Foot Locker Retail Ireland Ltd v Percy Nominees Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 26 March 2021
• Neutral Citation: [2021] IEHC 211
• Docket Number: [2020/6301 P]
• Court: High Court
• Date: 26 March 2021

Between

Foot Locker Retail Ireland Limited

Plaintiff

and

Percy Nominees Limited

Defendant

[2021] IEHC 211

[2020/6301 P]

THE HIGH COURT

Discovery – Declaratory relief – Liability – Defendant seeking discovery – Whether categories should be reformulated

Facts: The plaintiff, Foot Locker Retail Ireland Ltd (Foot Locker), claimed that the lease between the parties had been frustrated, and sought both a declaration to that effect and, more particularly, a declaration that it had no liability for rent from the 24th of March 2020 onwards or some portion of that period. The defence and counterclaim of the defendant, Percy Nominees Ltd (Percy), denied much of the claim pleaded by Foot Locker. Percy applied to the High Court seeking discovery from Foot Locker. Four categories were in dispute.

Held by O’Moore J that he would order that Foot Locker make discovery in the terms of Category 4 as sought by Percy: all documents that record or evidence the decision making process engaged in by the plaintiff and its rationale, in closing its stores in Ireland on or about 17 March 2020. O’Moore J confined Category 5 in the way proposed by Foot Locker: the lease as between the plaintiff and its landlord in respect of the Grafton Street store from which the plaintiff operates in Ireland, and all documents that record or evidence the discharge of rent by the plaintiff in respect of the Grafton Street store from 1 January 2020 to date. O’Moore J ordered discovery of Category 6 in the form proposed by Foot Locker: the plaintiff’s volume of trade from the Grafton Street premises including the plaintiff’s trade online, from 1st January 2019 to date, and the plaintiff’s revenue from the Grafton Street premises from 1st January 2019 to date. O’Moore J ordered a reformulated Category 9: all documents evidencing or recording the commercial impossibility of the plaintiff’s operation of the demised premises from the 24th of March 2020 onwards.

O’Moore J listed the motion for 10:30am on the 13th of April 2021 to deal with the time within which discovery is to be made, to deal with the costs of the motion, and to address any further matters which the parties may wish to raise. Given that O’Moore J had reformulated Category 9 without reference to the parties, though he had stayed within the confines of the category as sought, he would also deal with any variations to his proposal that the parties may wish to suggest.

Discovery ordered.

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 26th day of March, 2021.

1 The Plaintiff (‘Foot Locker’) is a well known sportswear and footwear retailer. It operates seven outlets in Ireland. One of these stores is located at the top of Grafton Street in Dublin. It leases the premises from the Defendant (‘Percy’). Percy is an investment company associated with the equally well known firm of Davy Stockbrokers.

2 The Covid-19 pandemic struck Ireland in March 2020. On St Patrick's Day 2020 Foot Locker closed all its Irish stores. At paragraph 12 of the Statement of Claim, Foot Locker pleads:-

“In or about 17 March 2020, the Plaintiff, in accordance with Public Health advice concerning the spread of the Covid-19 pandemic, took the exceptional action of closing its stores throughout Ireland, for the safety of staff, customers and suppliers, including the [Grafton Street store].”

3 The Statement of Claim recites the subsequent measures put in place by the Government from the 24th of March 2020 onwards; while these measures have varied over time, Foot Locker claims that they have lead to “an unprecedented and dramatic collapse in the pre-existing level of footfall in Grafton Street.” Foot Locker makes the claim that the lease between the parties has been frustrated, and seeks both a declaration to that effect and, more particularly, a declaration that it has no liability for rent from the 24th of March 2020 onwards or some portion of that period.

4 Unsurprisingly, the Defence and Counterclaim of Percy denies much of the claim pleaded by Foot Locker.

5 Percy now seeks discovery from Foot Locker. Four categories are in dispute. I will deal with each of these in turn, though the decision on Category 5 significantly influences the decision on Category 6. Before considering each category, I should make the point that there was no great dispute on the well settled principles governing the question of when and to what extent discovery is to be ordered.

Category 4.

6 This category covers:-

“All documents that record or evidence the decision making process engaged in by the Plaintiff and its rationale, in closing its stores in Ireland on or about 17 March 2020.”

7 Foot Locker has agreed to make discovery of documents relating to the decision in respect of the Grafton Street store alone.

8 The decision to close all Irish stores on the 17th of March 2020 is pleaded in the plainest terms by Foot Locker. Not only is the fact of the decision to close all stores described in the Statement of Claim, but Foot Locker has also pleaded the reasons for such closure. This plea is denied at paragraph 14.1 of the Defence and Counterclaim. This discovery is therefore relevant to the dispute between the parties, and its relevance arises directly from the manner in which Foot Locker has chosen to plead its case. The discovery is necessary, in that without it Percy cannot realistically be expected to contest the plea at paragraph 12 of the Statement of Claim. As to proportionality, in his affidavit resisting the motion Foot Locker's solicitor (Kieran Kelly) says:-

“Discovery of this...