Commercial lease — User covenant — Respondents wishing to sublet for use as sandwich shop — Whether such use constituting prohibited trades of victualler or coffee-house keeper — Judge holding sale for consumption on the premises permitted — Appeal allowed
The first respondent tenant held a 125-year lease of commercial premises owned by the appellant landlord. The second respondent was an intermediate tenant holding under a concurrent lease. The first respondent proposed to sublet the property to a company that ran a chain of shops selling pre-prepared food and non-alcoholic drinks, primarily, but not wholly, for consumption away from the premises. The appellant considered that such use would breach the terms of a covenant in the lease that prohibited use of the premises for businesses that included those of “victualler, vintner, tavern-keeper, vendor of malt liquor, restaurateur or coffee-house keeper”.
The first respondent applied to the court for a declaration that the proposed use would not breach the user covenant. The judge held that use of the premises as a shop for the sale of pre-prepared foods, non-alcoholic drinks and ancillary products for consumption off the premises would not breach the covenant, because it did not fall within the description of a “victualler” as that term would have been understood at the time the lease was granted in 1950. He found that, at that date, the term would have been restricted to a licensed publican. However, he went on to hold that the term “coffee-house” would encompass a café or snack bar, so that sales of food and drink for consumption on the premises would breach the user covenant.
The appellant appealed the decision on the first point, arguing that “victualler” should be given its wider dictionary definition of a person whose business was the provision of food and drink. The respondents cross-appealed on the meaning of “coffee-house”, on the ground that it was an anachronistic reference to a type of coffee-house, now obsolete, that had flourished in the 17th century when the site had first been developed.
Held: The appeal was allowed and the cross-appeal was dismissed.
The word “victualler” in the user clause was not restricted to a licensed victualler but bore the wider meaning of a person who supplied food and drink. Although the judge had taken the correct approach by seeking to establish the meaning of the word at the date of the lease in 1950, there had been no evidence before him to support his conclusion. It was to be inferred that when, in the context of a lease of commercial property drafted by lawyers, the parties chose to use the word “victualler”, rather than “licensed victualler”, they had intended that the word should bear its ordinary general meaning and not the more limited and specific meaning. It followed that the sale of the proposed items for consumption either on or off the premises would breach the user covenant.
Per curiam: The judge had correctly considered the meaning that the word “coffee-house” would have had in 1950, namely a place where coffee and light refreshments were served, and had been right to reject the respondents’ interpretation, which would have given that term no relevant meaning or effect in the user clause.
Jonathan Small (instructed by Stephenson Harwood) appeared for the appellant; Jeremy Cousins QC and Philip Kremen (instructed by Brecher Abram) appeared for the respondents.
Sally Dobson, barrister
