High Court grants interlocutory injunction to anchor tenant to keep shopping centre doors open for other occupiers.

Neutral Citation: [2015] IEHC 568

THE HIGH COURT

[2015 No. 5742P]

BETWEEN

CAMIVEO LIMITED

PLAINTIFF

AND

DUNNES STORES

DEFENDANT

JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 9th day of September 2015

1. This is an application brought by the plaintiff for an interlocutory injunction restraining the defendant from disabling the automatic

opening mechanism of doors from its unit in Edward Square Shopping Centre, Galway to Castle Street/Barrack Lane during the opening

hours of the shopping centre. The applicant is the landlord of the Edward Square Shopping Centre in Galway and the defendant is the

tenant and occupier of what is described as the anchor unit in that shopping centre.

2. The defendant holds the premises under a lease dated 3rd April, 2000. Although the text of the lease does not appear to refer to

“anchor unit” the cover page of the lease describes it as a “LEASE of Anchor Unit Edward Square Shopping Centre, Barrack Lane,

Galway”.

3. Before I deal with the issues arising in the application it seems to me appropriate to comment on the number of affidavits sworn by

each party in support of their position on the application. I do so for the purpose of setting out some guidelines as to what I believe

should be the approach that parties to interlocutory applications should take having regard to the limited time and resources of the

Courts.

4. In this case there were a large number of affidavits going well beyond what was required to enable the Court to come to a view on

the issue before it. Many of the affidavits were sworn in reply to earlier affidavits and did little more than reiterate the position

previously adopted by the deponent and to rebut averments in other affidavits. In both cases the supplemental affidavit(s) introduced

little or no additional information for the assistance of the Court. If a party to such an application wishes to produce a replying

affidavit it should only do so if it can introduce new relevant information and should not use the opportunity for the purpose of

rehearsing arguments already made and merely rebutting the contents of other affidavits. To do so is unnecessarily wasteful of Court

time and resources and should, in appropriate cases, be dealt with by structured costs orders.

5. Moving to the application for an interlocutory injunction I am satisfied – for reasons which I will explain later in this judgment – that

this is, in reality, an application for a restraining or prohibititory injunction and not a mandatory injunction. One of the important

agreed facts in this case is that, up until the doors in question were closed on the 17th June, 2015, they had been operating normally

for a period of fifteen years as a means of access to and egress from the premises during normal shopping hours. That represents the

status quo so far as this application is concerned.

6. From the information available to the Court at this stage it appears that the doors in question (hereinafter referred to as “the

doors”) were designed and intended to be the main entrance/exit at the defendant’s premises and operated as such for a period of

fifteen years. It is of course clear that there were a number of entrances/exits at other locations in the store leading in and out of

other streets or passageways in the vicinity but the evidence at this stage suggests that they were not the principal entrance/exit.

So far as the Edward Square Shopping Centre was concerned the doors gave access onto Castle Street/Barrack Lane which was the

common concourse from which all the shops in the Edward Square Shopping Centre could be accessed.

7. Having regard to the agreed facts in this case I am satisfied that this application is one brought by the plaintiff to restrain the

defendant from keeping the doors closed at all times and in particular during the opening hours of the defendant’s premises. In seeking

such an order the plaintiff is seeking to maintain the status quo pending the determination of the issues in dispute between the

parties.

8. I am satisfied therefore that the Campus Oil principles apply in this case. The Court is not forming any final view on the issues

between the parties at this stage but is concerned with maintaining the status quo having regard to the Campus Oil test.

Fair, Bona Fide or Serious Issue to be Tried

9. Having considered the affidavits and submissions made in this case I am satisfied that the plaintiff has raised a fair or bona fide or

serious question to be tried.

10. Although the lease on foot of which the defendant holds the premises does not define “anchor tenant” the cover page of the

document describes the lease as being of the anchor unit at Edward Square Shopping Centre, Barrack Lane, Galway. While I do not

have to decide anything definitively at this stage for the purpose of meeting the Campus Oil test it seems to me that the description

of the lease as being in respect of the anchor unit is of some significance. I also have regard to the fact that the lease is described

as being in respect of such a unit in “Edward Square Shopping Centre”. In other words, the lease is in respect of one of a number of

premises in a shopping centre and on its face states that it is in respect of the interest of the anchor tenant. On the state of the

evidence at this stage it appears that the only entrance to the defendant’s premises from Castle Street/Barrack Lane is the one

which is now closed and is the subject of this dispute. If the purpose of having an anchor tenant is to draw shoppers to the premises

of that tenant and thereby benefit the other tenants in the centre it would seem odd and contrary to normal commercial letting

principles that the premises of the anchor tenant cannot be accessed from Castle Street/Barrack Lane which is the common

concourse serving all the premises in the shopping centre.

11. The defendant has raised a number of issues as to why an interlocutory injunction should not be granted. One of these is the fact

that there is no “keep open clause” in the lease. This is accepted by the plaintiff. For the purpose of this application it seems to me

that this is not a matter of great significance. The point is not whether the defendant is obliged to keep the store open at all times,

or at particular times, but rather whether the doors in question should be used as a means of ingress to and egress from the store

during its trading hours having regard to the fact that this is the only means of access to the premises of the anchor tenant from

Castle Street/Barrack Lane which it shares in common with other tenants in the centre.

12. An affidavit from Mr. Cormack MacEochainn of Douglas Newman Good sworn on the 23rd July, 2015, states that the doors were

always perceived as the main and front doors of the anchor unit. While this may be open to debate at the substantive hearing this

statement does appear, at least prima facie, to be supported by the plans and photographs which have been produced to the Court.

13. There is a substantial body of evidence to suggest that in the minds of the planning authority linkage between the Edward Square

Shopping Centre and Eyre Square Shopping Centre was important in helping to create connectivity between different parts of the city

centre. The defendant’s planning expert Ms. Auveen Byrne has deposed to the fact that planning a pedestrian route through a

particular premises to link one part of a city centre to another would be unusual. That may well be so and is something that will have

to be trashed out at the full hearing in determining whether or not the defendant is in breach of planning permission as contended for

by the plaintiff. But at this stage it seems to me that the plaintiff has met the test of setting out a fair bona fide question to be tried

on this issue and specifically whether such connectivity is been impeded by the defendant closing the doors.

14. On the two main issues relevant to this injunction application I am satisfied that the plaintiff has made out a good bona fide and

arguable case, namely, that the defendant as anchor tenant, is obliged to keep the doors open when it is trading for the benefit of

the other occupiers of premises in the Edward Square Shopping Centre and also that it is required to do so for the purpose of

achieving the objective of the planning authority to create connectivity between different parts of the city, this being the basis on

which the planning permission for the centre was granted.

Balance of Convenience

15. The doors in question were open for fifteen years and were only closed as recently as 17th June, 2015. The defendant has not

adduced any evidence which satisfies me that it would be unfairly inconvenienced by making the doors available for use as a means of

access to and egress from its premises until the final determination of this dispute. The plaintiff has produced evidence to show that

its other tenants have been affected by the closure of the doors and while this is disputed and will have to be examined in more detail

at the substantive hearing in due course the relief sought by the plaintiff in this application merely seeks to preserve the status quo

which existed up until recently and I am satisfied that the balance of convenience lies in favour of granting an injunction to achieve

that end.

Adequacy of Damages

16. The evidence adduced as to the ongoing consequences of the doors remaining closed satisfies me that damages would not be an

adequate remedy for the plaintiff if the application for an injunction was refused and the plaintiff succeeded at the trial of the action.

The local authority have threatened enforcement proceedings in respect of the closure of the doors. The legitimacy of this action is

challenged by the defendant and will have to be determined at the substantive hearing. An arguable case has been made that the

various tenants’ property rights will be affected if the doors remain closed and this will have a knock on effect on the plaintiff as the

owner of the centre and with obligations to National Asset Loan Management Limited. The protection of property rights is a matter in

respect of which the Courts will grant injunctive relief and it seems to me that the plaintiff has established, to the degree of proof

required at this stage, that damages would not be an adequate remedy.

Adequacy of Undertaking as to Damages

17. The defendant has questioned the ability of the plaintiff to give a meaningful undertaking as to damages. I have considered the

affidavit of Mr. Enda Woods sworn on the 22nd July, 2015, and I am satisfied from the information set out therein that the plaintiff is

in a position to give an adequate undertaking as to damages having regard to its interest in the Edward Square Shopping Centre.

Conclusion

18. Having applied the Campus Oil test in this case I am satisfied that the plaintiff is entitled to an interlocutory injunction restraining

the defendant from disabling the automatic opening mechanism of the doors from its unit in Edward Square Shopping Centre, Galway

to Castle Street/Barrack Lane during the opening hours of the defendant’s store. This order will do no more than restore the status

quo as it existed for fifteen years up until the 17th June, 2015.