THE MANAGEMENT of a shopping centre have lost their latest legal battle against Marks & Spencer over plans to build a new Primark store.
The owners of Edinburgh’s Gyle Shopping Centre went to court to seek a ruling that it was entitled to construct premises for a branch which would belong to the retail chain.
It also wanted a legal declaration that M&S had given unqualified written consent for the use of the land for building the new shop which would be leased to Primark.
The Gyle’s management based their position on meetings which had taken place in which M&S representatives allegedly gave the go ahead to the proposals.
But M&S maintained that it hadn’t given permission and that the staff members weren’t empowered to make decisions on behalf of the company.
It also argued that the shopping centre’s owner wasn’t entitled to begin building work as it breached the terms of a lease which they signed with the Gyle in 1990.
On Wednesday, in a written judgement issued at the Court of Session, judge Lord Tyre ruled that the Gyle couldn’t build the store.
He wrote: “In my opinion, the evidence falls well short of establishing that there has been voluntary, informed and unequivocal waiver by the defender of its right to prevent the construction and leasing of the building.
“It seems to me that the pursuer’s analysis perpetuates its original error of treating the defender’s representatives who attended the minutes of Management Committee meetings as equivalent to the defender itself.
“It wrongly characterises the conduct of these individuals as the conduct of the defender itself. As I have already held, those individuals were not empowered in terms of the defender’s lease to take decisions affecting the defender’s real rights.”
Primark was founded in June 1969 in Dublin’s Mary Street by businessman Arthur Ryan and Micaela Mitchell.
It currently trades in Austria, Belgium, France, Germany, Ireland, Portugal and Spain.
The firm generated £4,273 million of revenue in the 2012-2013 financial year.
The Court of Session had earlier heard that M&S were granted a 127 year lease over its store at the Gyle to run from 1990.
During proceedings, the shopping centre produced minutes of management committee meetings discussing the Primark plan and signed on behalf of M&S by an employee and stating proposals were approved.
But Lord Tyre ruled on Wednesday that the minutes didn’t give permission to the shopping centre to disregard the 1990 lease and begin construction of the new shop.
He also ruled that if the Gyle management wants to continue with its plan to build a Primark store, its legal team should return to court.
He wrote: “I shall put the case out by order in order that parties may address me on the terms of the interlocutor to be pronounced and also to determine whether any further procedure in this action is required.”