Dublin Port Company v Bond Road Container Storage
|20 December 2002
| IESC 78
|20 December 2002
 IESC 78
THE SUPREME COURT
MEXBOROUGH (EARL OF) V WHITWOOD URBAN DISTRICT COUNCIL
SEDDON V COMMERCIAL SALT CO
JUDICATURE (IRL) ACT 1877
JUDICATURE ACT 1873 (UK)
COURTS OF JUSTICE ACT 1924 S22
CIVIL EVIDENCE ACT 1968 S16(1)(A) (UK)
AIB BANK PLC V ERNST & WHINNEY 390
ORME V CROCKFORD 1824 13 PRICE 376
CONVEYANCING ACT 1881 S14
PRACTICE AND PROCEURE
Lease - Covenants - Forfeiture of lease - Alleged breaches of covenants - Courts of Justice Act, 1924 section 22 (219/2001 - SC - 20/12/02)
Dublin Port Company v Bond Road Container Storage and Transport Ltd - -
Facts: The net point of this application was whether a lessor who seeks to forfeit a lease could obtain an order discovery against the lessee to assist in proving that there has been a breach of the relevant covenants giving rise to a forfeiture. The lessors initiated legal proceedings and their solicitors wrote to the lessees seeking discovery in relation to alleged breaches of covenants. The lessees denied breaches. On failing to respond to the request a successful motion for discovery was made to the High Court. The lessees appealed.
Held (Keane CJ; McGuinness and Hardiman JJ concurring) There were no Irish authorities on the issue. In dismissing the appeal and affirming the High Court decision, the court declined to follow the old English case of Mexborough (Earl of) v Whitwood Urban District Council  2 QB 111 which was to the effect that in an action to enforce a forfeiture on breach of covenant, the court could not grant discovery for the purpose of establishing the forfeiture. Following AIB Bank Plc v Ernst and Whinney  1 IR 37 which set out the modern law of discovery, that judgment found that an obsolete rule adopted at one stage by the English courts but never adopted by the Irish courts could not be a ground for refusing to make the order. Appeal dismissed.
20th day of December 2002, by Keane C.J.
The point at issue in this appeal is not without interest, but is one on which the industry of counsel has failed to unearth a single Irish authority. Can a lessor who seeks to forfeit a lease obtain an order for discovery against the lessee to assist him in proving that there has been a breach of the relevant covenants giving rise to a forfeiture?
The facts are not in dispute. The plaintiffs/respondents (hereafter "the lessors") entered into two leases on the 26 th March 1996 and the 29 th March 2000 with the defendants/appellants (hereafter "the lessees") demising premises at Bond Road in the docklands area of Dublin for terms of 99 years from the 1 st July 1995 and the 1 st July 1999. On the 24 th November 2000 the solicitors for the lessors served notices of re-entry relying on a number of alleged breaches of covenants in the leases.
The breach alleged in respect of Covenant 7 in each case was that
"You have carried out alterations and additions to the demised premises in default of compliance with the Planning Acts including:-"
(a) erecting a communications mast with ancillary equipment on the premises;
(b) by subdivision of the property into separate units;
(c) by carrying out development works on the property;
(d) by changing the use of the property;
(e) By the erection of signs on the property."
It was also alleged that there had been a breach of Covenant 12 in each case as follows:-
"You have subdivided the premises into separate units and also sublet the premises without consent ".
The lessees having failed to deliver up possession of the premises, these proceedings were instituted claiming an order for recovery of possession and damages for breach of contract. The lessees delivered a defence and counterclaim, which contained a complete traverse of the averments in the statement of claim and a claim inter alia for relief against forfeiture.
On the 20 th April 2001, the solicitors for the lessors wrote to the solicitors for the lessees asking them to make discovery in relation to what were described as "all arrangements between the lessees and all of the parties who were carrying on business in the various areas comprised in the leases".
The letter added
"The reason why such discovery is required is because the defendant has denied that there are third parties in occupation and possession of the premises contrary to the terms of the leases."
The lessees having failed to respond to this request, a motion for discovery was brought in the High Court. In an extempore judgment, Morris P held that the lessors were entitled to an order for discovery. From that judgment and order, the lessees have now appealed to this court.
The commendably succinct argument by Mr. O'Dulachain SC on behalf of the lessee rests squarely on two English authorities which, as he properly concedes, were not binding either on the High Court or this court, but which, he urges, are of considerable persuasive authority and should be followed. These decisions— Mexborough (Earl of) —v- Whitwood Urban District...
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