The owners of a small newsagent, confectioner and tobacconist in Sketty, Swansea, have been given leave to pursue a claim for damages against a neighbouring supermarket for cutting in on their trade.
The Court of Appeal has backed the preliminary ruling of a Cardiff judge, allowing John and Hetty Williams to bring proceedings against Christopher Reeves Kiley, trading as CK Supermarkets Ltd. Buxton LJ noted that the case was thought to be the first of its kind in which a building scheme had been enforced in a commercial context that imposed limitations on competition.
Judge Moseley QC held that the terms of the leases of the neighbouring shops were part of a “letting scheme”, enabling the Williamses to claim directly against CK Supermarkets, rather than having to rely upon the intervention of the mutual landlords, Swansea County Borough Council.
He said that CK Supermarkets use of its premises to sell tobacco and cigarettes, confectionery and stationery items involved a breach of restrictive covenants in its lease in favour of the Williamses.
Backing that ruling, Carnwath LJ held that CK Supermarkets was precluded from selling confectionery and tobacco products in so far as the sale amounted to “a distinct trade or business”.
He stated that the fact that the sale of such items was not dominant in relation to other trades in the supermarket did not reduce the effect upon the claimants’ business, and that the covenants did not require that the excluded trades should become dominant before a breach was established.
Williams and another v Kiley Court of Appeal (Simon Brown, Buxton and Carnwath LJJ) 21 November 2002.
Michael Davey (instructed by John Collins & Partners, of Swansea) appeared for the claimants; Mark Blackett-Ord (instructed by J Michael Glass & Co, of Swansea) appeared for the defendant.
PLS News 22/11/02
