The Arnot Manderson team of Laurence Murphy QC and Eric Robertson Advocate have successfully resisted a Shopping Centre owner’s claim for confirmation that an anchor tenant has no legal right to prevent construction and leasing of a new building in the Edinburgh site’s car parking area.   In a ruling of 6 August 2014  following evidence and submissions in the Commercial Court case of Gyle Shopping Centre General Partners Ltd  v  Marks and Spencer plc , Lord Tyre held that the tenant was not personally barred from objecting by an informal agreement or obligation.  In a succinct analysis of legal principles, the Court also held that the pre-1995 common law of rei interventus had not survived the enactment of the new statutory provisions.  Thirdly, the evidence fell well short of a voluntary, informed and equivocal waiver of rights by the tenant.  The personal bar argument took place in the context of the Court’s earlier decision following a Debate (conducted by Eric Robertson).   In his 23 March 2014 judgment Lord Tyre decided that (a) the Management Committee of the Centre did not have power to vary the Lease terms and (b) that variations altering the car parking areas would require probative writing.  (The case has been continued for a further separate argument).

The full texts of the August and March judgments can be found here and here