Mercroft Taverns Ltd [Trading as The Market Bar] v Layden Properties Georges Street Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Dignam |
| Judgment Date | 21 September 2022 |
| Neutral Citation | [2022] IEHC 545 |
| Court | High Court |
| Docket Number | [Record No. 2021 6296 P] |
[2022] IEHC 545
[Record No. 2021 6296 P]
THE HIGH COURT
Judgment of Mr. Justice Dignam delivered on the 21 st day of September 2022 .
This is my judgment in relation to the costs of an application by the Plaintiff for an interlocutory injunction in circumstances where the application did not proceed. There was agreement between the parties that the substantive matter would likely not proceed as any ongoing dispute would be referred to arbitration and that I should therefore determine the costs rather than reserving them to the trial.
For the reasons set out below, I am satisfied that the appropriate way to deal with the question of costs is to make no order.
There is a long history between the parties and, in reaching this view, I have considered all of the evidence and all of the historical background to the dispute but, in fact, the crucial period in respect of the injunction application and this costs application is the few days between Monday 8 th November and Friday 12 th November (when the application for an interim injunction was made) and between that date and the 16 th November, by which date undertakings had been given by both parties. It seems to me that the question of costs can and should be determined by reference to the events between those dates, the 8 th November and the 16 th November. I will therefore focus on that period, though in order to understand those events some reference has to be made to the background. To both Counsel's credit, they correctly focused their submissions on that period of time while referring to the historical background as part of the relevant context.
The Defendant is the owner of the well-known George's Street Arcade/South City Markets. Anyone who is familiar with this location in Dublin city centre will know that it has gates at South Great George's Street at one end and Drury Street at the other.
The Plaintiff is the current owner of the well-known Market Bar which has its main entrance on Fade Street.
By a lease dated the 22 nd June 1998 between the Defendant under its previous name, Farrig Limited, and the Plaintiff's predecessor in title, Byrnes (Chatham Street) Limited (“Byrnes”), Byrnes were granted, inter alia, a right of way over a portion of the Defendant's premises during business hours for all purposes in connection with the Byrnes' premises, the Market Bar, and outside of business hours for escape purposes only from the Market Bar. There is considerable detail in the affidavits and in the exhibits about fire safety, capacity of the Market Bar, and how this is a third emergency escape route which is only required if the number of patrons in the Market Bar exceeds a certain number. I do not need to engage with all of these details for the purpose of this application. Essentially the lease grants a right of way over a corridor from a corner of the Market Bar out into the main body of the Arcade and along the body of the Arcade to the street.
It appears to be common case that the route “ designated” for the purpose of the “ rights” was (and has been from the beginning) from the point where the corridor from the Market Bar meets the main body of the Arcade to the Drury Street gate of the Arcade.
It seems that in 2003, following the acquisition by the Plaintiff of the Market Bar from Byrnes, it, by agreement with the Defendant, fitted a hydraulic arm gate-opening mechanism to the Drury Street gates which automatically opens the gate upon being triggered by a fire alarm in the Market Bar.
The practice, or as it was referred to at the hearing and in some of the materials, the “ protocol”, introduced between the Plaintiff and the Defendant after the installation of this hydraulic arm gate mechanism, was for a padlock to be applied to the Drury Street gates by the Plaintiff each night after the Market Bar was closed and clear of staff and patrons. Counsel for the Plaintiff explained that under this protocol the day could be conveniently broken down into three sections: (i) daytime between the Arcade opening and the Arcade closing when the gates were fully open (the padlock was removed from the gate by the Defendant upon the Arcade opening in the morning); (ii) evening time when the Arcade was closed and the Market Bar still open (between approximately 6/7pm and approximately 3am) when the Drury Street gate would be closed and secured by the hydraulic arm gate mechanism but not padlocked; and (iii) night-time (between approximately 3am when the Market Bar closes and 8am when the Arcade opens)(when the padlock would be put on the Drury Street gate by the Plaintiff after the Market Bar closed and removed in the morning by the Defendant).
As a general comment, there can be no dispute but that both parties have legitimate concerns: the Defendant has to be concerned about security given that there are over forty other tenants in the Arcade, some of whom have open stalls rather than shops; and the Plaintiff has to be concerned that its fire exit routes are available and properly effective and that the rights which are conferred by the lease are effective
During the Covid restrictions on licensed premises the Plaintiff's bar was permanently closed and the Defendant's agents applied the padlock to the Drury Street gate each evening when the Arcade was closing. It seems that when the Market Bar reopened when the public health restrictions were lifted the parties reverted to the protocol referred to above.
However, serious issues arose between the parties in relation to the gate, the operation of the hydraulic arm opening mechanism and the operation of the protocol. There are stark disputes of fact in relation to many of these issues and I do not propose to resolve them or even to consider them in detail in the context of this costs ruling but, in summary, they revolve around claims by the Defendant that, inter alia, the hydraulic arm gate mechanism repeatedly malfunctioned causing the gate to open and close and that the Plaintiff's staff repeatedly failed to apply the padlock after the Market Bar closed for the night, and claims by the Plaintiff that while false alarms did cause the gate to open this never occurred outside Market Bar business hours and that the application of the padlock while the Market Bar was still open presented a danger because it frustrated the fire escape and caused damage to the Drury Street gate. This is just a flavour of some of the disputes between the parties.
Mr. McFadden, on behalf of the Plaintiff, deposes to the fact that in June 2020 he noticed that there was a padlock on the gate while the Market Bar was open and that it was agreed that the Defendant would not padlock the Drury Street gate when the Market Bar was open and that the Plaintiff would be given a key to apply the padlock at the end of each night. Then, Mr. McFadden states, he noticed a padlock on the gate between the 3 rd and 5 th December 2020, before the Market Bar reopened (licensed premises having been closed again due to public health restrictions), and he raised this with the Defendant. It seems it was agreed that the parties “ could revert to the old agreement from earlier in 2020”.
The “ agreement” that was reached in June 2020 and December 2020, while not described in these terms by Mr. McFadden, was, in effect, a reversion to the protocol that the gates would be padlocked by the Plaintiff's staff following closing, opened by the Arcade staff in the morning, and secured by the hydraulic arm mechanism only (no padlock) between Arcade closing and Market Bar closing, at which time the padlock would be applied again, ie. the protocol which had been in place between the parties for approximately seventeen years at that stage. I am not sure I understand the reference to an agreement that the Plaintiff would be “ given a key” as it had previously been the arrangement/protocol that the Plaintiff would have a key and would apply the padlock at the end of the night.
The protocol seems to have operated between December 2020 and November 2021. We then reach the crucial period leading directly to the injunction application.
On the 8 th November 2021 the padlock was applied to the Drury Street gates by the Defendant while the Market Bar was open. Ms. Layden explains this in her affidavit but there are clear disputes between the parties in this respect. It is not necessary to resolve them for the purpose of dealing with the costs and I therefore do not propose to address them. Mr. McFadden raised his concern about this with one of the Arcade building managers, Mr. Alex Keely, on the 8 th November 2021. It is worth noting at this stage that Ms. Layden says in her affidavit (filed in relation to the costs application) that when Mr. McFadden spoke with Mr. Keely, Mr. Keely suggested that Mr. McFadden should speak directly with Ms. Layden and that Mr. McFadden said that he would have no dealings with Ms. Layden. Mr. McFadden does not give an account of this conversation and does not deny Ms. Layden's account. Whether what Ms. Layden says is correct or not, the fact is that Mr. McFadden did not contact Ms. Layden directly either on the 8 th November or at any stage prior to the injunction application being moved on the 12 th November.
The following day, the 9 th November 2021, Ms. Layden sent an email on her own behalf and on Mr. Joe Layden's behalf to Mr. McFadden at 13.22pm. This was on foot of Mr. McFadden's conversation with Mr. Keely. Ms. Layden stated:
“Please be reminded that the securing of the Market Bar and the safety of its patrons are entirely your responsibility.
The Georges Street Arcade and the Market Bar are completely separate entities/businesses.
We are satisfied that we secure all our...
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