Outer House judge rules tenant of pharmacy entitled to remove own fixtures at termination of lease

By Mitchell Skilling

David Tanner, who previously operated pharmacies trading as David Tanner Ltd, argued that E Moss Ltd, part of the Boots group, had not been entitled to remove items from the subjects under the terms of the lease. The defender had left the premises as a shell at the conclusion of the lease in August 2018.

The case was heard by Lord Ericht. Thomson QC appeared for the pursuer and Massaro, advocate, for the defender.

Significant windfall

Prior to the commencement of the lease, companies within the Boots group, including the defender, took over chemists previously operated by the pursuer’s company. The company sold the premises to the pursuer, who then leased them to the defender. As part of this arrangement, in 2003 the parties entered a fifteen-year lease of a chemist’s shop in Hamilton ending on 31 August 2018.

The defender did not vacate the premises until 19 December 2018 and left the premises as a shell. The pursuer invited the court to conclude that on a proper construction of the lease, the defender had no right to remove its fit out from the subjects, or alternatively that such a right expired at the end of the lease on 31 August 2018.

Counsel for the defender submitted that the lease did not disapply the common law which entitled them to remove their moveables and trade fixtures. They argued that no landlord’s fixtures existed at the start of the lease as any fixtures had all been owned by David Tanner Ltd rather than the pursuer, who stood to obtain a significant windfall if he had a right to insist on a fitted out pharmacy provided to him.

It was conceded by the pursuer that what constituted a tenant’s fixture was a question of fact and enquiry might be necessary. However, if the tenant’s fittings were not removed during the term, they were irrevocably ceded to the landlord. On a proper construction of lease, it was entirely a matter for the pursuer whether any trade fixtures and fittings were to be removed or left, with the contractual language being more than adequate to disapply any common law rules.

Not excluded

In his opinion, Lord Ericht observed: “The defender accepts that it was wrong to reduce the premises to a shell. It accepts, for example, that it was wrong to remove items such as an air condition system, partition walls forming a 10 consultation room, a CCTV system, sinks and basins, water heaters, power installations, IT cabling and the amount due in damages in respect of such items is agreed in the Scott schedule.”

Addressing whether the tenant was entitled to remove moveables, he said: “Prior to the transaction, the premises and the moveable items within it were owned by the Company. The disposition of the premises by the Company to the pursuer carried with it any items which had acceded to the heritage and had therefore become heritable themselves. It would not carry within it any moveable items which had not acceded, and any such moveable items would remain as the property of the Company when the defender purchased the shares in the Company.”

Turning to the classification of the fixtures, Lord Ericht said: “The lease makes no specific provision as to whether or not the tenant is entitled to remove tenant’s fixtures. It provides only that the landlord may require the tenant to remove its fit-out. ‘Fit-out’ is not defined. I agree with senior counsel for the pursuer that it means tenant’s fixtures.”

He continued: “The Landlord’s option in clause 2(8) to require the tenant to 14 remove tenant’s fixtures is no more than a mechanism to enforce the common law by compelling the tenant to remove the tenant’s fixtures and reinstate the premises. If the option is not exercised that does not mean that the common law is excluded but merely that the landlord has chosen not to operate that mechanism.”

Lord Ericht concluded: “Tenant’s fixtures may be removed within a reasonable time of expiry of the lease. What is a reasonable time will depend on the circumstances, and there must be a point of time beyond which a right to remove tenant’s fixtures of recovery is lost because it must be presumed that that right has been given up. The pursuer does not aver an esto case that the removal was not within a reasonable time. I find that the defender was entitled to remove tenant’s fixtures between the expiry of the lease on 31 August 2018 and the cessation of occupation on 19 December 2018.”

The case was thereafter put out by order for discussion of the appropriate interlocutor to give effect to Lord Ericht’s decision.

Advocate Niall McCluskey dies at 53

By Kapil Summan, editor

Mr McCluskey obtained his LLB and diploma from the University of Aberdeen and called to the bar in 1995, having been in private practice as a solicitor and a procurator fiscal depute.

He was involved in hundreds of cases, prosecuting and defending at all levels. He also had significant experience of extradition cases and a particular interest in human rights with respect to both criminal law and extradition.

He was the nephew of the late Lord McCluskey, a distinguished judge and peer.

Roddy Dunlop QC, Dean of Faculty, told Scottish Legal News: “I am distraught at the passing of Niall McCluskey, a talented member of the Scottish bar.

“Niall was well-known, particularly to those practising in the criminal courts. He was well-instructed and popular, with a keen interest in training the next generation of lawyers. Following on so quickly after other losses, this is hard to bear.”

Mr McCluskey’s stable, Optimum Advocates, told SLN: “We are all utterly devastated at the loss of Niall. Niall was a lovely, caring man who will be sorely missed by us all. He was a true asset to our stable. Our thoughts are with his family at this very sad time.”

Councils have absolute duty to provide suitable temporary homeless accommodation

The Court of Session has ruled that local authorities are under an absolute legal duty to provide suitable temporary accommodation for homeless households in Scotland, that must meet the needs of disabled children.

The central issue in the judicial review of X v Glasgow City Council was whether a local authority was under an absolute legal obligation to provide accommodation suitable for occupation by a homeless household, taking into account the needs of a household.

The petitioner said it was. The respondent said it was not: the respondent had a discretion to balance the needs of the household against other demands on the respondent’s finite resources.

Lord Ericht found in favour of the petitioner. The case concerned The Homeless Persons (Unsuitable Accommodation) (Scotland) Order 2014, the Housing (Scotland) Act 1987 and the Equality Act 2010. GLC believes this decision is one of the most significant reported homelessness decisions in Scotland in the last twenty years.

The petitioner was represented by GLC’s solicitor advocate, Mike Dailly, instructed by Govanhill Law Centre with Laura McDonagh, partner, Drummond Miller LLP as Edinburgh agents. The respondent was represented by Graham Middleton, advocate, instructed by GCC with Harper Macleod LLP as Edinburgh agents.

GLC’s prevention of homelessness manager, Wendy Malloy said: “This is an excellent decision in favour of our client, but this will also impact more widely for all of the other homeless families affected in the same way in Glasgow and Scotland. Many large families are being kept in temporary accommodation far too long due to a lack of suitably sized permanent housing. It is clear from this case that the needs of these families and especially those with disabled children cannot be ignored”.

With respect to duties under the 1987 Act and 2014 Order Lord Ericht said: “The issue in this case is whether section 29 taken together with Article 4(1) (b) constitute an absolute duty on the respondent, or whether the respondent has the freedom not to give effect to these provisions.”

He added: Section 29 states the local authority ‘shall secure that accommodation is made available’. Article 4 of the 2014 Order states that ‘in all circumstances, accommodation is unsuitable if [the circumstances in 4 (a) (b) or (c) apply]’. In my view the specific and precise wording of these provisions is a strong indication that they should be interpreted as imposing an obligation of an absolute character.”

The judge went on: “Accordingly, I find that the respondent is under an absolute duty to provide temporary accommodation to the petitioner which is suitable for occupation by the petitioner’s household, taking into account the additional support needs of the petitioner’s son. To put it in another way, the respondent is under an absolute duty to provide a five apartment property.”

Lord Ericht said: “As this duty is an absolute one, the respondent is not entitled to avoid compliance with its duty for reasons such as those set out in its letter of 10 August 2021 i.e. that it is reliant on third party providers or that there were significant pressures on resources. As Lord Nicholls made clear in the passage quoted above, a local authority is obliged to comply with an absolute duty regardless of whether or not it would prefer to spend its money otherwise: the authority has no choice.”

UK government accused of undermining free and fair elections

The Elections Bill will allow ministers to develop a strategy and policy statement for the UK’s elections watchdog, which must be laid before Parliament and approved by MPs and Lords.

The Electoral Commission itself wrote to ministers in February to set out its view that “the introduction of a strategy and policy statement – enabling the government to guide the work of the Commission – is inconsistent with the role that an independent electoral commission plays in a healthy democracy”.

It pointed out that the measures have “no precedent in the accountability arrangements of electoral commissions in other comparable democracies, such as Canada, Australia or New Zealand”.

The controversial provisions were reinstated by MPs earlier this week after being removed by the Lords on Monday. A second attempt to alter the bill, led by Lord Judge with support from campaign group Best for Britain, failed last night by 181-202.

Speaking afterwards, Naomi Smith, CEO of Best for Britain, said: “Tonight was the last chance to protect the independence of the elections watchdog and with it free and fair elections in the UK.

“Despite the enormous efforts of a cross-party, cross-organisational resistance to the government’s authoritarian power grab, tonight Johnson’s regime succeeded in its latest pursuit to dodge accountability.

“There is now an urgent need to remove this government and undo the damage they have wrought on our institutions and public trust in politics. Opposition parties must work together to make this a reality.”

EHRC: Action plan announced to tackle sexual harassment culture in hospitality

The Equality and Human Rights Commission (EHRC) and UKHospitality have worked closely together to produce a practical resource to stop the harassment of bar and restaurant staff being seen as ‘just part of the job’.

It advises venues to have consistent policies for dealing with customers who behave inappropriately around employees, including warning systems, instant removal or banning.

The resource also contains safety and preventative advice, such as asking managers to avoid having a single member of staff wait on a large group, when sexual harassment is more likely to take place.

The guidance has been developed for the hospitality industry but can be applied to any workplace.

More than half of women and two-thirds of LGBT people report experiencing workplace sexual harassment. But the problem is particularly acute in hospitality. The vast majority of bar and waiting staff say they have either experienced or witnessed inappropriate sexual behaviour. This can range from being asked whether they are ‘on the menu’ to full sexual assault.

Many hospitality staff experiencing harassment do not get management support. A 2018 EHRC report identified that sexual harassment and assault are viewed by some employers as a ‘normal’ part of a job in an environment where alcohol is consumed. One venue’s policy for dealing with stalking was simply to allow staff to hide in the back when the customer came in.

The new guidance - Preventing sexual harassment at work: checklist and action plan - helps venues to put appropriate structures in place to protect their employees. It defines sexual harassment as “anything that violates someone’s dignity or makes them feel intimidated, degraded, humiliated, offended or like they are in a hostile environment”.

The checklist will be hosted and promoted by UKHospitality, the leading industry body for the sector.

Marcial Boo, chief executive of the EHRC, said: “We are determined to crack down on any culture of unacceptable sexual harassment in bars, restaurants or hotels in Britain.

“All employers have a duty of care to their staff. This means that inappropriate behaviour, whether lewd jokes, sexist comments or wandering hands, should never be ‘just part of the job’, even when your customers have consumed alcohol.

“We welcome the co-operation with UKHospitality to produce this guidance to give managers the tools they need to tackle problematic behaviour and protect their staff.”

UKHospitality chief executive, Kate Nicholls, said: “There can be no place for sexual harassment within hospitality, so this new checklist and action plan to drive it out of our industry is a very welcome step in the right direction.

“UKHospitality has for some years engaged with employee organisations and the Health and Safety Executive to discuss solutions to safeguard hospitality staff, particularly those in potentially vulnerable roles, but clearly more needs to be done if we’re to rid ourselves of inappropriate and unwanted workplace behaviour.”

The news comes ahead of the publication of the government Equality Hub’s sexual harassment guidance.

The EHRC has previously taken action to tackle harassment in the workplace by signing legally-binding agreements with Sainsbury’s, Paradigm Precision and Highways England, committing the organisations to action plans which will protect their staff.

Families of Covid victims moot legal action in wake of English ruling

The news follows a ruling of the High Court in London that the UK government’s failure to isolate people released from hospitals to care homes without testing early on in the pandemic was illegal.

Scotland had a similar policy and more than 1,300 elderly people were sent to care homes before a testing system was in place.

Aamer Anwar, solicitor for the Scottish Bereaved Families for Justice, said the policy had “operated as a Petri dish for the spread of the Covid-19 virus”.

In a statement on behalf of the Scottish families, Mr Anwar said they were considering legal action over fears that Lady Poole, chair of the independent Scottish inquiry examining the strategic response to the pandemic in Scotland, might not properly investigate care home deaths.

He said the families had “felt rushed and felt a lack of empathy” when they met the judge in January this year.

“In over three months the families feel that very little has happened in Scotland and this is deeply disappointing, whilst it appears that the UK inquiry is moving apace.

“This is not what the relatives campaigned for, nor was it what they were promised by the Scottish Government and Deputy First Minister John Swinney.

“There now appears to be an attempt to avoid scrutiny of this issue and thus avoid responsibility, following today’s High Court decision, that cannot be allowed to happen in Scotland. We will be considering in Scotland what further legal action can be taken against those responsible for the preventable deaths that took place in care homes.”

A spokesperson for Lady Poole’s inquiry said the main focus had been “to get the right people and systems in place to support its work”.

They said the quality of the investigations and consequent recommendations “depend on the inquiry having infrastructure to enable it to do its job”.

The spokesperson added: “Because it is an independent inquiry, those systems have to be set up from scratch. That process is ongoing and additional staff are being appointed to build the inquiry team to a level which reflects of scale of a pandemic which has affected all of the Scottish population.

“In its establishment period, the inquiry’s focus of necessity is building processes which will enable it to function efficiently and deliver its recommendations as quickly as possible.”

They added: “Lady Poole has already met a number of different organisations representing those affected by the pandemic, including bereaved families in January 2022.

“These meetings have been extremely important and informative and will help shape the inquiry’s investigations in the months ahead.

“The inquiry is independent of government and will carry out a fair, open and thorough investigation.”

Nigel Ross appointed as sheriff principal of Lothian and Borders

Sheriff Ross, who sits at Edinburgh Sheriff Court, will take up appointment from 2 May 2022.

Sheriff Ross qualified as a solicitor in 1988 and called to the bar in December 1991. His practice was mainly in the newly-established Commercial Court in the Court of Session.

He was appointed standing junior to the Department of Trade and Industry in 1999.

In 2003 he was appointed a part-time sheriff and in 2006 a full-time sheriff, initially at Glasgow Sheriff Court and from 2013 at Edinburgh Sheriff Court.

He is a designated commercial, extradition and personal injury sheriff and since 2017 has sat in the Sheriff Appeal Court.

Karen Wylie becomes accredited mediator

Karen Wylie joined the firm as a senior associate in January and is the latest family lawyer to become an accredited mediator.

She said: “Mediating a solution can provide more certainty than going into court. Of course, in the situation of a highly distressing issue such as domestic abuse, there is often no other option than going straight into litigation.”

“Slowly attitudes towards alternative dispute resolution and mediation are changing. This way of resolving disputes should not be ‘alternative’ but should be an integrated part of the dispute resolution process. The more amicable a divorce settlement can be, the better for everyone, particularly children.”

She added: “The training provided by CALM Scotland has provided me with a great foundation. I am keen to facilitate as many mediations as I can. Every mediation a mediator takes part in informs their practice, as every session is situational and there is always something to learn.”

British Sign Language to gain legal recognition

The British Sign Language Bill will give BSL legal recognition in England, Wales and Scotland and will impose on the government a duty to issue new guidance and publish reports on what each department is doing to promote or facilitate the use of BSL.

The private member’s bill was backed by West Lancashire Labour MP Rosie Cooper as well as Conservative peer Lord Holmes of Richmond.

Lord Holmes detailed the difference the bill would make, saying: “As a result of this bill, BSL signers will be able to have such appointments and all communications with the state in an inclusive manner, rather than having to rely on parents, spouses, siblings or children to communicate such news.”

He said it was “enabling, empowering… including BSL signers, benefitting us all”.

Conservative frontbencher Baroness Scott of Bybrook said: “It is indeed an historic day for our deaf community. The Government is committed to supporting all people with a disability, including deaf people, to lead fulfilled and independent lives.”

Chief executive of the National Deaf Children’s Society, Susan Daniels, said: “Thousands of deaf children use British Sign Language and this will be a day of celebration for all of them. It’s also a powerful symbol of recognition for the deaf community and a big step towards real equality.

“What’s important now is that we maintain the momentum and keep shining a light on the issues deaf children face, because their fight doesn’t end here.”

Singapore executes intellectually disabled man over drug conviction

Nagaenthran Dharmalingam, a 34-year-old Malaysian who had an IQ of 69, was hanged yesterday despite a widespread plea for clemency.

He was arrested in 2009 at the age of 21 with 43g of heroin, worth a few thousand dollars on the streets, as he entered Singapore. According to his lawyers, he had agreed to be a drug mule after a smuggler in Malaysia threatened him and his girlfriend.

He was found guilty in 2019 and sentenced to death, the mandatory sentence for drug trafficking in the jurisdiction. Exemptions may be given for the intellectually impaired.

“It is unbelievable that Singapore proceeded with the execution despite international appeals to spare his life,” his sister Sarmila Dharmalingam said from Malaysia.

The United Nations Office of the High Commissioner for Human Rights called for a stay of execution but all appeals for clemency were dismissed by Singapore’s president and courts.

“Nagaenthran Dharmalingam’s name will go down in history as the victim of a tragic miscarriage of justice,” said Maya Foa, director of Reprieve, a group that campaigns against the death penalty.

“Hanging an intellectually disabled, mentally unwell man because he was coerced into carrying less than three tablespoons of diamorphine is unjustifiable and a flagrant violation of international laws that Singapore has chosen to sign up to.”

The execution followed a final appeal on Tuesday. Mr Dharmalingam grasped his family’s hands through a gap in a glass screen as they wept, while his cries of “ma” were heard in the courtroom.

Quote of the day

the axis of the universe
—love

e e cummings, ‘73’

And finally… paws for thought

Cyber Security & Law Firms – What to think about for your Legal Practice

Since most lawyers don’t know a whole lot about cyber security for their legal practice tech companies spend a fair amount of time trying to work out the best way to describe this world using relatable, personal examples and stories. Unfortunately, in many cases law firms are neglecting this very real threat and choose convenience over security and compliance. That’s because using analogies and stories simply doesn’t work. Law firms simply need to know about real consequences and solutions that help mitigate the threats of cyber-attacks on their legal practices.

Let’s face it, there are many lawyers out there for whom a deep, well-crafted explanation of what we’re doing to help is unnecessary and a waste of time. For them, us saying “because we said so” is enough.

For others, they have a very specific need which will require a very specific answer (Why do I need Multi-factor Authentication? Why do I have to change my password all the time). These folk don’t need stories either — just an explanation of the consequences to their business if they ignore advice. Last month, they got a real life example…

Read more here – Denovo Legal Software

Lodges, Pods, Terraces & Tubs

Being in “Lockdown” has changed many people’s thinking. Working from Home (WfH) is now the norm! It can be done.

Separating your work from your leisure / relaxation time is the challenge. With many of us now “stay-cationing” or “holi-staying” it is so important to have areas / spaces that you can go to that help us to achieve such.

Lodges & Pods – These provide a quick fix for dedicated Office Space and / or capacity for visitors / guests from time to time www.law-pods.co.uk / www.grand-lodges.co.uk

Glazed Terraces provide inexpensive and practical outdoor / indoor space – where there is much (day)light and an airy / healthy environment too www.exclusi-veranda.co.uk

Hot tubs are no longer a frivolous “luxury”. They are comforting, energy efficient, and provide many mental and physical health benefits www.scott-tubs.co.uk

For more information contact richard@scottslaw.co.uk

Anyone who makes a purchase during May will have the chance of winning a week’s holiday in June or July at the lodge pictured below in the Black Isle.

AQP have an expert team dedicated to Executry and Trust affairs

email: exeinstructions@alexquinn.co.uk

http://www.alexquinn.co.uk