London Trocadero Ltd v Family Leisure Holdings Ltd

A contractual right granted to a tenant may, where the lease permits or necessarily implies it, be exercised through persons authorised by the tenant. Commercial construction may require delivery and removal rights to extend to authorised agents, even where the relevant schedule does not repeat the authorising words. An owner denied access to its goods may claim wrongful interference with goods, notwithstanding that it cannot itself sue to enforce an easement granted by the lease. On an interim delivery-up application, the claimant need only have a realistic prospect of establishing its claim. An appellate court will not interfere with a costs discretion exercised within the range reasonably open to the first-instance judge.

West End Amusement Parks Ltd held a lease of premises at the Trocadero. Its subsidiary, West End Amusements Ltd, traded there and hired amusement and gaming machines from Family Leisure Holdings Ltd. After the subsidiary and tenant entered administration, Family Leisure sought to repossess machines which remained its property.

London Trocadero Ltd resisted access and removal, relying on the lease’s provisions governing rights of way, deliveries and removal of goods. Family Leisure issued proceedings for delivery up and damages for wrongful interference with goods. On an interim application, HHJ Hodge QC declared that Family Leisure could remove the machines on specified terms and made consequential costs and case-management orders. The appeal concerned construction of the lease, standing, the form of the interim order and costs.

1. Appeal dismissed. The only extant practical issue was costs, because London Trocadero had subsequently licensed removal of the machines, but the substantive issues remained relevant to resolving that question.
2. The lease defined the Tenant by reference to the named tenant and its successors in title. Nevertheless, Schedule 1 paragraph 1 expressly extended the right of way to persons authorised by the Tenant. That wording, together with the commercial purpose of the lease, meant that the related loading right in paragraph 2 also extended to authorised persons. Otherwise the tenant could not sensibly engage ordinary removal contractors.
3. The same construction applied to Schedule 3. Words extending the delivery and removal machinery to persons authorised by the Tenant were properly implied where required to give the provisions commercial effect. Family Leisure and JEP Industrial Ltd were acting with the tenant’s authority and were bound by the obligations governing the removal operation.
4. Family Leisure accepted that, as a licensee, it could not sue for interference with the easement itself. Its pleaded claim was instead that London Trocadero wrongfully interfered with its machines by denying access to them. The authorities recognised that an owner is deprived of possession when possession is withheld by the wrongdoer, and that preventing the true owner from exercising rights over goods may found a cause of action. The cited factual authorities were distinguishable because access was denied here on a sustained basis.
5. At the interim stage, the appellant had to show that there was no realistic prospect of Family Leisure establishing wrongful interference with goods. That threshold was not met. The judge had jurisdiction to make the declaration and delivery-up order and was entitled to do so in the exercise of his discretion.
6. The costs order was also within the ambit reasonably open to the judge. He had considered the late provision of a detailed removal methodology by making no order as to the costs of the earlier hearing. The appeal was dismissed on all grounds.

• Court of Appeal (Civil Division): [2012] EWCA Civ 1037 dismissed the appeal from the interlocutory order of HHJ Hodge QC.
• High Court of Justice (Chancery Division), Manchester District Registry: On 10 November 2011, HHJ Hodge QC declared that Family Leisure Holdings Ltd could remove the machines on specified terms, ordered London Trocadero Ltd to pay costs subject to no order for the costs of the earlier hearing, allocated the matter to the multitrack and gave further directions.