Mount Cook Land Ltd v Joint London Holdings Ltd & Anor

In construing a historic commercial lease, the court asks what meaning the parties intended the words to bear when the lease was granted. The starting point is the ordinary meaning or meanings at that date, tested against the clause as a whole. Historical origins and an illogical list of overlapping trades do not displace that meaning. “Victualler” therefore ordinarily means a supplier of food and drink, rather than only a licensed victualler. The anti-proposer rule applies only where ordinary interpretation leaves an ambiguity or doubt unresolved. “Coffee house keeper” had a contemporary meaning extending beyond the historic coffee house to premises serving food and drink for consumption on site. Whether a modern mixed business falls within that restriction remains a question of fact and degree. A simple “primarily for consumption off the premises” formula cannot decide it.

JLHL sought declarations concerning a proposed subletting to Pret à Manger. Clause II(7) of the 1950 lease prohibited the carrying on of various trades, including that of a “victualler” or “coffee house keeper”. The proposed outlet would sell prepared food and non-alcoholic drinks, mainly for consumption away from the property, with limited facilities for consumption on the property.

Blackburne J declared that off-premises sales would not breach clause II(7), but that on-premises consumption would breach clause II(7) and the Concurrent Lease. Mount Cook appealed against the first declaration. JLHL and MPIL cross-appealed against the latter declarations. The central issues were the meaning of the two expressions and whether general declarations could determine the application of the covenant to a modern food outlet.

Disposition. Etherton J allowed Mount Cook’s appeal, with Chadwick LJ and Jonathan Parker LJ agreeing, and dismissed the cross-appeal. The declaration that the proposed off-premises use would not breach clause II(7) therefore could not stand. The declarations concerning on-premises consumption were not displaced.

1. Meaning of “victualler”. The relevant question was the meaning intended by the parties in 1950. The starting point was the ordinary meaning or meanings at that date, subject to displacement by the context of the covenant. The historical origin of the wording in earlier estate leases did not determine its meaning. The ordinary dictionaries supported the general meaning of a person supplying food and drink, while “licensed victualler” was the established expression for a publican. (1888) 52 JP 423 illustrated that distinction.
2. The surrounding list did not displace the ordinary meaning. Clause II(7) was a hotchpotch of overlapping trades in no logical order. References to particular food sellers were neutral because other references would also be redundant if “victualler” meant only licensed victualler. The anti-proposer rule, discussed with reference to [1992] 1 EGLR 123, applied only where ordinary principles left an ambiguity or doubt unresolved. That condition was not met.
3. Additional guidance on “coffee house keeper”. Although unnecessary to dispose of the appeals, the Court held that the expression had a contemporary meaning in 1950. It was not confined to the historic seventeenth- and eighteenth-century coffee house. It could include a more modest establishment serving food and drink for consumption on the premises. Fitz v Iles [1893] Ch. 77 supported that conclusion.
4. Whether a modern business also carried on the business of a coffee house keeper was a question of fact and degree. A business did not automatically become two businesses merely because it sold products commonly sold by another business. Authorities including Stuart v Diplock [1899] 43 Ch. 343, A Lewis & Co. (Westminster) Ltd v Bell [1940] 1 Ch. 345 and Labone v Litherland UDC [1956] 1 WLR 522 illustrated that principle. “Primarily for consumption off the premises” was an imprecise yardstick and could not determine the issue regardless of the facts. The proposed amended declaration was therefore refused.
5. The criticism of the Part 20 claim was rejected. Permission to issue it had been granted and had not been appealed, so there was no basis for criticising the Judge for making declarations on that claim.

• Court of Appeal (Civil Division) [2005] EWCA Civ 1171. Allowed Mount Cook’s appeal and dismissed JLHL and MPIL’s cross-appeal.
• High Court, Chancery Division. Blackburne J, on 2 March 2005, declared that sales for consumption exclusively off the property would not breach clause II(7), but that use involving consumption on the property would breach clause II(7) and the Concurrent Lease.