Damages for breach of a Keep-Open Clause: Douglas Shelf Seven Ltd v Co-operative Wholesale Society Ltd

In recent years the courts have been more used to considering the question of “keep-open” clauses in leases from the perspective of whether or not such clauses may be enforced by order of specific implement.¹ As it is less common to find detailed judicial consideration of the quantum of damages which may be claimed for breach of keep-open clauses, the decision of the Outer House in Douglas Shelf Seven Ltd v Co-operative Wholesale Society Ltd and another² is worthy of note. In a detailed judgment running to over six hundred paragraphs, Lord Reed makes some impor-tant observations on the assessment of damages in such cases, as well as on whether consent to a sub-lease constitutes delegation of the tenant’s duty to keep the premises open.