I do not find any case other than Grosvenor Developments which contains the same ratio as to the competency of the type of order sought here. We were not invited, as I understood the debate, to do other than decide on the competency of pronouncing such an interdict; no attempt was made to justify interim interdict except upon the same legal basis as a permanent interdict would be justified. But it appears to me that the weight of authority points to a real difference in character between orders of the court which may be complied with by doing nothing at all and orders which cannot be complied with except by doing something, by taking some deliberate, positive action. Having said that, however, I recognise that in practice there may well be grey areas, the philosophical contours of which were surveyed by Lord Prosser in Hugh Blackwood (Farms) Ltd. v. Motherwell District Council Outer House, 28th July 1988, unreported. Thus it may be competent to grant an order for interdict against "remaining on" premises unlawfully—as was done initially in Plessey Co. plc v. Wilson 1983 S.L.T. 139—even although the only way for the trespassers to comply with the order would be to take the deliberate and positive step of physically leaving the premises. The justification in such a case may be that when a person remains in premises his remaining itself involves deliberate, positive actings that the court can prohibit. But when a case comes before the court and appears to fall within a grey area such as this each application for interdict must be considered very carefully in order to see what its true substance is. If what is sought to be prohibited is some positive acting then interdict may be pronounced even if the only way to discontinue the prohibited acting is to do something positive. I am not persuaded that the true test of competency is simply to look to see if the only method of complying with the order is for the person interdicted to desist from doing something, to freeze, to sit on his hands. The nature of the acting to be stopped may be such that some positive acting may be necessary to bring it to an end. So if my neighbour has placed his garden sprinkler immediately adjacent to our common boundary, attached the sprinkler to the main tap and switched it on so that my lawn is drenched continuously and flooded, I believe I would be able to persuade the court to grant an order to prevent my neighbour from continuing to spray my garden with unwanted water even although the only way to comply with that order would be to switch off the water supply, or to move the sprinkler, or to build a physical barrier or something of that kind. The fact that some positive action would almost inevitably be enjoined would not, I apprehend, be a barrier to obtaining a suitably worded interdict. However, it might well be different if the court were invited to specify in the interdict itself precisely what was to be done, such as ordering the neighbour to switch off the water supply.

I do not consider that in this case we are in a grey area of this kind. The substance of the order sought is that the respondents, in order to comply with it, would have to do a number of positive things all to ensure that their normal trading activities were recommenced in the premises. We are being invited to pronounce a decree ad factum praestandum in the form of an interdict.

Of course it would be very unfortunate and open to serious question if the law afforded no interim enforcement remedy even when one party was deliberately and avowedly in breach of a positive obligation in a contract; and I should have been slow to conclude that the law provided no remedy for an obvious injustice of this kind, even on an interim basis. But it is not in doubt that the law does afford such a remedy in suitable circumstances in the form of a decree ad

factum prasetandum. And, at the interim stage, sec. 47(2) of the Court of Session Act 1988 appears to me to provide the possibility of an interim remedy at the court's discretion. Rule of court 89B, with its provisions of rapid inquiry into matters of fact (rule 89B(5)(b)) might also provide a swift solution in an appropriate case: cf.Rankin v. Reid 1987 S.L.T. 352.

In these circumstances, I consider that the pursuers and reclaimers in seeking interdict are not seeking the appropriate remedy. They are seeking a prohibitory order when what they really want to achieve is that the respondents should be compelled to return to and trade from their premises in accordance with their contractual obligations. In the light of the debate I see no reason to conclude that Grosvenor Developments was wrongly decided. I agree that the reclaiming motion should be refused.

LORD MORISON —In my opinion the only issue which arises in this reclaiming motion is whether the order which is sought by the reclaimers is consistent with the prohibitive or preventive nature of interdict which constitutes its essential character. That feature excludes a grant of interdict in cases where the action complained of has already been accomplished, and also in cases where what is anticipated consists not of any activity but of a failure to do something or inactivity. It is only the doing of something which can be prevented by the court and which, if that thing is done in breach of the order, can be punished. In determining whether interdict is excluded on these grounds it is in my view futile for the court to attempt to categorise the obligation, contractual or otherwise, in respect of which the order is sought as being "positive" or "negative". Many obligations can reasonably be expressed either in a positive way or in a negative way. For example, the obligation to keep open a right of way, which is frequently the subject of interdict proceedings, can either be expressed positively in these terms, or negatively as an obligation not to block it. But in my view any such classification is irrelevant. What the court must find, if interdict is to be pronounced, is something which is proposed to be done or some anticipated continuation of activity which is in breach of an obligation, whether or not that obligation arises from a contract, and whether or not it can be described as positive or negative. The substance of the order, in whatever way it may be expressed, must be to prohibit that activity.

I am quite unable to discern from the reclaimers' pleadings what activity on the part of the respondents they are seeking to prevent. They say that they seek interdict against the respondents "failing or continuing in their failure" to comply with certain obligations under the lease, notably the obligation to occupy and use the subjects as a building society office, to which other obligations referred to by the reclaimers appear to me to be ancillary. But it is anticipated activity in breach of contract which the court can prevent by interdict, not the mere fact that a breach is continuing to occur, which in some cases (although not in this) may be inconsequential. In my opinion it is clear that the reclaimers are simply attempting by way of interdict to secure what they also seek to achieve by way of an order for specific implement, i.e. enforcement of the same contractual conditions which appear in both conclusions. It was explained to us that the continuing loss sustained by the reclaimers as a result of the respondents' absence from the premises is at least difficult to quantify, and it is understandable that they wish to secure interim relief from the continuing effect of the respondents'

admitted breach of their contractual obligations. But if such relief is required, it is available in the circumstances averred by the reclaimers by virtue of secs. 46 and 47(2) of the Court of Session Act 1988. The reclaimers do not seek to take advantage of these provisions, and in moving for interim interdict they have in my opinion chosen to proceed in a manner which is not open to them.

Although the decision in Grosvenor Developments 1987 S.L.T. 738 was expressed in the rubric of the report in Scots Law Times and in certain passages of the opinions given in the case as turning on the competency of "enforcing a positive obligation", it is also clear from the opinions that interdict was refused because, as Lord Kincraig stated at p. 740D, it could not "logically be applied so as to prevent inaction and thus compel action". The observations which I have made in regard to the classification of obligations as positive or negative for the purpose of determining the competency of interdict do not affect that view, and I consider that the decision was correct for the reason expressed in Lord Kincraig's dictum.

I accordingly agree with the motion proposed by your Lordship.

LORD CLYDE —The process of interdict is said by Burn-Murdoch (Interdict, p. 6) to have evolved principally from the old process of suspension. But as he also points out (p. 10) its existence as a competent proceeding independent of that process can be identified from an early date. The essential characteristic of the interdict is that it orders the cessation of some specified act or proceeding which is taking place or about to take place. The authorities explored by counsel before us amply vouched the essentially preventive nature of the order. This is in distinction to an order for specific performance. That is a decree which orders the performance of a specified act where there is an obligation to perform it and a failure in performance. Both are forms of remedy, insofar as it is appropriate to use that word, which may be available in the context of contractual obligations. In each case the order must be precise because the sanction for breach of the order is open to punishment as a contempt of the authority of the court. In each case the rule applies that the law will not compel the impossible. Interdict will not be granted to stop an act which has been carried out to completion. Specific implement will not be ordered of an act which cannot be performed. In each case the making of the order is subject to an equitable restraint which is an element inherent in the jurisdiction of the Scottish court. At least in matters of contract the court will enforce a contractual obligation unless there are exceptional circumstances making it inequitable to do so (Salaried Staff London Loan Co. Ltd. v. Swears & Wells Ltd. 1985 SC 189).

The competency of the granting of an interdict ad interimpending the resolution of a dispute has also long been recognised. On the other hand counsel before us in the present case had found no authority on the competency or otherwise at common law of an order for specific performance ad interim. The nature of the order is of course one which requires a reversal of an existing situation not its preservation, and in that respect, while it might be made at an interim stage of the course of proceedings, it may not have the temporary character of an interim interdict (see Maersk Co. Ltd. v. National Union of Seamen 1988 S.L.T. 828 and Stirling Shipping Co. Ltd. v. National Union of Seamen 1988 S.L.T. 832). However, certain provisions have been made by Parliament. Section 89 of the Court of Session Act 1868, re-enacted in sec. 46 of the Court of Session Act

1988, empowers the court to reinstate a petitioner in a possessory right or grant specific relief against an illegal act where an act has been done which might have been prohibited by interdict. Section 6(7) of the Administration of Justice (Scotland) Act 1933, re-enacted in sec. 47(2) of the Court of Session Act 1988, empowers the court in any cause in dependence before it to make such order as it thinks fit regarding the interim possession of any property to which the cause relates or regarding the subject matter of the cause. While sec. 46 of the 1988 Act and its predecessor do not expressly refer to interim orders, and its application in that regard has not been debated before us, sec. 47 is clearly providing for orders of that kind and the generality of sec. 47(2) seems to me quite adequate to cover the making ad interimof an order for specific performance even if that was not already available at common law.

These remedies now being available, the question is raised in the present case whether it is competent to compel by interdict the performance by someone of a positive act which he is obliged by contract to perform. The issue is exclusively one of competency, distinct from all the other considerations which surround the granting or refusing of an interdict or in particular of an interim interdict. It is recognised that, as Burn-Murdoch observes at para. 190, many interdicts of unquestionable competence may have a positive reaction. But while that has been accepted in cases where the performance of an obligation is a possible result, the question in the present case is whether interdict is competent where that performance is the only possible result so that in substance the order compels the other party to perform.

The interdict sought in the present case is an order to inhibit the defenders from failing or continuing in their failure to comply with certain obligations set out in the second conclusion, namely to occupy the subjects of the lease, to keep them open during certain specified hours and to use the subjects as an Abbey National office until the termination of the lease in any of the various specified ways which could occur under the lease or in accordance with law. There is a possible question whether by leaving the subjects closed and unattended but still fully furnished the tenants are in breach of any obligation to occupy them but that issue is not explored in the present reclaiming motion. It is not disputed that the defenders are in breach of their obligations under the lease at least in that they have switched off the electrical supply to the lighting and equipment in the unit, have kept the place closed and shuttered and have decided not to re-enter the place or materially change that state of affairs.

The reclaimers seek to have the court overrule the decision of an Extra Division in the case of Grosvenor Developments (Scotland) plc v. Argyll Stores Ltd. 1987 S.L.T. 738. The Lord Ordinary felt himself bound by that decision and while the reclaimers' first ground of appeal suggests that he misdirected himself in that regard the burden of the argument before this court was rather that the decision was wrong.

In Grosvenor the tenants were still in occupation of the let premises. The interdict sought was an order against them from ceasing to continue to occupy and use the premises for the purposes of the retail sale of foodstuffs and other goods commonly sold in supermarkets and discount stores, which was what the lease expressly obliged the tenants to do. The sheriff principal and the Extra Division held it incompetent to grant such an order. The essential ground for the decision appears to have been the consideration of the essential character of an

interdict, namely that it prevents specific acting and cannot compel specific acting. The order sought was of a wider nature than that sought and granted in the case of Church Commissioners for England v. Nationwide Anglia Building Society 1994 S.L.T. 897, where the act prohibited was the vacating of the subjects. The order did not compel them to continue trading. In the Grosvenor case the prohibition sought was not simply against vacating the premises but also from doing anything else in their continued occupation than continuing with the performance of their specific contractual obligations. The tenants were thus left with no alternative to performance. In holding the interdict to be incompetent the court proceeded on a review of a number of authorities, several of which, at the least, pointed towards the conclusion which was reached. Two of the cases which were considered by the court require particular notice.

The case of Magistrates of Glasgow v. Commissioners of Police of Glasgow (1839) 1 D. 460 appears to be at least one precedent for an interdict which compelled implementation of a specific duty. In that case Lord Cockburn granted an interim interdict prohibiting the commissioners from acting on their resolutions to discontinue their management of a fire establishment. Thereafter Lord Cuninghame granted a further interim interdict prohibiting the commissioners from acting on certain particular resolutions or passing further resolutions reducing their activities in extinguishing fires. It appears that when the interdicts were granted and before answers were lodged it was understood by the court that matters were still entire and it only subsequently emerged that in fact the magistrates had, apparently under some reservation of the statutory position, to some extent taken over the management of the fire establishment. The Second Division continued the interdict on the basis that the commissioners were not entitled to give up their statutory duties and the magistrates were not prevented from obtaining an order to compel them to perform those duties. Lord Meadowbank's observation in that regard does seem to be an acceptance that by the interdict the commissioners were being compelled to perform their statutory duty. It does not appear that the commissioners had carried through their resolution to completion and the effect of the interdict was to prevent further actings contrary to the statutory duties which continued to bind them. While contrary to the understanding of the Lord Ordinary there had been some innovation upon the situation which the court was seeking to preserve, the position had not been so altered as to make interdict incompetent for that reason. The order made was against the taking of positive steps towards the running down and closing of the establishment. It did not oblige the commissioners actively to innovate upon the existing situation but rather prevented them from further positive steps contrary to their statutory duty. I do not believe that the case is so powerful a precedent in the pursuers' favour as it might first appear to be. But even if it was seen as supporting the pursuers' contention, its force should in any event be seen as diminished when one remembers that it was decided before the passing of the Act of 1868 which provided not only the remedy contained in sec. 89 but also that contained in sec. 91.

The other case which might be thought to be helpful to the pursuers' contention is that of Deane v. Lothian Regional Council 1986 S.L.T. 22 where the Second Division granted an interim interdict against an education authority from taking any steps to implement a decision which they had taken to close a school before the determination of an action of reduction which had been raised to challenge a

decision of the Secretary of State relative to the closure. The argument in the reclaiming motion concerned the approach to be taken in deciding whether an interim interdict should be granted and no issue of competency was evidently discussed. Indeed the terms of the interdict were resolved in the light of an agreed position taken up by the parties. The interdict secured a continuation by the authority of the running of the school which had not yet been closed by preventing them taking further steps towards that end and an undertaking was given by the education authority to see that parents were informed of the situation and to enable parents to continue sending their children to the school in those cases where the parents had already opted to send their children elsewhere. It was by the undertaking rather than the interdict that positive action was achieved to enable some restoration of the original situation. I do not see this case as a clear precedent for the position sought to be achieved by the present pursuers. Indeed it is difficult to see how at least Lord Ross in that case could have seen the order which he there endorsed as being incompetent when only two months before in Keeney v. Strathclyde Regional Council 1986 S.L.T. 490 he had expressly doubted the competency of enforcing a positive obligation by interdict.

The decision in Grosvenor was obviously influenced by the obiter observation by Lord McLaren in Wemyss v. Ardrossan Harbour Co. (1893) 20 R. 500 at p. 505 to the effect that an interdict involving a double negative should not be permitted. That dictum does not appear to have been challenged, although it may be that the shorthand phrase which he used of the "negative interdict" is not altogether appropriate and should perhaps be discontinued. It contrasts confusingly with the use made by Lord Justice-Clerk Hope of the phrase in Williamson v. North British Railway Co. (1846) 9 D. 255 at p. 269, where it is used simply to identify the preventive character of the order. But however that may be it seems to me that the approach is not one to be determined simply by reference to the form of the interdict and the number of negative elements it may or may not contain but rather to the substance of it.

In the present case, unlike the case of Grosvenor, the landlords were unaware of the tenants' intentions and so did not take action until after the tenants had closed the premises. On one view there was already a fait accompli so that no competent interdict could lie in that regard. But this is not a case where the contractual obligations are so limited in time as to make the whole matter now one of past history. The contract of lease still remains with current obligations currently enforceable. The distinction was noted in the course of the argument between wrongs which are continuous and wrongs which are repeated, the distinction between the trespasser who comes on to the land and remains there and the trespasser who comes and departs again from time to time. That distinction may be important in some particular connections, such as acquiescence, but it does not seem to me to be of significance in the present case. I see no need to explore a theoretical analysis of the defenders' continuing failure to open the premises as the effect either of a single initiating decision to move the staff out or of a daily decision not to re-open them. The procedural link with suspension has for a long time been accepted as unnecessary and there is no need to look for or identify an initial subject for suspension. Nor am I persuaded of the necessity in the present case to analyse or explore the distinctions between the form or the substance of "positive" or "negative" obligations or to follow Lord Prosser's footsteps into the delicate analysis which he undertook in

Hugh Blackwood (Farms) Ltd. v. Motherwell District Council Outer House, 28th July 1988, unreported. I see no need to do more in the present case than to recognise that as matters presently stand the defenders are continuing to be in breach of their contractual obligations and that in such a situation the pursuers should not be left without an immediate remedy. I am however not persuaded that the remedy sought here should be held to be competent.

The competency of a proposed order for interdict falls in my view to be determined by considering the substance of the proposed order. An interdict is directed at the prevention of action, not the prevention of inaction. Interdict is not incompetent merely because the effect of it is to achieve action. If there is a wrongful act or proceeding threatened or still taking place and not yet completed it may be interdicted even although the offending party requires to do something, like moving from premises which he is occupying without any right to do so, in order to comply with the order. If the interdict preserves the current situation of the rights of parties substantially entire and prevents the other party from taking action which if taken would be wrongful it should be competent. But when the order, however expressed, in substance orders the other party to perform a specific obligation as opposed to refraining from action which will be wrongful then it does not seem to me to be competent. That is in substance what was decided in the Grosvenor case and I consider that that was correct. So also when a party is already in breach of a continuing obligation incumbent upon him to do something and positive action is necessary on his part which will innovate upon the present situation and achieve compliance with his obligations then that seems to me to be going beyond the essentially preventive character of the order and is beyond its competence. In such a case, and the present seems to be such a case, the failure to perform a contractual obligation should as matter of competency be remedied by an order to perform. The propriety of granting such an order is of course a matter of the circumstances with which we have not been concerned. The present inaction on the part of the defenders cannot be remedied by an interim interdict and I agree that the reclaiming motion should be refused.

[1994] SC 651

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