Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN & BORDERS   Case Number: A780/11
	Judgment by   SHERIFF PRINCIPAL MHAIRI M STEPHEN   In the cause   GEOFFREY (TAILOR) HIGHLAND CRAFTS LIMITED Pursuers & Appellants   against   G L ATTRACTIONS LIMITED Defenders & Respondents     _______________________

 

 

 

Act: Patterson, Tods Murray LLP, Solicitors, Edinburgh

Alt: Webster, Advocate, instructed by Wright Johnston & Mackenzie LLP, solicitors, Edinburgh

 

 

 

 

EDINBURGH, 11 October 2011

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 8 August 2011; finds the pursuers and appellants liable to the defenders and respondents in the expenses occasioned by the appeal; allows an account thereof to be given in and remits same, when lodged, to the Auditor of Court to tax and to report; certifies the appeal as suitable for the employment of junior counsel.

 

(signed) Mhairi M Stephen

NOTE:

 

1. In this initial writ the pursuers and appellants (hereinafter referred to as the "appellants") crave the court (1) to interdict the defenders or anyone on their behalf from placing any obstruction, table, stall, stand or display unit on the common area of the main entrance on the ground floor (known as level 4) to the subjects at 555 Castlehill, Edinburgh and (2) without prejudice to the foregoing generality to interdict the respondents from carrying on any trading activities from the said common area of the main entrance on the ground floor.

 

2. By interlocutor of 8 August 2011 the sheriff refused the appellant's motion for interim interdict. The sheriff heard parties on the appellants' motion on 4 August and continued the hearing over the weekend until 8 August 2011 when the sheriff was addressed further on the matter of the fire certificate and, in particular, whether the certificate of building warrant attached a condition that the entrance area to 555 Castlehill required to be an empty or sterile area.

 

3. The sheriff, having considered parties submissions refused to grant interim interdict. He did so because the appellants had not made out a prima facie case of a wrongful act on the part of the respondents. That being so, the sheriff did not require to consider the arguments advanced by both sides relating to where the balance of convenience lay. The sheriff deals with this in the final paragraph of his note.

 

4. On 12 August 2011 the appellants lodged a note of appeal against the sheriff's interlocutor of 8 August 2011; the sheriff prepared a note dated 18 August 2011 and the hearing of the appeal duly took place on Monday 3 October 2011.

 

BACKGROUND

5. The appellants are tenants and the respondents are the landlords of premises at 555 Castlehill, Edinburgh. Both the landlords and tenants have business and retail operations at 555 Castlehill. The sheriff deals briefly with these arrangements at paragraphs 2 and 3 of his note.

 

6. The leases relating to 555 Castlehill have been lodged and the plans attached to these leases give an indication of the layout of the entrance foyer as one enters the premises at 555 Castlehill. The area which is central to the dispute is indeed the entrance area which is shown on the plan attached to the lease (5/1 of process). It is known as level 4. The premises are set over out five levels with level 4 being accessed directly from street level. Levels 1 to 3 lie below level 4 and are accessed via stairs (stair 1 on the plan) which lead down from level 4. Level 5 on the floor above is accessed via stairs (stair 2 on the plan) from the entrance foyer.

 

7. In terms of the leases the appellants have a right in common with the landlords and occupiers as follows:-

"A right in common with the landlords and tenants and occupiers of the building or other premises within the building to use the service entrance in the sub-sub-basement (but that for service access and egress only for goods), and the main entrance on the ground floor known as level 4, the entrance hall, staircases, fire escape, passages, corridors, escalators and lifts (if any) of the building as a means of access to and egress from the leased premises."

 

8. The respondents have for some years traded from the main entrance area at the ground level (level 4). The appellants now consider that by doing so the respondents are in breach of their obligations under the leases. The appellants do not seek interim interdict on the ground that the appellants are in breach of their obligations under the lease however.

 

9. Both parties have produced and lodged photographs which show the entrance area being used to display and sell Scottish wares. For the purpose of the appeal hearing it was accepted that both sets of photographs depicted the area which is the subject of the dispute and the photographs lodged by the respondents were the most recent and show the area with fewer stalls and display cabinets and much more clear space in the entrance area.

 

APPELLANTS' CASE

10. The appellants' solicitor confirmed that the basis upon which his clients seek interim interdict is restricted to the issue of fire risk. The legal basis is set out in pleas-in-law 2 and 3 as follows:

2. The defenders trading activity in the main entrance constituting a fire risk, the pursuers have reasonability for the safety of their customers and employees as occupiers of the said subjects in terms of the Occupiers Liability (Scotland) Act 1960 and as employers and customers in terms of the Fire (Scotland) Act 2005, interdict should be granted as craved.

3. Having regard to the balance of convenience interdict ad interim should be granted as craved."

 

11. The averments of fact in support of interim interdict as set out in Article 5 of Condescendence. Further averments of fact are found in Condescendences 3 and 4. The tenants' obligations under the Fire (Scotland) Act 2005 are referred to and relied upon. The appellants must ensure the safety of its employees in respect of harm from fire in the workplace which would include the common main entrance. Thus the appellants are entitled to seek interim interdict.

 

12. The appellants' contention is that the whole entrance area ought to be a sterile area free from retail trading impediments and other obstructions. The appellants rely upon a fire risk assessment carried out by Borders Fire Safety Services Limited and the affidavit of the author of the risk assessment, Mr Alan Forrest. In particular, as the sheriff has noted, Mr Forrest, the assessor, has alerted the appellants to the inadequacy of the means of escape from fire. Paragraph 6 of the report states: "Entrance foyer has been changed from a protected route (sterile area) to a retail unit". Furthermore, in his affidavit Mr Forrest states at paragraph 4 "So far as 555 Castlehill is concerned the main entrance at level 4 constituted a major route for a number of exits in the case of fire. This was essentially meant to be a sterile area that is containing no obstructions or flammable material.". Furthermore, the appellants rely upon a copy of a letter from the City of Edinburgh Council dated 16 May 2011 which advises the defenders of its concerns about the permitted use of the entrance foyer at 555 Castlehill, Edinburgh. Finally the appellants place reliance on the fire certificate and associated plans and notations which can be found in the appellants' third inventory of productions numbered 12, 13 and 14.

 

13. The appellants' contention is that the entrance area shown on the plans and depicted in the photographs ought to be a sterile or protected area for the purpose of ensuring safe passage to outside in the event of fire. Numerous stairways and fire exits lead into the entrance and therefore the area ought to be clear of impediments and encumbrances including retail paraphernalia which might impede access. This is essentially the same argument that was presented to the sheriff.

 

14. The appellants' solicitor sought to construe the fire certificate, and the key to the plans in such a way as made it evident that the area which is shaded yellow in the plans (13D) was to be a clear area. The description of the area can be found in the appendix to the plans, sheet 6 of 7. Special significance was given to that part of the description which states "Where the boundary of this area is in the open air, the escape route to a place of final safety shall be kept free from obstruction at all times". This passage read along with the definitions from technical standards issued by the Scottish Executive for compliance with the Building Standard Regulations 1990 (No 16 of process) pointed to the requirement that the entrance area be kept free from obstruction at all times and therefore ought to be an empty or sterile exit/entrance area.

 

15. The appellants' submission was that the trading paraphernalia of the defenders in the entrance area constituted a fire safety risk and the appellants were entitled to interim interdict given their obligations to comply with the relevant statutes including the Occupiers Liability Act 1960 and the Fire (Scotland) Act 2005. It was argued on behalf of the appellants that the sheriff erred in failing to recognise the prima facie case pled on behalf of the appellants entitling them to interim interdict.

 

16. The appellants having averred a relevant case and a prima facie case entitling them to interdict and therefore interim interdict, it remained for the sheriff to decide where the balance of convenience lay. It was the appellants' submission that the balance of convenience in effect involved him considering the compelling argument that risk to public safety posed by the defenders activities outweighed the potential commercial prejudice to the defenders. The risk to the safety of the public should far outweigh commercial interests and the balance of convenience would thereby favour the appellants. In any event, if the appellants did not succeed in persuading the court ultimately of their entitlement to interdict the respondents would have a remedy in damages against the appellants.

 

RESPONDENTS' CASE

17. In response counsel for the respondents suggested that the appellants had not adequately made out any case to suggest that the sheriff erred in law and accordingly the appeal should be refused and the sheriff's interlocutor adhered to. The sheriff had failed to find that the appellants' pleadings demonstrated that they had a prima facie case for interdict of the defenders. Mr Webster pointed out that the inferences which the appellants sought to draw from the documentary evidence available to the court were not supported by a close scrutiny of the documentary evidence. The appellants contend that the fire risk assessment and the affidavit of Mr Forrest point clearly to the entrance requiring to be a clear or sterile area. Mr Webster pointed out that as the sheriff has observed there is a conflict between the report and the affidavit and the sheriff was perfectly correct to find that the documentary evidence did not support the contention that the area must be clear or sterile. The fire risk assessment is explained in the action plan and at page 10, paragraph 7 the following refers to the entrance foyer.

"The entrance foyer which is part of the protected route from all floors has been changed from a sterile area to a retail unit and should be cleared of all combustible material and storage and thereafter maintained free from storage and obstruction at all times."

 

18.              Mr Webster pointed out that this did not support the entrance foyer being a clear area. There is a significant distinction to be made between requiring that combustible material and storage be removed compared with the area being kept sterile and free from all evidence of retail. I was reminded that the affidavit of Mr Forrest does not match his report.

 

19.              Mr Webster furthermore, submitted that the appendix to the fire certificate in so far as it relates to the entrance foyer is not susceptible to the interpretation argued for by the appellants. In particular, the fire certificate, the drawings and the key do not refer to sterile area. The descriptive part in the appendix to the plans at sheet 6 of 7 refers to the escape route to a place of safety. The escape route and the place of final safety are intended to be outwith the entrance foyer and outwith the premises altogether.

 

20.              Mr Webster accepted that the tenant had certain obligations imposed under the lease which of course pre-dated the Fire (Scotland) Act 2005. However, the case pled on behalf of the appellants did not identify any legal wrong on the part of the respondents which would entitle the appellants to the remedy they seek. The appellants argued in front of the sheriff that they were obliged to ensure that the entire area of the entrance foyer was rendered sterile in terms of their obligations under the lease. This is not only a distortion of their obligations under the lease but it is an argument that the sheriff clearly rejected at paragraph 12 of his judgment. Mr Webster repeated the analogy of the Marks and Spencers shop floor. These trading areas did not require to be clear of clothing or whatever in order to afford a proper escape route for customers and employees. This was the nub of the decision and the sheriff was entitled to take account of the practicability of requiring an area to be completely devoid of any retail paraphernalia.

 

21.              Finally, with regard to the balance of convenience argument it was submitted on behalf of the respondents that the balance of convenience favoured refusal of interim interdict. The current trading situation at 555 Castlehill which had existed for some time has to be set against the powers which the enforcing authorities have with regard to breaches of building warrant conditions. It is noted that the enforcing authority being the City of Edinburgh Council had not taken any action and indeed were in the course of considering an amendment to the building warrant relating to the permitted use of the level 4 entrance as applied for on behalf of the defenders. The Council were in the course of considering this and had not suggested taking enforcement action. Against that background it was difficult to see that there were compelling reasons which favoured the balance of convenience favouring an award of interim interdict.

 

DECISION

22.              In my opinion, the submissions of the respondents on the matter of the meaning and interpretation of the fire certificate and its associated plans and appendices is to be preferred. In particular, it appears to me that the meaning of the final paragraph in sheet 6 of 7 of the appendix to the certificate interpreted along with the definitions (lodged as Production 13 for the appellants) is the meaning proposed by the respondents, namely that the escape route referred to was intended to be a route external to the building or outside in the open. Nowhere in the documents which constitute the fire certificate and its associated appendices is there any reference to a "sterile area" or indeed the requirement that the entrance area of level 4 (shaded yellow on the plan d) be completely free and clear of all items relating to trading or indeed relating to any other purpose. Had the fire authorities required the area to be kept entirely clear it would have been a fairly straightforward matter to identify that area as a clear zone by making appropriate markings or hatching on the plans.

 

23.              Furthermore, assistance can be derived from the 2011 fire risk assessment (5/4 of process). At paragraph 6.2 it states "Comments and deficiencies observed. The entrance foyer has been changed from a protected route (sterile area) to a retail unit".

 

24.              This assessment was commissioned by the pursuers. Mr Forrest, who undertook the assessment, makes a number of negative comments on the adequacy of the pursuers' compliance with fire safety legislation. The assessment is completed in part using a template with an action plan giving more detail attached. It is noted that the assessment includes a section on the previous action plan and lists previous recommendations not yet implemented including "3. Retail unit in protected route at main entrance".

 

25.              The new action plan at no 7 states:-

7. The entrance foyer, which is part of the protected route from all floors, has been changed from a sterile area to a retail unit and should be cleared of all combustible material and storage and thereafter maintained free from storage and obstruction at all times. (Has the local authority approved a change of use for this area?)". This is rated as high priority.

 

26.              Accordingly the action required is "clear all combustible material and storage and thereafter maintain free from storage and obstruction at all times".

 

27.              The affidavit of Mr Forrest who prepared the report is not evidence which supports the proposition that the entrance must be completely clear at all times. He states "This was essentially meant to be a sterile area that is containing no obstructions or flammable material." That definition of sterile does not impart to me a meaning from which I should infer that it must be a completely clear area but rather one clear of obstructions or flammable material.

 

28.              Accordingly, the sheriff was entitled to take the view he did namely that it is not required that the entrance hall had to be emptied (paragraph 12 of his note).

 

29.              I agree that what is required are unobstructed escape routes through the entrance hall. It is not necessary to answer Mr Paterson's hypothesis of how wide or narrow the route should be. That will depend on the context and therefore the facts and circumstances. It is noted that the fire certificate and plans designate other routes such as stairs in a similar manner.

 

30.              The question is whether the sheriff erred in finding that the appellants had failed to make out a prima facie case against the respondents in respect that the respondents' trading constituting a fire risk and the fire certificate required the entrance area to be a clear zone. For the reasons I have given I do not consider that the appellants have shown that the learned sheriff erred in the approach he took to the matter of whether the appellants had established a prima facie case against the respondents. The learned sheriff was entitled to reach the view he did and was correct to refuse the appellants' motion for interim interdict.

 

31.              That being so I no longer require to consider the question of the balance of convenience. The sheriff has made certain comments on the matter of balance of convenience. It is only necessary to consider the balance of convenience and weigh that up if the party seeking interdict has established a prima facie case. The arguments advanced on behalf of the respondents at the appeal on the matter of balance of convenience were compelling arguments. The total absence of enforcement action by the authorities either in a positive (enforcement notice) or negative (prohibition notice) fashion are important considerations in considering where the balance of convenience lies. Furthermore, as I have observed the issue of the respondents trading in the entrance hall and the impact that may have on the fire risk assessment has been known for some time and certainly before the 2011 fire risk assessment.

 

32.              For all of the foregoing reasons I am satisfied that the sheriff reached the correct decision and I have therefore refused the appeal. It was agreed that expenses would follow success and I have therefore made an award of expenses in favour of the respondents in respect of the appeal proceedings and the hearing. It was a matter of agreement that the appeal is suitable for the employment of junior counsel and I will so certify.