Forthwell Limited v Pontegadea UK Limited

Facts

The Rogano was one of the oldest and most celebrated restaurants in Glasgow, first trading in 1874 and operating continuously at 11 Exchange Place from 1935 until it closed in 2020 during the Covid-19 restrictions. Forthwell Limited is the tenant of those premises under a lease dated 18 and 29 March 1996, the tenant's interest having been assigned to it in August 2013; Pontegadea UK Limited is the landlord. Forthwell granted its wholly-owned subsidiary, Lynnet Leisure (Rogano) Ltd, a licence to occupy, and Lynnet traded from the premises. On 9 and 14 December 2020 and on 10 January 2021 the premises were damaged by flooding and water ingress; a fire followed the first flood, the electrical installations were left unsafe, the premises were without heating, and water ingress continued. Repairs were not carried out and the restaurant could not reopen. In a commercial action Forthwell sought specific implement of the landlord's repairing obligations, damages in lieu, damages for failure to maintain the common parts, professional fees, and — in the fourth and fifth conclusions — past and anticipated future loss of profits suffered by Lynnet, advanced as transferred loss claims. The commercial judge allowed those claims to proceed to a proof before answer; the First Division, by a majority, dismissed them. Forthwell appealed to the Supreme Court.