Invitation to good behaviour

Roger Pearson finds proprietors of private retail complexes now have power to decide right of entry

A recent ruling by the Appeal Court over a ban imposed on a group of rowdies who had been plaguing a Northampton shopping centre has increased the rights of proprietors of privately owned retail complexes to police their premises.

The decision is one which Nabarro Nathanson partner Nicholas Cheffings who master-minded the Appeal Court moves believes strengthens the hand of a great many retail centres of varying sizes throughout the country.

The ruling, understood to be the first of its kind, gives them more effective powers to rid themselves of trouble makers. It makes it clear that although there may be an implied invitation at such centres for the public to come in and use them, if there are no official public rights of way in respect of the premises, the management are entitled to show the door to those they don't want in. The public do not have an unassailable right to enter on the basis of the implied invitation.

The recent case centred on the Swansgate Shopping Centre at Wellingborough in Northampton. A County Court judge at Wellingborough had been asked to impose legal bans on the trouble-makers after they ignored letters from the owners CIN Properties telling them they were no longer welcome there because of past trouble.

The judge held as a preliminary point that in the eyes of the law the public had an "irrevocable right" to enter and use shopping malls at centres like Swansgate whenever the doors were open, subject to them behaving reasonably.

Now the Court of Appeal has ruled that this is not the case.

Effectively, Lords Justices Balcombe, Roch and Saville ruled that if the property is private, as is often the case, and there are no public highway or walkway rights through them, the owners can impose a legally enforceable ban. Their right to do so does not have to depend on the behaviour of those the ban is sought against.

But the case was not without its problems for those conducting it, says Cheffings. The lack of directly applicable case law meant that analogous cases had to be found. Nevertheless, he says this is where the research facilities and exchange of specialist experience available in a firm like Nabarros comes into its own. It was possible to find similar cases which played a major role in winning the day in the Appeal Court.

As far as the ruling itself is concerned, Cheffings says: "It has clarified the law in relation to ownership and management and running shopping centres of this type. We argued throughout that in the absence of highways or walkways in centres such as these they had the status of private property. The court has upheld this view and in doing so the implications are wide."

There are a huge number of large and small shopping centres throughout the country which are in similar ownership and operated along similar lines to the Swansgate.

"This decision has clarified the powers and rights of those who own them. It would be wrong to say that these principles will now apply to all shopping centres. Exceptions will exist where there are public rights of way. But where there are not then the owners do have the power to restrict entry."

CIN's case was successfully argued in court by Jonathan Gaunt QC with Nicholas Taggart as his junior.