Jason Investments Unlimited Company v C & S Jewellery Ltd, Charlie Cullen and Suzanne Gilhooly
| Jurisdiction | Ireland |
| Judge | Ms. Justice Reynolds |
| Judgment Date | 25 May 2021 |
| Neutral Citation | [2021] IEHC 388 |
| Docket Number | [Record No. 2019/3385 P.] |
| Court | High Court |
| Date | 25 May 2021 |
[2021] IEHC 388
[Record No. 2019/3385 P.]
THE HIGH COURT
Costs – Vacant possession – Interlocutory relief – Parties seeking costs – Whether the parties were entitled to their legal costs
Facts: The plaintiff, Jason Investments Unlimited Company, applied to the High Court to obtain vacant possession of the property the subject matter of the proceedings. A written judgment was delivered on the 27th February, 2020 in respect of the plaintiff’s application. The plaintiff’s application for interlocutory relief was refused. Thereafter, the court facilitated an adjournment with a view to resolving the outstanding issue of costs. Such resolution was not achieved and the court was furnished with legal submissions from the parties, each party maintaining that it was entitled to its costs. The plaintiff maintained that it was forced to go to court so as to secure its contractual entitlements and was, therefore, entitled to its legal costs. The defendants, C & S Jewellery Limited, Mr Cullen and Ms Gilhooly, contended that not only did the plaintiff fail to satisfy a single one of the cumulative grounds for the granting of interlocutory relief in the case, but that the court held that the plaintiff had failed to come to court with “clean hands” insofar as it had failed to disclose that it had a subsidiary company trading as “Weir & Sons” jewellers in the vicinity of the property, a comparable business for the purposes of the application.
Held by Reynolds J that, in considering the issue of costs, and having had regard to the particular circumstances of the case, the appropriate matters to be taken into account were as follows: (a) the plaintiff’s failure to satisfy a single one of the cumulative grounds for the granting of interlocutory relief in the case; (b) the plaintiff’s failure to come to court with “clean hands” and its lack of candour; (c) the defendants’ failure to discharge the rental arrears until the matter came before the court for hearing; and (d) the defendants’ failure to pay rent on a monthly basis (in the terms of the undertaking furnished) between February and June, 2020.
Reynolds J held that, in all the circumstances, the appropriate order was to direct each party to bear its own costs in the matter.
Each party directed to bear its own costs.
EX TEMPORE JUDGMENT of Ms. Justice Reynolds delivered on the 25th day of May, 2021
A written judgment was delivered on the 27th February, 2020 in respect of the plaintiff's application to obtain vacant possession of the property, the subject matter of the proceedings herein. Thereafter, the court facilitated an adjournment with a view to resolving the outstanding issue of costs. Such resolution has not been achieved and the court has been furnished with legal submissions from the parties, each party maintaining that it is entitled to its costs.
I do not propose to regurgitate the issues in dispute between the parties in these proceedings as same have already been set out in the judgment. However, it is necessary to highlight some of the salient facts and findings for the purpose of resolving the costs issue.
In the proceedings, the plaintiff sought possession of the property on two grounds:-
-
(i) The failure of the first named defendant to pay rent due and owing, and
-
(ii) The plaintiff's exercise of a break option contained in the lease.
Pre-litigation correspondence had issued in the ordinary way comprising two warning letters to the first named defendant indicating that proceedings would issue unless all arrears of rent were discharged.
It is common case that at the time the interlocutory application issued, the balance due and owing in respect of rental arrears was €40,128.85.
At the date of the hearing of the application for injunctive relief, the defendants had discharged all rent arrears due. Furthermore, the first named defendant had, arising out of the exercise of the break option, claimed relief under Part II of the Landlord and Tenant (Amendment) Act, 1980 (“the 1980 Act”) and also relief against forfeiture.
The plaintiff's asserted position, however, was that the existence of a claim pursuant to Part II of the 1980 Act was no ground for refusing to grant injunctive relief and that there was no entitlement to relief against forfeiture despite the defendants having discharged the arrears in full shortly after the issue of proceedings.
This position was maintained despite the fact that the first named defendant (a company carrying on a similar business to the plaintiff) had been in occupation of the premises as a tenant for a significant period of time prior to the exercise of the break option and issuance of proceedings, and had built up substantial goodwill in relation to same.
The plaintiff's application for interlocutory relief was refused.
It is contended by counsel on behalf of the plaintiff that in circumstances where the court grants relief against forfeiture, it is common for costs to be awarded to a landlord. In this regard, reliance is placed on the decision in Whipp v. Mackey [1927] IR 372 at 385, wherein Kennedy C.J. stated as follows:-
...“Generally speaking, however, where the forfeiture is only for securing payment, and where there is no injury from the delay in payment, or only such injury that payment of a sum for interest and – if needs be – costs will be full compensation for it, the equitable relief will not be refused.”
To continue reading
Request your trial