|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mount Cook Land Ltd v Joint London Holdings Ltd & Anor  EWCA Civ 1171 (07 October 2005)
Cite as:  EWCA Civ 1171
[New search] [View without highlighting] [Printable RTF version] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Mr Justice Blackburne
In the High Court Chancery Division
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JONATHAN PARKER
MR JUSTICE ETHERTON
| Mount Cook Land Limited
|- and -
|Joint London Holdings Limited
Market Place Investments Limited
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Jeremy Cousins Q.C. and Mr Philip Kremen (instructed by Brecher Abram) for the Respondent
Crown Copyright ©
Mr Justice Etherton :
"That (without the previous written consent which may be temporary or permanent, revocable or irrevocable or otherwise howsoever framed or qualified by the Lessors) there shall not be carried on or exercised in or upon any part of the said premises the trade business or calling of a Butcher Purveyor of Meat Slaughterman Fishmonger Tallow Chandler Melter of Tallow Soap Maker Tobacco Pipe Maker or Burner Smith Sugar Baker Fellmonger Dyer Distiller Farrier Blacksmith Common Brewer Coppersmith Working Brazier Pewterer Tinplate or Iron Plate Worker Cooper Tripe Boiler Tripe Seller Fried Fish Shop Coal Shed Keeper or Vendor of Coals Marine Store Dealer Rag or Fat Merchant Beater of Flax Auctioneer Victualler Vintner Tavern Keeper Vendor of Malt Liquor Restaurant or Coffee House Keeper Nursing Home Keeper Laundry Keeper Railway Parcel Booking Office Manufacturer of or Dealer in Motors or motor vehicles or hirer out or keeper of motors or motor vehicles Massage Manicure or other Medical or Surgical or quasi-Medical or quasi-Surgical Establishment or any of them or any noisome noisy or offensive trade or business or calling whatsoever or any trade or business involving the storage of electricity or oil or inflammable or explosive substances or any trade or business by reason whereof the annual premium for insurance of the said premises against loss or damage by fire according to the covenant for Insurance hereinbefore contained shall exceed Ten shillings and sixpence per centum or the rate of premium on any Policy of Insurance of any other premises of the Lessors may be liable to be increased and that the said premises shall not nor shall any part thereof at any time be used as a Brothel or disorderly house or for any illegal or immoral purpose or for any public exhibition or entertainment and that no sale by auction shall be held thereon."
"At all times during the Term to use the Demised Premises in accordance with the provisions for user in the Particulars and not to use the same or any part for any other purpose."
"Offices (other than as a betting office) and/or showrooms with ancillary stockrooms, storage and car parking in the basement".
"Where any act is prohibited the Tenant shall not allow or suffer such act to be done".
"(i) the use of premises at 41 & 42 Eastcastle Street and 2 & 3 Market Place, London W1 ("the Premises") as a shop for the sale of pre-prepared sandwiches, croissants, hot and cold drinks and ancillary products for consumption off the Premises would not constitute a breach of clause II(7) of the lease of the Premises made on 18th September 1950;
(ii) the use of premises at 41 & 42 Eastcastle Street and 2 & 3 Market Place, London W1 ("the Premises") as a shop for the sale of pre-prepared sandwiches, croissants hot and cold drinks and ancillary products for consumption off the premises, and for ancillary consumption on the Premises would not constitute a breach of clause II(7) of the lease of the Premises made on 18th September 1950."
"I accept that victualler in its strict sense does not necessarily connote alcohol. It is also clear however that victualler can, in context, include that connotation. It is clear from the Oxford English dictionary and various 19th century statutes. I accept Mr Brock's submissions that the use of victualler to mean any food and drink is wholly inapt in this case because of the specific prohibitions in the remainder of the covenant. I also accept there is some significance in the collocation of the words indicating the view of the draftsman and the parties' intention to connote liquor. Construing the covenant as a whole, it seems to me that victualler does connote alcoholic liquor. That the sandwich bar does not sell. So the Master was right in his conclusion that there is no breach of covenant."
"Traditionally, places which were open from early morning to late at night, entry to which was in return for a penny fee and where patrons were served beverages, principally coffee and, to a lesser extent, food, coffee houses in those days were places to which people, almost exclusively men, resorted to converse, to engage in the display of wit and clever discourse, to exchange views on the topics of the day and to deposit and collect letters. In time, alcohol came to be served, with the result that by the end of the 18th century, the distinction between coffee houses and taverns had become blurred. In his reference book on coffee houses entitled "London Coffee Houses" published in 1963, Mr Bryant Littlewhite described (at page 26) how:
"… by the early years of the 19th century, the coffee-houses were mostly in the hands of vintners and coffee drinking but a minor attraction. Although many maintain the description of coffee-house, their character varied with the ebb and flow and custom, the mode of the time, or perhaps the licensing laws. Changes noted are from inn to tavern, tavern and coffee-house, thence to coffee-house, to coffee-house, tavern and hotel, and lastly to hotel. Others changed from coffee-house to subscription house, paving the way for clubs. With the approaching end of the coffee-house vogue, some reverted to tavern, wine house or similar. By 1858, a new type of refreshment house came into being under the description of Coffee Rooms".
"It is clear from Fitz v Iles that coffee house is not limited to the 17th and 18th century meanings. The Court of Appeal in that case referred to "a new fashioned coffee house" which amounted to food and drink consumption on the premises. I fail to see the distinction between a shop providing those on a self-service basis with waitress service insofar as it applies to a coffee house. There is no evidence in Fitz v Iles that the Court of Appeal though that the point was significant. In my judgment, just as in 1892, so in the present time, provision of light refreshments for consumption on or off the premises is reasonably within the covenant. A sandwich bar is engaged in that business. Accordingly, it is a breach of covenant as a coffee house."
The Appeal: "Victualler"
"1. A supplier of victuals; spec (a) a person whose business is the provision of food and drink; (b)=licensed victualler".
"Articles of food: supplies, provisions, now esp. as prepared for use".
"an innkeeper licensed to sell alcoholic liquor etc."
"I find it stated in Tomlin's Law Dictionary that a victualler means "a person who sells victuals"; and of course, when he gets a license he is called "a licensed victualler."
The Appeal: "Coffee House Keeper"
"23. After the middle of the 19th century, Mr Littlewhite described (at page 27) how:
"From now on the coffee-house is a rapidly dwindling force. A few were destined usefully to linger until either changing in character or merely closed, for coffee-houses which had so well served London for 200 years came slowly to an end."
"6.16. Another institution which developed in the 19th century was the café, drawing its inspiration and its name from continental examples. Many were established by immigrants themselves in quarters peopled by them such as Soho. When in an oft-quoted chapter in his work, Bohemia in London, published in 1907, Arthur Ransome wrote about 'Coffee-houses about Soho', it was to the smaller and more exotic variety of such cafes that he was referring. They were establishments such as 'The Moorish Café' and 'The Algerian' which he described at some length. They were not coffee houses in the true meaning of the term."
"4.14. Since the end of the 19th century, the term coffee house (and latterly coffee shop) has become associated with the light refreshment end of the range of activity included within the definition in Fitz v Iles. It is indeed clear from Mr Belcher's para 6.16 that in the early 20th century the words 'coffee house' could be equated with a 'café'. This is indeed underlined in the mid 20th century by the Kardomah Café chain, established in 1894 and trading under the Kardomah name by 1938. At least one branch in London was destroyed in the second world war, and they continued to trade until 1966 (Richmond, L and Stockford, S, Company Archives: The survey of the records of the first 1000 registered companies in England and Wales (Aldershot 1986), p72). That they were commonly referred to as coffee houses as well as cafés is confirmed by recollections. For example, Alexandra Pringle, a publisher referring to school days in Chelsea during the 1950s, recalled that 'There were also quite sedate expeditions… to the Kardomah Coffee House following missions to Peter Jones for dress patterns or fabrics' (S. Maitland (ed), Very Heaven: Looking back at the 1960s (Virago, London) 1988, 36).
4.15. The use of the word 'House' in the same sense as its use in the terms 'Coffee House' or 'Public House' was of course epitomised by the name of the Lyons Corner Houses, which spanned much of the 20th century (1909-77)."
"There are skilled people in the coffee-house trade, coffee-house keepers and brokers, who say this is the business of a coffee-house keeper, and the Defendants are using the premises as a coffee-house, although they are also using them for something else. On the other hand, there is evidence to the contrary effect. We must use our common sense. I think this case is really one of degree, and the conclusion to which I have arrived is that in the fair meaning of this covenant the Defendants are carrying on two businesses, one of which is a grocer's business and the other of which is a coffee-house business, though, perhaps, not a very extensive one. They do not sell everything which coffee-house keepers sell; a coffee-house keeper need not sell all sorts of meats and so forth. He may confine himself to light refreshments such as these…… I look upon this as really a new-fashioned coffee-house, but one to which the covenant is applicable."
"Insofar, therefore, as what is proposed for the premises, as reflected in the declarations which Joint London invites me to make, involves consumption on the premises of prepared food, it is caught by the restriction. The fact that it may be no more than ancillary to the sale of pre-prepared and pre-packaged food and drink for consumption off the premises, does not detract from this any more than it did in Fitz v Iles, that the service of light refreshments on the premises was ancillary to the defendant's grocery business in that case."
"If it could be made out that the sale of these articles made up the business of a ladies' outfitter it would be quite another question, but it does not follow, because it is necessary for a ladies' outfitter to sell certain articles, that every one who sells these articles is carrying on the business of a ladies' outfitter. Suppose, for instance, that the sale of corsets is an important part of the business of a ladies' outfitter, it could not be contended that a person who sold corsets, and nothing else, was to be considered a ladies' outfitter. That trade is not carried on by any one who does not sell substantially all articles of ladies' underclothing. The Defendants sell many things which are not sold by ladies' outfitters, and do not sell many things which are sold by ladies' outfitters. They sell some things which are sold by ladies' outfitters, but they sell them in the ordinary course of their business as drapers and hosiers. The covenant is not against selling any of the articles which are sold by ladies' outfitters, such a covenant would raise quite a different case. "
"The business of a ladies' outfitter is one business – the business of a hosier is a distinct business. The two businesses overlap each other by having four classes of articles the sale of which is common to them both. But a covenant not to carry on the business of a ladies' outfitter is not broken by carrying on the business of a hosier, and the hosier commits no breach by selling some articles which are usually sold by a ladies' outfitter, if he does it in the ordinary course of the business of a hosier. Mr Dauney put the argument of the Respondent very happily in the form of a syllogism: "All ladies' outfitters sell combinations, the Defendants sell combinations, therefore the Defendants are ladies' outfitters." I do not think that a covenant not to carry on the business of a ladies' outfitter is broken by carrying on a part of that business, which is also a part of another distinct business, even though it be a substantial part of the business of a ladies' outfitter and only a subordinate part of the other business."
"In my view, what is done at these premises is the carrying on of the business of a tea-shop, and that involves, among other things, the sale of cigarettes. It is common-indeed, I was told that it was almost universal-that in tea-shops of this character cigarettes should be sold. Accordingly, it appears to me that it is no more right to predicate of this shop that there is carried on there the business of the sale of tobacco, cigars and cigarettes than to say of it that there is carried on the business of the sale of milk, or the business of the sale of confectionery. There is there carried on the usual business of a tea-shop, which involves the sale of a number of articles therein usually sold."
"the use of premises at 41 & 42 Eastcastle Street and 2 & 3 Market Place, London W1 ("the Premises") as a shop for the sale of pre-prepared and packaged sandwiches, snacks, salads and similar cold food, together with a variety of non-alcoholic drinks, whether or not including coffee, are displayed for sale, primarily for consumption off the premises would not constitute a breach of clause II(7) of the lease of the Premises made on 18th September 1950".
The Part 20 Declarations