Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH NUMBER209
A229/10	OPINION OF MORAG WISE QC (Sitting as a Temporary Judge) in the cause L BATLEY PET PRODUCTS LTD Pursuers; against NORTH LANARKSHIRE COUNCIL Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuers: D Logan; Balfour & Manson

Defenders: M Lindsay, QC; Ledingham Chalmers

[Date of Issue]20 December 2012

[1] The pursuers, L Batley Pet Products Ltd ("Batley") aver that in June 2007 they acquired the tenant's interest in a lease between Highcross (Cumbernauld) Ltd and Jokyle Ltd ("the head lease"). Jokyle Ltd had entered into a sub-lease ("the sub lease") with the defenders in relation to premises at 1/3 South Wardpark Place, Wardpark South Industrial Estate, Cumbernauld ("the subjects"). Accordingly, the pursuers aver that they were "mid landlords" taking on the role of Jokyle Ltd in the sub lease between that company and the defenders. The sub lease was initially due to expire in February 2008 but was continued by a Minute of Variation of Lease so that the expiry date was postponed to 18 February 2009. A Minute of Agreement between Jokyle Holdings Ltd and the defenders dated 30 December 1998 (No. 6/2 of process) regulates the terms on which the mid landlord consented to the carrying out of certain works to the premises by the tenants under the sub lease. In terms of that Minute of Agreement the defenders were authorised to carry out certain alterations to the subjects under the terms and conditions specified therein. Clause 2.5 of the said Minute of Agreement imposes obligations on the sub tenant in certain circumstances and is in the following terms:-

"By the expiration and sooner determination of the period of the sub lease (or as soon as the license hereby granted shall become void) if so required by the mid landlord and at the cost of the sub tenant to dismantle and remove the Works and to reinstate and make good the premises and to restore it to its appearance at the date of entry under the sub lease, such reinstatement to be carried out on the same terms (mutatis mutandis) as are stipulated in this license with respect to the carrying out of the works in the first place (including as to consents, the manner of carrying out works, reinstatement, inspection, indemnity, costs and otherwise).

[2] The pursuers aver that they instructed Colliers, Chartered Surveyors, to prepare a schedule of dilapidations in respect of the works to be undertaken in terms of clause 2.5 above. That schedule of dilapidations was sent by ordinary post and it is admitted that it was received by the defenders on 20 February 2009. The case came before me for discussion on the procedure roll in respect of the defenders' first plea-in-law. The issue for discussion was whether the pursuers had averred a relevant case that they had complied timeously with the requirements of the said clause in the Minute of Agreement.

Submissions for the defenders

[3] The motion made by senior counsel on behalf of the defenders was to sustain their first plea-in-law and dismiss the action. A revised Note of Arguments for the defenders had been lodged (No. 18 of process) and Mr Lindsay confirmed that paragraph 5 would not be argued. There were two main strands to the discussion. First was the issue of the notice to be given by the pursuers to the defenders in terms of clause 2.5 of the Minute of Agreement. Separatim, an issue arose on an esto basis about the liability, if any, on the part of the defenders for redecoration and repairs to the external walls of the premises and redecoration of the interior. .

[4] On the primary issue of notice, reference was first made to the sub lease (No. 6/1 of process). The defenders are the sub tenants in that lease and the interest of the mid landlords Jokyle Holdings Ltd had been assigned to the pursuers conform to the Land Certificate No. (6/4 of process). So far as the Minute of Agreement was concerned, Mr Lindsay contended that the obligation to dismantle and remove the authorised alterations in terms of clause 2.5 died with the expiry of the sub lease. In terms of notice, the notice provisions of the head lease were incorporated in the sub lease and any notice required to be in writing and prior to the end of the lease. It was submitted that the letter received after the expiry of the lease had no effect. To plead a relevant case for the costs of removing to be paid by the defenders the pursuers would require to aver that a written request was made prior to the expiry of the sub lease. In the absence of such an averment the case was irrelevant.

[5] It was clear from the terms of clause 2.5, argued Mr Lindsay, that there was no absolute obligation on the part of the defenders to remove the authorised alterations ("the works") on the expiry of the sub lease. The mid landlord had an option to leave the alterations in place for the next sub lease, should they so wish. In essence the premises had been sub-divided. Accordingly, the defenders required to do nothing unless requested to do so by the pursuers. It was submitted that it was well established that any obligation on a tenant qua tenant could not be enforced after the end of the lease by way of specific implement. Reference was made to Clydeport Properties Ltd v Shell UK Ltd [2007] CSOH 92. In that case Lord Glennie, having reviewed the authorities, confirmed that as a matter of principle, implement could only be ordered of a subsisting obligation. Where that obligation is found in a contract, such as a lease, the question of whether at any particular moment there was a subsisting obligation depended for its answer upon the proper construction of the contract. Unless a lease could be read as imposing obligations of maintenance or re-instatement subsisting beyond the expiry of the lease, a conclusion for specific implement after that expiry was incompetent. It was submitted that in the present case there was no contract to do anything after the sub lease had expired. In PIK Facilities Ltd v Shell UK Ltd and BP Oil UK Ltd [2005] CSOH 94 Lord Kingarth had also confirmed that tenants under a commercial lease could not be asked to return to the subjects of let and carry out certain works. The remedy for pursuers who alleged that premises had not been left in the state they should have been left was one of damages. In the present case, it was submitted that no obligation at all arose on the defenders unless a request was made and as it had not been so made prior to the date of expiration of the lease there could be no breach of contract and thus no claim for damages.

[6] Turning to the terms of the sub lease, reference was made to clause 5.1 which stated that the sub-tenant was also obliged:-

"save insofar as inconsistent with the express terms of the sub lease to fulfil, perform and observe to the relief of the mid landlord the obligations and restrictions of a non-monetary nature undertaken by or imposed upon the mid landlord under the lease so far as they relate to the Premises ...".

This required to be read with clause 5.7 which confirmed that no alterations could be carried out to the subjects without the prior written consent of the mid landlord, which consent would not be unreasonably withheld or delayed. According to Mr Lindsay, the pursuers could not rely on clause 5.1 because clause 2.5 of the Minute of Agreement made specific provision for the defenders' obligations in respect of alterations and their removal. Clause 13 of the sub lease confirmed that the provisions for notices contained in clause 5.8 of the head lease would apply also under the sub lease as if the mid landlord had been substituted for the landlord and the sub tenant had been substituted for the tenant. Accordingly, reference required to be made to the head lease to see what the provisions on notice were. Clause 5.8 of the head lease (No. 6/3 of process) was in the following terms:

"Any notice, request, demand or consent shall be in writing."

It was submitted that as this was a mandatory provision, no relevant notice could be deemed to be given unless it was in writing. Clause 5.8 also provides that any notice or request to the tenant would be sufficiently served if served by recorded delivery post to the tenant's registered office. Mr Lindsay accepted that service by recorded delivery was not mandatory, simply that the notice required to be in writing. However, subsequent provisions of clause 5.8 relating to deemed receipt of any notice applied only to recorded delivery communications and could not assist the pursuers in this case. There was no term in any agreement or variation between the parties to change the notice provisions of the head lease as incorporated into the sub lease. In Capital Land Holdings Ltd v Secretary of State for the Environment 1997 SC 109 an Extra Division of the Inner House had confirmed that where a lease states that any notice or request required to be in writing, that was mandatory and had to be adhered to. The parties were entitled to hold each other to the clear terms of such a requirement. The pursuers' pleadings in this case appear to suggest that somehow the defenders knew a request was coming, perhaps through the surveyors and it might be suggested that nothing turns on the requirement for notices to be in writing. However, Mr Lindsay submitted that the form of any request or notice was relevant only at a second stage after it was established that the mandatory terms had been complied with. In Batt Cables plc v Spencer Business Parks Ltd 2010 SLT 860 Lord Hodge had held that the correct approach where a party was seeking to exercise a contractual right conferred on it, was that the party required first to comply strictly with any agreed conditions or requirements and that the court would only construe the meaning of the notice by use of the device of the reasonable person in the position of the contractually specified recipient where it was shown that those requirements had been complied with. Reference was again made to the pursuers' pleadings where there was an absence of any averment that written notice was given prior to the expiry of the sub lease that the defenders were required to remove the works. Indeed, the pursuer specifically avers that on 18 February 2009 the lease came to an end, triggering the obligation in the said clause. As the pursuers specifically admit that the document was received by the defenders on 20 February 2009 the case was "built on sand" and irrelevant. Anticipating the argument of Mr Logan, Mr Lindsay pointed to the Minute of Variation (No. 6/5 of process). That was the agreement extending the period of the sub lease creating February 2009. Clause 3.3 thereof provides:-

"Except as hereby modified, the parties hereto confirm the whole terms of the lease and that in all respects".

Any reference to the Minute of Variation was irrelevant because the pursuers case was based on the Minute of Agreement, not the Minute of Variation and there could be no question but that the sub lease which specifically incorporates the notice provisions of the head lease remained in force.

[7] Turning to the second leg of the defenders argument, the fall back position in the event that the pursuers had stated a relevant case for damages, it was contended that there was no liability in respect of the "common parts". The premises involved in the sub let were ground and first floor offices. Paragraph 3.8 of the sub lease provided that the tenant would reimburse to the mid landlord 21% of the cost of maintaining, repairing, cleaning (where appropriate), repairing, replacing, renewing, improving and altering the common parts of the building and the common services of the building. Looking at the interpretation and definition section in the sub lease, and the premises were defined as the ground and first floor offices by reference to a plan. The "common parts of the building" is deemed to mean all parts of the building which served the premises in common with the retained premises which includes the roof of the building, the common services of the building and the party wall separating the premises from the retained premises. The "common services of the building" means all the service or conducting media for the provision or supply of services serving the premises in common with the retained premises. In essence, Mr Lindsay's argument was that the external walls were common parts and thus the tenant's obligation was limited to 21%. It was clear that the external walls keep the roof up and the elements out and thus served the premises in common with the retained premises. The retained premises is defined as meaning that part of the subjects described in the lease which does not form part of the premises.

[8] So far as the argument on redecoration was concerned, the sub lease imposes a relieving obligation only. Insofar as the pursuers have obligations under the head lease then the defenders were to relieve them of that. If there was no obligation one could not be created. Under reference to clause 5.1 of the sub lease it was submitted that it was clear that the only purpose of the obligation on the tenant in terms of that clause was to relieve the pursuers of the fulfilment of their obligations under the head lease. While the head lease had provision for requiring decoration, that required to be read with clause 5.1 of the sub lease with the effect that the obligation was to relieve the pursuers of their obligations only during the currency of the lease. The head lease had decoration cycles and thus it would be for the mid landlord to decorate the premises at the end of the sub lease, not the tenant. In any event, the case against the defenders for decoration was pled as an esto case and not as a breach of contract. In terms of clause 5.3 of the sub lease, the pursuers were only entitled to be reimbursed for expenses required to remedy a breach of the defenders' obligations. It was noted that while the service of a schedule of deficiencies could be served after expiry of the sub lease, the breach itself must relate to the period pre-expiry.

Submissions for the pursuers

[9] On behalf of the pursuers Mr Logan sought to have the case sent for proof before answer under deletion of certain of the defenders' averments which were claimed to be irrelevant. He explained that the fundamental point was an argument about the construction of clause 2.5 of the Minute of Agreement. In particular, the expression "if so required" was central to the argument. The question was whether the mid landlord had to require the tenant to remove the works by serving written notice prior to the expiry of the sub lease. In Mr Logan's submission the Minute of Agreement "stands on its own". Thus the notice provisions of the sub lease do not apply to it. Pointing to the averments in article 3 of Condescendence counsel argued that it was sufficient for the requirement in terms of clause 2.5 of the Note of Agreement to be made orally. It was averred that the pursuers had instructed Colliers, Chartered Surveyors to prepare a schedule of dilapidations. Colliers had contacted the defenders on 22 December 2008 with access ultimately being given to them in the week commencing 5 February 2009 to ascertain the extent of the works to be undertaken. The fact that the schedule of dilapidations was received after the expiry of the sub lease did not matter. Mr Logan did not dispute that in order to plead a relevant case the pursuers had to show that they had required the defenders to remove the works prior to the expiry of the lease. He pointed out that clause 2.5 used the word "required" in contrast with the notice provisions of clause 5.8 of the head lease which used the words "notice, request, demand or consent". So long as it was shown that the defenders had been put on notice by Colliers prior to the expiry of the lease that they were required to remove the words in accordance with clause 2.5 that would be sufficient.

[10] In the course of his submissions, Mr Logan accepted that there was no averment in terms offering to prove that the pursuers had required the defenders prior to the expiry of the lease to remove the works. During the course of the discussion he tendered a Minute of Amendment at the bar (No. 19 of process) narrating the terms of a conversation on 22 December 2008 during the course of which it was said that intimation was given of the requirement to reinstate the premises on departure in February 2009. For reasons given below, notwithstanding the opposition of Mr Lindsay, I allowed the Closed Record to be amended in terms of that Minute of Amendment.

[11] In developing the argument that written notice was not required, Mr Logan contended that the Minute of Agreement was a contract that required to be looked at for its terms. In construing the contract it had to be noted that clause 2.5 made no reference to notice in writing. He argued that the powers granted to the pursuers in relation to the removal of the alterations were limited to the terms of the Minute of Agreement. Only the obligations of the sub tenant were incorporated in the sub lease by clause 5 of the Minute of Agreement. Clause 7 simply continued the whole terms of the sub lease to apply as a separate document. In order to accede to the defenders argument, the court would have to be satisfied that "if so required" required notice in writing. It was submitted that no argument had been presented that "notice in writing" was an implied term of the contract. It was submitted that, at least following the Minute of Amendment, the pursuers had pled in terms that requirement to remove the works was conveyed on a particular date, namely 22 December 2008. It was submitted that the telephone conversation averred to have taken place on that date was sufficient to insist on the pursuers' right to recover the cost of the alterations. The court could not impose formalities of notice that are not in the agreement between the parties. Accordingly, if I was not satisfied that written notice was required, than a proof before answer should be allowed.

[12] In relation to the argument about the external walls, counsel submitted that in terms of clause 1.1 of the sub lease the premises were designed by reference to a plan and the offices comprising the subjects were shown outlined in yellow on that plan. The definition of an outline is that it comprises the lines, real or apparent by which a figure is defined or bounded in the plane of vision. Accordingly, it was said that the interior walls which would be party walls separating the subjects of the sub lease from other premises would be common parts. The exterior wall must be the responsibility of the sub tenant whereas the interior walls insofar as they separate the premises from the retained premises would be the sub-tenant's responsibility only to the extent of 21%. If the exterior walls were intended to be the landlords' responsibility then no doubt the sub-lease would have stated that. Reference was also made to clause 3.14 of the head lease which required decoration of the outside parts of the building. The pursuers esto case was a fall back position in the event that clause 2.5 was thought not to apply because notice in writing was required. It was a claim for repair costs that had nothing to do with the works in the Minute of Agreement. It was contended further that the defenders argument that clauses 3.14 and 3.15 would apply would be relevant only if the defenders had asserted that they had decorated on a particular date prior to the expiry of the sub lease. There were, however, no such averments. The defenders cannot say that there is no obligation to repair and redecorate. It was submitted that on both the issue of whether the pursuers required the defenders prior to the expiry of the sub lease to remove the works and on the issue of the various rectification costs if they had not, a proof before answer should be allowed.

Reply on behalf of the defenders

[13] Senior counsel for the defenders responded to the contention that oral notice was sufficient in terms of clause 2.5 of the Minute of Agreement. He reiterated that clause 7 of the Minute of Agreement ratifies the sub lease which in turn has the notice provisions. It was clear from clause 2.5 of the Minute of Agreement that the pursuers were obliged to convey to the defenders that they were required to remove the works. It was clear that the notice provisions would apply to that requirement. The Minute of Agreement was an amendment of the sub lease in terms of which the pursuers gave their consent, on certain terms and conditions, to the works.

[14] It was submitted that the further amended pleadings on the part of the pursuers were still irrelevant. First, there were no averments that those named in the now amended pleadings as having conveyed the requirement to the defenders would have had the necessary authority to give or receive the necessary intimation. Secondly, given that the pursuers' counsel had accepted that the defenders had to be required to remove the works by the pursuers prior to the expiry of the lease, the averment inserted by amendment did not go far enough. It seemed to suggest that the defenders "would be required" sometime in the future rather than that they were being required in December 2008. Thirdly, there was a mismatch between the language of the amended pleadings. It had been said that the defenders had been told that what was required "reinstatement to original condition" and the terms of the agreement which required them to "dismantle and remove the works and to reinstate ....". Even if it could be said that written notice was not required, the conveyance of the requirement would still require to be in clear and unambiguous terms.

[15] On the esto case of the pursuers it was contended that the sub lease did not impose any free standing obligation. It was reiterated that clause 5.1 was only a relieving obligation quoad the pursuers during the currency of the sub lease. One required to look to see what the obligations of the landlord were under the sub lease and work out what relief was being sought. The time frame for redecoration in the lease was important. It would be for the pursuers to aver that redecoration had not been carried out for the requisite period. There was no free standing obligation to put the subjects in good and tenantable condition, only to relieve the landlord of that during the currency of the lease. It was clear from the schedule of dilapidations (No. 6/8 of process) that Colliers had treated the issue as if the contract had been a traditional full insuring and repairing lease, which it was not. Thus the esto case was also fatally flawed and the action fell to be dismissed.

Further reply for the pursuers

[16] Mr Logan asked to respond further to Mr Lindsay's reply. He contended that the Batt Cables case did not assist the pursuers at all, that its ratio was simply that where there were specific provisions for notice, they had to be strictly applied. So far as the esto case was concerned, if the defenders position was that they decorated in 2008 and thus could be relieved of the obligation to do so at the end of the lease, it was for them to say so. It was for them to plead that the obligations under clause 3.12 were restricted.

Discussion

[17] The primary issue for determination at this stage is whether or not clause 2.5 of the Minute of Agreement of 30 December 1998 should be interpreted as meaning that a mid-landlord requiring a sub-tenant to dismantle and remove the works that are the subject of that Minute of Agreement must, prior to the expiration of the sub-lease, convey that requirement by notice in writing. It is not in dispute between the parties that intimation of the mid-landlords requiring the sub-tenants to remove the works in terms of that clause had to be given before the expiry of the sub-lease. It is not contended by the pursuers that a document sent by them on 17 February 2009 and received by the defenders on 20 February 2009 constituted intimation of the requirement to remove in terms of clause 2.5. Rather, the pursuers contend that intimation of the requirement could be given orally rather than by notice in writing.

[18] There are four documents that regulated the relationship between the parties to this action prior to the expiry of the sub-lease on 18 February 2009. These are:-

1. The head lease dated 18 and 23 October 1995, (No. 6/2 of process).

2. The extract registered sub-lease between Jokyle Holdings Limited and North Lanarkshire Council dated 16 April 1998 (No. 6/1 of process).

3. The extract registered Minute of Agreement between Jokyle Holdings Limited and North Lanarkshire Council dated 30 December 1998 (No. 6/2 of process).

4. Minute of variation between the parties dated 15 April, 23 June and 3 July 2008 (a copy of which is No. 6/5 of process).

The notice provisions in the head lease are contained within clause 5.8 of that document. It provides, inter alia, that "any notice, request, demand or consent shall be in writing". That is a mandatory term of the lease. Clause 5.8 also contains various provisions in relation to deemed sufficient service of notices but these are not of central importance to the present case. The provisions for notices contained in clause 5.8 specifically apply to the parties of the sub-lease by virtue of clause 13 of that sub-lease. Accordingly, if any provision can be interpreted as requiring a notice falling within the descriptions in clause 5.8 then there can be no doubt that that notice requires to be in writing. The Minute of Agreement between Jokyle Holdings Ltd, in whose shoes the pursuers now stand, and North Lanarkshire Council is a contract entered into pursuant to clause 5.7 of the sub-lease. It is, however, a separate contract, duly registered in the Books of Council and Session. The relationship between the Minute of Agreement and the sub-lease is explained by clause 7 which provides:-

"Except insofar as amended hereby the parties ratify and confirm the whole terms of the sub-lease".

[19] Accordingly, unless the Minute of Agreement provides for a specific amendment to or departure from the terms of the sub-lease the general provisions of that sub-lease continue to regulate the relationship between the parties. Thus if a notice requires to be served in terms of the Minute of Agreement it may well be that the notice provisions of the lease, incorporated into the sub-lease, will apply. An example of this can be seen in clause 3 of the Minute of Agreement. It provides for the possibility that there may be a breach of the undertakings and obligations on the part of the sub-tenant before the completion of the works being permitted by the Minute of Agreement. In that event, a notice specifying the breach complained of would require to be sent by the mid-landlord to the sub-tenant. It may be inferred that such a notice would require to be in writing. However, the wording of clause 2.5 which obliges the sub-tenant "if so required by the mid-landlord to remove the works" makes no mention of a notice. The means by which the sub tenant can be so required are not specified. In my opinion, it cannot be said to be a mandatory term of the Minute of Agreement that the mid-landlords convey in writing to the sub-tenants the requirement to remove the works unless can be implied that service of some form of notice or request is part of that term. If written notification of the type envisaged in clause 5.8 of the head lease cannot be so implied, then clause 2.5 would seem to me to permit the pursuers to offer to prove that they required the defenders to remove the work by conveying that to them orally. I note in this context that the notice provision in clause 5.8 of the head lease contains no general words suggesting that any communications between the relevant parties require to be in writing. In accordance with the maxim expressio unius est exclusio alterius intimation that does not require to be by notice, request, demand or consent does not on the face of it require to be in writing because only those specified types of intimation fall within the specific wording of clause 5.8.

[20] It seems to me that the defenders argument is predicated upon a notice being necessary for the purposes of clause 2.5. However, there is nothing in that provision of the Minute of Agreement to support the contention that something formal is necessary before the sub-tenants can be required to remove the works. For that reason I do not accept the submission that the notice provisions of the lease automatically apply to the "if so required" provision of clause 2.5. The question then becomes whether the pursuers have averred a relevant case that they required the defenders, prior to the expiry of the sub-lease, to remove the works and re-instate the premises restoring them to their appearance at the date of entry. It is within that context that counsel for the pursuers required to move his Minute of Amendment, No. 19 of process, during the procedure roll discussion. At the outset of the debate there were no averments whatsoever by the pursuers in terms of which they offered to prove that they had required re-instatement of the premises prior to the expiry of the sub-lease. It seemed to me to be in the interests of justice to allow the pursuers to amend if they had evidence of such a requirement having been conveyed.. The amendment was accordingly necessary to focus the real issue in controversy between the parties. The terms of the amendment that I allowed are as follows:-

"On 22 December 2008 Mr Colin McManus of the said firm contacted Angela McCance of the defenders. He firstly sought confirmation that the defenders were intending to depart from the premises in February 2009. She confirmed that that was the case. He then advised that they would therefore require access to prepare a schedule of dilapidations and that the pursuers would be requiring reinstatement of the premises to their original condition. She advised that she would facilitate access."

These averments, while still the subject of some criticism by senior counsel for the defenders, do at least specify the date on which a surveyor instructed by the pursuers is said to have intimated to an employee of the defender that re-instatement of the premises would be required and aver that such intimation was given prior to the expiry of the sub-lease. The averments are just sufficient, in my view, to entitle the pursuers to a proof before answer on the question of whether or not they conveyed to the sub-tenants in terms of clause 2.5, prior to the expiry of the sub-lease, a requirement to dismantle the works. I accept that intimation would require to be clear and unambiguous and that the specific terms of it require to be proved. If there was appropriate and timeous intimation, then there is no dispute that the sub-tenant would be in breach and that the appropriate remedy would be the claim in damages made by the pursuers. Both counsel accepted that no question of specific implement arose and that the reality in such situations was that, so long as the requisite intimation was made timeously, there was no question of the sub-tenants being asked to return to the subjects of let to carry out the works. The remedy sought by the pursuers is appropriate and consistent with the views expressed in Clyde Port Properties Ltd v Shell UK Ltd [2007] CSOH 92 and PIK Facilities Ltd v Shell UK Ltd and BP Oil UK Ltd [2005] CSOH 94.

[21] So far as the question of whether the pursuers require to aver that those mentioned in the Minute of Amendment had the necessary authority to give or receive the intimation in question, I consider that the case of Batt Cables plc v Spencer Business Parks Ltd 2010 SLT 860 may not be directly in point. In that case, there was no dispute that the break notice in question required to be in writing and served on the landlords. The pursuers had failed to serve the notice direct on the landlords but had served it on a person who had authority to act as the defenders' agents, that agent having authority to receive the notice. In this case, there are averments that the firm of surveyors who are said to have telephoned an employee of the defenders were instructed by the pursuers. The intimation is said to have been given to a named employee of the defenders. I was informed that Ms McCance was a surveyor in the defenders' employment. As I have decided that the terms of clause 2.5 of the Minute of Agreement leave room for informal intimation, questions of authority to accept service of notices do not arise in the same way that they did in Batt Cables. I cannot say at this stage that appropriate intimation could not be given by speaking with a professional employee of the defenders. It seems to me that until the averments of the pursuer in relation to the conversation of 22 December 2008 are tested at proof, no definitive answer can be given to the question of whether any intimation of the requirement given was sufficient and appropriate. Accordingly, I consider that a proof before answer is required before that issue can be determined.

[22] So far as the parties esto cases are concerned, those depend to some extent on the outcome of the principal question on which I consider evidence is required before determination. Some of the arguments relate to the schedule of dilapidations which has been lodged but which will require to be spoken to in evidence. Questions of the extent of any obligations on the defenders can best be answered after the nature and extent of the dilapidations and the relative quantification is proved.

Decision

[23] For the reasons indicated above, I consider that the pursuers have now, following amendment, pled a relevant case that they intimated a requirement to remove the works referred to in the minute of agreement prior to the expiry of the sub-lease. I shall order a proof before answer of the parties' respective averments on record, reserving meantime all questions of expenses.