The owners of Edinburgh's Gyle shopping centre went to court seeking a ruling that it was entitled to construct the building and that it would not be acting unlawfully or in breach of M&S's lease in doing that. It also sought a declaration that M&S had given unqualified written consent for the use of land for building the new store to be leased to Primark.
Marks and Spencer maintained that it had not given its agreement in probative writing and the shopping centre owner was not entitled to begin building work.
The proposed new Primark store would be constructed on unbuilt land, including part of the car parking area.
The Court of Session in Edinburgh heard that M&S was granted a 127-year lease over its store at the Gyle to run from 1990.
The judge said he considered the proposed grant to Primark would amount to a variation of the M&S lease.