The Board of Management of St. Patrick's School v Eoghan O'Neachtain Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Hunt
• Judgment Date: 05 March 2018
• Neutral Citation: [2018] IEHC 128
• Docket Number: Record No. 2018 No. 1384 P.
• Court: High Court
• Date: 05 March 2018

BETWEEN:

THE BOARD OF MANAGEMENT OF ST. PATRICK'S SCHOOL

PLAINTIFF

AND

EOGHAN O'NEACHTAIN LIMITED

DEFENDANT

[2018] IEHC 128

Hunt J.

Record No. 2018 No. 1384 P.

THE HIGH COURT

Landlord & Tenant – Landlord and Tenant Act 1980 – Expiration of license agreement – Car parking rights – Interim injunction – Strong defence – Adequacy of damages – Balance of convenience – Construction of agreement – Exclusive possession

Facts: The plaintiff sought an interim injunction for directing the defendant to vacate the school yard. The plaintiff contended that the license agreement between the parties for occupying the school yard for carrying out the car parking business for specified time limits had expired.

Mr. Justice Hunt granted an interlocutory injunction to the plaintiff. The Court held that the occupation of the school yard by the defendant fell short of constituting possession of the premises to the exclusion of the plaintiff. The Court scrutinised the contents of the agreement and found that the operation of the car business was limited to specified period of times and thus, the overall control of the premises rested with the plaintiff. The Court stated that the damages would be an adequate remedy for the defendant in case he succeeded at the trial.

JUDGMENT of Mr. Justice Hunt delivered on the 5th day of March, 2018

1 The plaintiff is a body corporate established pursuant to the provisions of the Education Act 1998, and is responsible for the management of St. Patrick's School, Lombard Street, Galway. The defendant is a limited liability company, having a registered office at Dublin Road, Oranmore, Galway.

2 For more than the last twenty years, the defendant or its predecessors have entered a series of written agreements with the plaintiff, permitting the defendant to carry on a car park business from the yard of the said school. There may have been some variations as between different agreements as to the precise hours at which this business might be carried on, but I am satisfied that these variations are not material. In essence, the defendant was entitled to run a commercial car parking operation from the school yard outside school hours during the week, at weekends and during the school holidays.

3 The plaintiff issued a plenary summons on 14th February, 2018, pleading that the defendant occupied the school yard for the aforesaid purposes pursuant to a licence agreement, which expired by efflux of time on 31st January, 2018. It is then pleaded, in effect, that the defendant has been a trespasser on the school premises since that date, and has not yielded up possession, despite lawful demand. The claim is for declarations that the previous agreements between the parties were in the nature of a licence, and for an injunction directing the defendant to vacate the yard in question. There are other reliefs claimed which are not material to the present application.

4 The plaintiff applied for an interim injunction on an ex parte basis on 15th February, 2018. Costello J. granted liberty to issue and serve a notice of motion seeking interlocutory relief on a short service basis. This notice of motion was issued and returnable to 21st February, 2018, and the matter was heard on that date. The plaintiff was represented by Mr. Micheál O'Connor, and the defendant by Mr. Conor Fahy.

5 Brother Niall Coll provided affidavit evidence on behalf of the plaintiff. Eoghan O'Neachtain, director, did likewise in respect of the defendant. It will be necessary to refer to certain aspects of those affidavits and exhibits. Mr. O'Connor very fairly conceded that, although the nature of the relief sought could be expressed in both positive and negative terms, he was essentially seeking injunctive relief of a mandatory nature against the defendant.

Interlocutory Injunctions

6 The principles which apply to the grant or refusal of an interlocutory injunction are well settled. The decision in Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88 outlines a number of relevant criteria. Firstly, the applicant must demonstrate a bona fide question to be tried. Secondly, damages must be demonstrated to be an adequate remedy in the event that the court ultimately finds against the party for whose benefit the injunction was granted. Thirdly, the granting of the injunction must lie within the balance of convenience. Finally, the court must consider the value of maintaining the status quo. In Allied Irish Banks v. Diamond [2012] 3 I.R. 549, Clarke J. noted that the Campus Oil test must be further informed by the underlying need to avoid the path that leads to the ‘ greatest risk of injustice’ (see pp. 570 – 571).

7 Where a mandatory interlocutory injunction is sought, the underlying principles require an applicant to achieve a higher standard than demonstrating a bona fide question to be tried. In such a case, the applicant must demonstrate that it has a ‘ very strong case’. As Clarke J. noted in the Diamond case:-

‘in order to minimise the overall risk of injustice the court requires a higher level of likelihood about the strength of the plaintiff's case before being prepared to make such an order.’

8 It has been held that property rights, in particular, are subject to this higher standard. In Dublin Corporation v. Burke [2001] IESC 81, which concerned a landlord and tenant dispute, the Supreme Court rejected an approach that would have allowed Dublin Corporation to remove the defendant from premises by way of interlocutory injunction. Geoghegan J. noted, inter alia:-

‘If the facts as set out in that letter prove correct it would seem likely that Mr. Burke would be held to have been a tenant from month to month of the unit which he occupied. If so, it is not suggested that that tenancy has ever been terminated. As long as it has not been terminated and assuming that the tenancy exists, Mr. Burke is entitled to occupy the unit in whatever form he wishes and irrespective of whether Landlord and Tenant Act rights would arise or not upon termination by notice to quit. But given the possibility of rights under the Landlord and Tenant Act, there can be no doubt, in my view, that if the position is to be viewed on the basis of balance of convenience, the balance of convenience can only be in favour of refusing an injunction in so far at least as it relates to the unit the subject matter of the alleged tenancy. It would be extremely speculative and difficult to assess damages and given that a solid property right might effectively be lost on foot of an interlocutory injunction I would not consider that damages could be an adequate remedy. But even before one comes to consider the balance of convenience, I am extremely doubtful that there would even be a prima facie case for an injunction where a defendant with some back-up evidence (if ultimately accepted) is alleging an actual tenancy in the premises and the plaintiff is for all practical purposes merely sceptical of the truth of the allegation.’

9 I believe that this passage is of particular assistance in the determination of the present issue. If the evidence suggests the possibility of a tenancy and/or consequent rights under the Landlord and Tenant legislation, then the plaintiff will not be entitled to any form of mandatory relief.

Factual background

10 I am satisfied that the affidavit evidence establishes the following facts in relation to this matter:-

(i) The arrangement whereby the school yard was used as a car park dates back to 1997. Mr. O'Neachtain's late father, Martin O'Neachtain, operated the business until 2002, when Eoghan O'Neachtain took over. He incorporated the defendant company in 2009 for the purpose of running and operating the car park, and Mr. O'Neachtain had assisted his late father to that end for a number of years previously.

(ii) This arrangement was governed by written agreements from 2002 up to the 31st January, 2018. The plaintiff characterises the arrangement contemplated by these agreements as a licence, and the defendant is equally adamant that it is a tenancy.

(iii) The most recent written agreement, made between the parties on 23rd December, 2016, does not purport to nominate the nature of the relationship thereby created, and I assume that this is the position applicable to previous such agreements. I was not informed that there was any material difference in this respect.

11 As the expiry date of the agreement of 23rd December, 2016, approached, it appears that there was some informal contact between the parties culminating in a course of correspondence that commenced with a letter from Mr. O'Neachtain to Br. Coll dated 21st January, 2018. The operative part of that letter is as follows:-

‘As you are aware I have leased St. Pat's car park on an ongoing basis for upwards of fifteen years and previously the car park was leased by my father, Martin O'Neachtain between 1997 and 2002 when I took over the lease of the school car park. Based on the successive leases Eoghan O'Neachtain Limited has acquired a business equity in the premises.

The rolling successive leases run from February 1st every year to the 31st of January. Since early December I have tried to make contact on several occasions with the Principal of St. Pat's, Ms. Marian Barrett, and today with your good self as Chairman of the Board of Management with a view to settling the terms of a continued lease which will commence on 1st February, 2018.

As you will appreciate the Car Park is a business and I as the proprietor and director of Eoghan O'Neachtain Ltd have a duty to my staff to have matters settled in relation to the lease prior to 1st February.

If I do not hear from you in advance of that date, Eoghan O'Neachtain Limited will continue to operate the car park on the same terms as that of the lease currently in place.’

12 On 31st January, 2018, the solicitors representing the plaintiff...