Scottish Court of Session Decisions

[1] The pursuers in this action are the feudal superiors of heritable subjects that include part of Letherby Drive, Mount Florida, Glasgow. That part of Letherby Drive includes the section adjoining premises at 37 Carmunnock Road and 6 Letherby Drive. The pursuers are also the operators and occupiers of the National Stadium, Hampden Park. The first defender is heritable proprietor of the premises at 37 Carmunnock Road and 6 Letherby Drive. His title includes the adjoining roadway. The third and fourth defenders are tenants of the first defender in respect of those premises. The third defenders conduct a private hire car business from the property in question. That business is managed by the second defender. The fourth defenders conduct a car sales business from the property. Letherby Drive is a private road.

[2] It is averred by the pursuers that Letherby Drive has been used for a period a well in excess of 20 years as a means of access to and egress from Hampden Park Stadium (now the National Stadium) for cars, buses and coaches bringing spectators to and from the Stadium. The registered title to the first defender's property contains the following real burden:

[3] The reference to "The second party and his foresaids" in that real burden includes the first defender. The section of Letherby Drive adjoining the subjects at 37 Carmunnock Road and 6 Letherby Drive forms part of the plots of ground disponed in the feu disposition which created the foregoing real burden. The real burden is accordingly binding on the first defender as proprietor of that section of Letherby Drive, and on the remaining defenders as persons deriving their rights or title from him.

[4] In article 6 of condescendence the pursuers aver that between about November 1999 and April 2001 the third or fourth defenders parked a car on the carriageway of Letherby Drive at or close to the north-east corner of 6 Letherby Drive. The car was parked at right angles to the carriageway and in such a way that it partially blocked it. When this car was in position it was impossible for cars to pass it other than in single file, and that with difficulty. It was not possible to drive larger vehicles such as fire engines, ambulances, buses, lorries or coaches past it at all. Consequently larger vehicles approaching the National Stadium from the north or north west required to make a substantial detour to enter the car parks lying to the west and north of the Stadium. In particular, it was not possible to drive coaches or buses into or out of the car park of the National Stadium via Letherby Drive.

[5] In article 7 of condescendence the pursuers further aver that by about April 2001 the car in question had been removed, but had been replaced at approximately the same location by a barrier. The barrier consisted of two bollards cemented into the carriageway of Letherby Drive to which a section of metal fence had been padlocked. During the course of the debate I was informed that the metal fence had been removed during the afternoon of 11th July, leaving the two bollards. It is averred that a sleeping policeman was constructed on the carriageway between the bollards, but the photographs lodged in process show that the sleeping policeman in fact extended right across the carriageway. One of the bollards was situated on the south side of the carriageway (the side adjacent to the first defender's premises) and the other in its middle. Consequently, when the fence was in position access along Letherby Drive was restricted at that point to half the width of the carriageway. Before the removal of the fence the side of the barrier facing the National Stadium car park bore a sign reading "Emergency access only and local residents". The pursuers aver that that sign was calculated to deter persons visiting the National Stadium from using Letherby Drive as a route for vehicular access. They aver that the barrier was put in place by the second defender acting in the course of his employment with the third defenders. In article 8 of condescendence examples are given of occasions when ambulances answering emergency calls were prevented from entering the National Stadium via Letherby Drive because of the existence of the barrier.

[6] The pursuers aver that the parking of the car referred to in article 6 of condescendence and the erection of the barrier referred to in article 7 of condescendence are breaches of the real burden referred to above. In these circumstances they conclude for interdict against the defenders in the following terms:

[7] On 2 July 2001 Lady Cosgrove pronounced interim interdict in terms of the foregoing conclusion. The defenders have now enrolled a motion to recall that interim interdict. At the bar, however, Mr Cowie, who appeared for the defenders, made it clear that he only sought recall of the interim interdict so far as it was founded on part (b) of the conclusion.

[8] Mr Cowie explained that the defenders were concerned that damage was being done to the roadway in Letherby Drive through heavy use. Flood damage had occurred and a report had been obtained on the condition of the road. The report concluded that if heavy traffic continued the road would require to be upgraded. The barriers had been placed to restrict heavy vehicular access. They did not prevent access, and even a truck could pass through them.

[9] Mr Cowie submitted that part (b) of the interdict was not an interdict at all, but rather an attempt to obtain a positive order; this was clear, he maintained, from the use of the expression "placing or maintaining in place". He contrasted the conclusion for interdict with the second conclusion of the summons, which seeks decree ordaining the defenders to remove all obstructions in the roadway. The second conclusion further seeks a specific order to remove obstructions ad interim, in terms of section 47(2) of the Court of Session Act 1988, but no motion had been made for an interim order in terms of that conclusion. Mr Cowie submitted that the pursuers were trying to use the interdict to force the defenders to remove the barriers that they had placed in the road. Removal of the barriers might involve construction work. That was not the same as, for example, the removal of a vehicle that had been left in the roadway. Consequently what was sought was in reality a positive order to remove obstructions. In view of the decision in Church Commissioners for England v Abbey National PLC, 1994 SLT 959, it was not competent to use an interdict to obtain a positive order of that sort.

[10] Mr Cullen, who appeared for the pursuers, submitted that it was competent to pronounce interdict against the continuing infringement of a real burden expressed in negative terms. The important question was whether the substance of the order sought was to prohibit the anticipated continuation of activity which breached the restriction imposed by a real burden of the type under consideration. Provided that the wrongful act included the continuing infringement of the restraint in the real burden, it might be interdicted even though the offending party required to do something to comply with the interdict. Church Commissioners for England v Abbey National PLC, supra, was cited as authority for those propositions. In addition, Mr Cullen referred to two other cases where interdict had been pronounced even though it was necessary for the persons interdicted to take positive steps to secure compliance with the court's order.

[11] The more recent of those cases was Phestos Shipping Company Limited v Kurmiawan, 1983 SLT 388, where, in the course of an industrial dispute between the crew of a vessel and its owners, the crew occupied the vessel and refused to move. The owners sought interdict and interim interdict against the crew from "continuing in occupation and possession of, and remaining on board and trespassing on the motor vessel Bulk Trader presently lying at Leith or any deck or any compartment thereof". Compliance with an interdict in those terms would obviously require the crew to take the positive step of removing themselves from the ship. Interim interdict was granted by the Second Division, although the competency of the order was not argued.

[12] The earlier case cited by Mr Cullen was Colquhoun's Curator Bonis v Glen's Trustee, 1920 S.C. 737, where a feu contract provided that a house should be used for residential purposes only. The tenant of the house used two rooms to conduct a school for young children, and the superior brought an action to interdict such use of the house. Positive steps would clearly require to be taken by the tenant to cease occupying the premises for the purposes of a school. Interdict was granted, although once again the competency of the remedy was not argued.

[13] Mr Cullen submitted that these two cases indicated that the courts have been in habit of pronouncing interdicts even in cases where some level of positive activity was required to comply with the terms of the court's order. In the present case the pursuers sought to prohibit the defenders from obstructing the roadway in Letherby Drive, and that was manifestly something that could be achieved by interdict.

[14] The issue between the parties is thus whether part (b) of the interdict sought by the pursuers is competent. Both parties agreed that the relevant legal principles were to the found in Church Commissioners for England v Abbey National PLC, supra. In that case a lease of premises within a shopping centre contained obligations on the tenants to occupy those premises, to keep them open within usual business hours, and to use them as an office for the provision of financial services. The tenants failed to keep the premises open for business, and the landlords sought interdict of the tenants "from failing or continuing in the failure to comply with [their obligations to occupy the premises and keep them open] or otherwise breaching or continuing to breach their obligations under the said lease". A court of five judges held, affirming the Lord Ordinary, that an interdict in the foregoing terms was incompetent, as the pursuers were attempting to enforce a positive obligation by way of interdict. The court followed the earlier decision of the Inner House in Grosvenor Developments (Scotland) PLC v Argyll Stores Limited, 1987 SLT 738. The essence of the decision is contained in the following passage in the opinion of the Lord President (at 963B-D):

[15] The Lord President went on to state (at 964 I) that it is not competent to enforce directly a positive obligation by means of an interdict.

[16] In my opinion Church Commissioners for England v Abbey National PLC is authority for the following propositions.

[17] First, interdict is a preventive or prohibitory remedy. Consequently, if an interdict is to be granted, the order sought must be negative in substance: see the Lord President at 963B-D; Lord McCluskey at 967B-C; Lord Clyde at 970H-L.

[18] Second, because of its essentially negative nature, interdict is normally the appropriate means of enforcing a negative obligation. That is because in such a case the order sought from the court will usually repeat the substance of the primary obligation founded on by the pursuer, and if that primary obligation is negative the court's order will likewise be negative.

[19] Third, because interdict is a preventive or prohibitory remedy, it is not competent to enforce directly a positive obligation by means of an interdict: see the Lord President at 964I-J; Lord McCluskey at 967J; Lord Clyde at 970J. Interdict may be used, as the Lord President pointed out at 964K-L, to prevent a party from acting in a manner which is inconsistent with a positive obligation. In such a case, however, the interdict is not used to enforce the positive obligation directly, but is used in the proper way, as a preventive or prohibitory remedy, to stop an action that involves a breach of the positive obligation.

[20] Fourth, the distinctions between a positive and a negative obligation and between a positive and a negative order are a matter of substance, not of form. These distinctions do not turn on the language used, but on the substantive content of the obligation or order in question. On this issue, the Lord President said (at 964J-K)

Lord McCluskey also dealt with this matter, stating (at 967C-D)

Finally, Lord Clyde stated (at 970H-I)

[21] Lord Morison appeared to disagree with the majority on the use of the words positive and negative in relation to obligations and orders: see 967L-968A. Nevertheless, when he stated (at 968A) that the substance of an order for interdict must be to prohibit an activity, I do not think that he was in fundamental disagreement with the views of the majority; a prohibitory order is a negative order, and such an order is the usual method of enforcing a negative obligation. In any event, while there will no doubt be some cases where it is difficult to tell whether an obligation or order is positive or negative, in the great majority of cases the distinction should be clear, provided that the substance of the obligation or order rather than its form is considered.

[22] Fifth, interdict may be used to prohibit wrongful acts that are either threatened or continuing: see the Lord President in the passage at 963C-D quoted above. It is a remedy that looks to the future, and thus its function is either to prevent threatened action from taking place or to prevent the further continuation of an existing action. Cases where interdict is granted against persons trespassing on property are perhaps the commonest example of an interdict against the continuation of an existing action; Phestos Shipping Company Limited v Kurmiawan is such a case. Lord Clyde referred at 970I to interdict's being available "if there is an unlawful act or proceeding threatened or still taking place and not yet completed". If an act or proceeding is "continuing", or "still taking place", it must obviously have been completed to some extent, in that a wrong has already been done to the pursuer. Nevertheless, it is clear that Lord Clyde considered that interdict was competent in such a case. It therefore seems clear that the reference to a proceeding that is "not yet completed" is confined to cases where the actions complained of can reasonably be regarded as having taken place entirely in the past, without any continuation to the date when interdict is sought. Such a case might occur where the matters complained of had passed beyond the control of the defender. Where, on the other hand, a situation has been created that involves a breach of the defender's negative obligation and resultant harm to the pursuer, and that situation still continues and is under the control of the defender, interdict would be a competent remedy: see Hugh Blackwood (Farms) Limited v Motherwell District Council, 28 July 1988; 1988 GWD 30-1274.

[23] Sixth, in some cases an order prohibiting a continuing wrong may have the result of requiring the defender to take positive action. Thus the Lord President referred at 963B-C to the "many cases in which the interdict granted has had as its practical result the performance by the defender of some positive act". Lord Clyde stated (at 970I-J)

[24] Lord McCluskey dealt with this point in greatest detail. After stating that a difference existed between orders of the court that might be complied with by doing nothing at all and orders that could not be complied with except by taking positive action, he continued (at 967C-G)

[25] In Church Commissioners the order sought was clearly positive, and consequently it was not necessary for the court to decide on the test for determining whether incidental positive action of the sort just described is an acceptable feature of an interdict. In my opinion the appropriate test is that suggested by Lord McCluskey at the end of the last quotation from his opinion. If the court's order is in substance wholly negative, and there is no need to specify any positive action to be taken by the defender for the order to be effective, the fact that positive actings will in fact be required to comply with the order is not a bar to interdict. If, on the other hand, the pursuer requires to specify in the order sought precisely what positive actings the defender must take to comply, interdict is incompetent, and an order under section 48 of the Court of Session Act 1988 will be the only competent remedy. My reason for preferring this test is that it proceeds from the fundamental nature of interdict as a preventive or prohibitory remedy. Moreover, it draws a distinction between cases where the positive actings are merely incidental to a negative order and cases where they are an integral and essential part of the order itself. Finally it recognises that in the case of a negative primary obligation, such as an obligation not to trespass on land or not to flood land or not to pollute a water supply, the beneficiary of the obligation will usually be concerned to achieve a result, namely freedom from trespass, or from flooding, or from pollution, and it is immaterial to him how that result is achieved. In such a case, interdict is the obvious way of achieving the necessary result, and the defender is left to choose the appropriate means of achieving that result.

[26] I now turn to the application of the foregoing principles to the facts of the present case. In my opinion this can best be done as follows. First, the primary obligation that is to be enforced should be categorised as positive or negative, as a matter of substance. If the primary obligation is negative in substance interdict will be the normal method of enforcing that obligation, whereas if it is positive in substance interdict will only be available to prevent actings inconsistent with the obligation, but will not be available to enforce the basic obligation itself. Second, if the primary obligation is negative in substance, the remedy that is sought must be considered, in order to determine whether it is appropriate to the primary obligation and whether the order sought is positive or negative, as a matter of substance. Third, the positive implications of the order should be considered. If, for the order to be effective, it is necessary that positive actings on the part of the defender should be specified, interdict will be incompetent. If, on the other hand, the order's requirements are wholly negative in substance, and it is not necessary to specify any positive actings to be performed by the defender, the remedy will be competent.

[27] In the present case I am of opinion that the primary obligation is clearly negative in substance. It is an obligation "to leave open and free of buildings or other obstructions" certain specified areas of ground. In substance that is an obligation not to build on or place obstructions on the land in question. Mr Cowie argued that the present obligation was positive, and sought to draw an analogy with the obligations considered in Church Commissioners, where the lease obliged the tenants to keep the premises "open" during normal business hours. In my opinion the analogy is not well founded, as the word "open" has a wholly different meaning in each case. An obligation to keep business premises open is clearly positive as a matter of substance, in that the person bound must provide staff and equipment and, in appropriate cases, stock in order to carry on business from the premises. An obligation to leave land open, by contrast, is clearly negative in substance, in that it obliges the person bound not to build or place obstructions on the land. Consequently interdict will be the normal means of enforcing the primary obligation in the present case.

[28] I am further of opinion that the remedy sought in part (b) of the present conclusion for interdict is appropriate to the primary obligation and is negative as a matter of substance. Part (b) prohibits the defenders from maintaining in place or causing, instructing or permitting others to maintain in place any obstructions on the area affected by the primary obligation. That is in my view properly regarded as a preventive or prohibitory order. The primary obligation prohibits obstruction of the roadway, and the interdict merely reflects that prohibition. The interdict relates to a state of affairs that is continuing rather than threatened, but it is designed to prevent the further continuation of that state of affairs; moreover that state of affairs is under the control of the defenders. The opinions in Church Commissioners clearly indicate that interdict may be competent in such circumstances.

[29] An interdict in the terms sought in part (b) of the first conclusion of the summons would undoubtedly have positive implications, in view of the fact that the defenders had placed two bollards and a sleeping policeman on the carriageway of Letherby Drive in the area affected by the interdict. Consequently the bollards and sleeping policeman would require to be removed in order to comply with the interdict. It is not, however, necessary for the pursuers to specify in the interdict what requires to be done in order to comply with the primary obligation; in particular, it is not necessary for them to specify that any particular bollards or sleeping policemen or other obstructions require to be removed. Part (b) of the interdict does refer to maintaining in place "any bollards, fences, posts, gates, cones, signs, sleeping policeman or other traffic calming or inhibiting devices", but these are mentioned merely as examples of the types of obstructions that are covered. The primary obligation contained in the title to the first defender's property relates to leaving the land free of "buildings or other obstructions", and all of the examples given would in my opinion fall within the category of "other obstructions". Thus I can see no objection to the pursuers' giving such a list of examples; the list merely echoes the substance of the primary obligation, and there is no specification of any particular act that requires to be taken by the defenders in order to comply with the primary obligation.

[30] For the foregoing reasons I am of opinion that part (b) of the interdict sought in the present case satisfies the tests laid down in Church Commissioners for England v Abbey National PLC, and is therefore competent. I accordingly refuse the defenders' motion to recall that part of the interdict.