1 By agreements in writing made on various dates between the appellants and each of the respondents, the appellants leased to the respondents various portions of the premises in the building known as Parkway Parade. By cl 3.20 of the said agreements, the respondents agreed, inter alia, to keep their respective premises open for business from 10am to 10pm daily or during such hours as the appellants shall from time to time prescribe as the usual business hours of the building. In breach of the aforesaid clause, the respondents on or about 14 March 1985 closed their respective premises and in consequence of which the appellants claimed that they had suffered loss and damage.

2 According to the appellants, the respondents threaten and intend to repeat the said breach unless they are restrained from so doing and the appellants seek an injunction to restrain the respondents from doing any act which, directly or indirectly, will cause a breach of cl 3.20 of the various tenancy agreements made between the appellants and the respondents until the expiration or termination of the various tenancy agreements made between the parties.

3 On the ex parte application of the appellants the court granted an interim injunction on 25 April 1985 restraining the respondents from causing a breach of cl 3.20 of the various tenancy agreements made between them and, the appellants, which clause provides that the respondents shall keep their premises open for business from 10am to 10pm daily, until after the hearing of this motion or until further order.

4 The appellants appeared before me on 21 May 1985 and applied by way of a notice of motion for the interim injunction granted on 25 April 1985 to be continued till the trial of suit No 3900/85 or till the expiration or termination of the various tenancy agreements made between them and the respondents. At the end of the hearing I ordered the discharge of the interim injunction made on 25 April 1985 and costs against the appellants to be taxed. This is an appeal against the whole of my aforesaid decision.

5 The respondents who are the appellants` tenants have been asking since late 1984 for a reduction in the rents payable to the appellants, alleging that the poor economic climate had adversely affected their businesses. On 13 March 1985 the respondents publicly announced their intention to close their shops for one day in an attempt to compel the appellants to reduce their rents. They carried out their threat on the following day. On 23 March 1985 the respondents wrote to the appellants intimating that they had decided to suspend payment of rent till a solution could be found. On 16 April 1985 the appellants announced a multi-million dollar package of concessions made entirely on an ex gratia basis which would cost the appellants about $7m. According to the appellants, it would alleviate the cash flow problems of the respondents. The respondents rejected part of the appellants` package and threatened to close shop from 29 April 1985 for more than a day unless a satisfactory reply was obtained. The respondents wanted the rents reduced even more than as proposed in the package. In reply to this threat of a shut-down, the appellants applied for and obtained the interim injunction herein.

6 According to the appellants` counsel, the principles laid down in the American Cyanamid case [1975] AC 396 are applicable to their case. He alleged that damages would not provide an adequate remedy for the appellants in the event of their succeeding at the trial. He added that the previous shut-down had given the appellants` shopping centre an unsavoury reputation as a trouble spot thereby acting as a disincentive for prospective tenants and affecting the reletting value of the centre. The appellants` bankers and financiers had also expressed concern about the viability of the centre as a whole. By reason of the aforesaid, the reputation, goodwill and commercial prospects of the centre had been adversely affected for which pecuniary damages would not be an adequate remedy.

7 It is not in dispute that the aforesaid tenancy agreements do not provide any means by which the tenants can legally terminate their tenancies.

8 The question in issue in the present case is whether or not the appellants have any real prospect of succeeding at the trial in their claim for a permanent injunction which requires the respondents to keep their respective premises open for business from 10am to 10pm daily or during such hours as the appellants shall from time to time prescribe as the usual business hours of the building until the expiration or termination of the various tenancy agreements made between them and the respondents.

9 The respondents cited several authorities which laid down the principle that the court would not grant relief by way of an injunction, the effect of which would force the respondents to carry on business, to provide and pay their staff and to see that the members of it perform their duties. In London, Chatham, and Dover Railway Company and South-Eastern and Chatham Railway Companies` Managing Committee v Spiers and Pond (Ltd) (1916) 32 TLR 493, the defendants were the lessees of a hotel and restaurant from the plaintiffs, and had covenanted to use the premises as a hotel and restaurant during the term. Owing to loss of business during the war the defendants proposed to close the hotel for the time being, but to continue the restaurant. On an application by the plaintiffs for an interim injunction to restrain the defendants from closing the hotel the court held that as the effect of the injunction would be to order the defendants to carry on the business of the hotel and as it was not the practice to grant such an injunction the application must be refused.

10 It was firmly established by the authorities such as Catt v Tourle LR 4 Ch App 654 and Kirchner & Co v Gruban [1909] 1 Ch 413, that the court must look at the substance of the covenant, and here, both in form and substance, the covenants were positive and not negative. And in Hooper v Brodrick 11 Sim 47; 59 ER 791 it was held that the court had no jurisdiction to restrain a person from discontinuing to use premises as an inn, as that was the same in effect as ordering him to keep an inn.

11 Similarly, an injunction to restrain the respondents in the present case from committing a breach of cl 3.20 has the same effect as ordering them to continue running their businesses, to provide and pay a staff and to see that their employees performed their duties. According to counsel for the respondents their clients were running at a loss owing to the present depressed conditions and if they had to continue paying the rents demanded by the appellants they would soon be forced into bankruptcy or liquidation on account of insolvency.

12 It is also well established that the court will not order specific performance of an obligation to carry on a business or any comparable series of activities - see Dowly Boulton Paul Ltd v Wolverthampton Corp [1971] 1 WLR 204.

13 Just in case I was wrong in my view that the appellants did not have a real prospect of winning their suit, I considered the second principle laid down by Lord Diplock in the American Cyanamid case (supra) , ie whether damages in the measure recoverable at common law would be an adequate remedy. This is in effect a restatement of the established rule that a plaintiff should not be granted an interlocutory injunction unless he is able to show that if it were not granted he would suffer irreparable damage - see Johnson v Shrewsbury and Birmingham Railway Co (1853) 3 De GM and G 914; 43 ER 358. According to the appellants` general manager, Michael Leong Choon Fai, the appellants would suffer considerable hardship if the injunction were not continued and the respondents implemented another shutdown which would adversely affect the reputation, goodwill and commercial prospects of the centre for which pecuniary damages would not be an adequate remedy. The appellants have not pleaded that they will suffer irreparable damage if the injunction were not continued. On the other hand, counsel for the respondents claimed that their clients would be driven into bankruptcy or liquidation on account of insolvency if they were forced to continue operating their business in view of the high rents which they have to pay and also because of the current recession.

14 In the above premises, I found that irreparable damage would be suffered by the respondents if the injunction were continued. The appellants would be adequately compensated by the damages recoverable at common law and I was satisfied that the respondents would be in a financial position to meet such damages. In any event the appellants are not claiming damages in Suit No 3900/85 against the respondents.

15 As the appellants had failed to pass the tests in the guidelines provided by Lord Diplock in the American Cyanamid case I dissolved the interim injunction granted on 25 April 1985 and ordered costs against the appellants to be taxed.

16 Appeal dismissed