K.W. Investment Funds ICAV v Lorgan Leisure Ltd [2020] IEHC 132 (13 March 2020)

JUDGMENT of Mr. Justice Denis McDonald delivered on 13 March, 2020

The application before the court

1. In the interlocutory motion before the court, the plaintiff seeks a mandatory order

directing the defendant to deliver up vacant possession of the premises known as

Leisureplex, Stillorgan, County Dublin (“the premises”). The plaintiff claims to be entitled

to immediate possession of the premises in circumstances where the plaintiff has

exercised a break option in the Short Term Business Letting Agreement between the

parties dated 26th February, 2019 (“the 2019 agreement”) by giving three months’ notice

to the defendant on 10th October, 2019 expiring on 10th January, 2020. The plaintiff

also claims, on a number of grounds, that the defendant has no right to a new tenancy in

the premises under Part II of the Landlord and Tenant (Amendment) Act, 1980 (“the

1980 Act”). In the first place, the plaintiff relies on a written renunciation of rights

executed by the defendant on 26th February, 2019. Secondly, the plaintiff maintains that

the defendant does not have 20 years’ occupation of the premises as required by s. 13

(1) (b) of the 1980 Act. Thirdly, the plaintiff contends that the defendant is estopped

from claiming a new tenancy under Part II of the 1980 Act. Fourthly, in reliance on the

fact that the plaintiff has the benefit of a planning permission for a development on the

site of the premises (which involves the demolition of the premises) the plaintiff says

that, as a consequence of s. 17 (2) (a) (i) of the 1980 Act (addressed further in para. 28

below), the defendant will not be entitled to a new tenancy in the premises.

2. The defendant contends that the 2019 renunciation is restricted to its right to a new

tenancy under s. 13 (1) (a) of the 1980 Act based on five years’ business user. However,

the defendant claims that the renunciation does not extend to its right to a new tenancy

under s. 13 (1) (b) of the 1980 Act based on 20 years’ continuous occupation. Prior to

the commencement of these proceedings on 19th December, 2019 the defendant, on

12th December, 2019, served a notice of intention to claim relief under s. 20 of the 1980

Act. In that notice, the defendant intimated an intention to claim a new tenancy under

Part II of the 1980 Act or, in the alternative, compensation for disturbance. The notice

claimed that the premises has been continuously in the occupation of the defendant or its

predecessors in title for a period of more than 20 years. Subsequently, on 9th January,

2020 the defendant issued a Landlord and Tenant Civil Bill in the Circuit Court seeking an

order granting a new tenancy in the premises on terms to be fixed by the Circuit Court

under s. 18 of the 1980 Act. In the alternative, the Civil Bill claims compensation for

3. In circumstances where Part II of the 1980 Act confers jurisdiction on the Circuit Court to

hear and determine the claim for a new tenancy, it was strongly argued on behalf of the

defendant that the plaintiff’s application for an interlocutory order for possession is an “ill-

conceived attempt to circumvent the entire statutory scheme governing landlord and

tenant relations” and that there is no authority to support what counsel for the defendant

described as the “radical proposition” advanced on behalf of the plaintiff that a

commercial tenant, who is not in breach of the terms of the tenancy, with a proper claim

to renewal rights (or compensation in lieu) can be denied the right to apply for relief from

the Circuit Court under the 1980 Act through the mechanism of an interlocutory

application mounted by the plaintiff to the High Court. In short, the defendant argues

that the Circuit Court is the appropriate forum in which to resolve the present dispute and

that the application for an interlocutory injunction should not be entertained.

4. It will, accordingly, be necessary to consider whether it is permissible for the High Court

to intervene in this case notwithstanding the existence of the Circuit Court proceedings.

If it is appropriate to intervene, it will then be necessary to consider whether the plaintiff

has demonstrated that it has a strong case sufficient to warrant the grant, at an

interlocutory stage, of a mandatory order for possession. If the plaintiff satisfies that

hurdle, it will be necessary to consider whether the balance of convenience lies in favour

of the grant of the order sought or whether the balance of convenience favours the status

quo such that the defendant should be entitled to remain in possession of the premises

pending the determination of these proceedings. Having regard to the case law discussed

below, it may also be necessary to consider whether, even if the plaintiff is entitled to a

mandatory order, a stay should be placed on that order pending the determination of the

proceedings commenced by the defendant in the Circuit Court. Before doing so, it is

necessary, in the first instance, to describe the underlying facts in more detail and also to

outline the respective positions taken by the parties.

5. Although the premises are currently described as Leisureplex, they were previously well

known as the Stillorgan Bowl which was the name of the facility when it first opened in

1963. In addition to traditional ten pin bowling, the premises also provide facilities for

snooker, pool, a Quasar games room, a children’s adventure play area and a number of

amusement machines. The facility is used by a number of clubs and community groups

including several Special Olympics clubs. The defendant currently employs 55 staff at the

premises. According to the affidavit of Ciaran Butler sworn on behalf of the defendant on

21st January, 2010, several of the staff employed at the premises have never worked

6. The facility was originally developed by a company called Ten Pin Bowling Company of

Ireland (“Ten Pin Bowling”) which was unconnected with the defendant. In 1995 there

was a corporate reorganisation under which a new company known as Amesview Ltd

(“Amesview”) became a tenant of the property and a twenty-year lease dated 26th

February, 1996 (“the 20-year lease”) was executed by a number of parties including

Amesview and Ten Pin Bowling. Under the 20-year lease, the relevant term commenced

on 29th December, 1995.

7. Not long after the corporate reorganisation described above, a company called

Entertainment Enterprises Ireland Ltd (“EEI”) purchased all of the shares in Ten Pin

Bowling, Amesview and in another corporate entity which was also a party to the 20-year

lease. Thereafter, there were a number of assignments of the tenant’s interest to

different companies within the EEI group but ultimately on 8th August, 1999 there was an

assignment of the tenant’s interest to Penmay Ltd (which is a former name of the

8. From 8th August, 1999 to 1st December, 2006, the defendant was the tenant and

occupant of the premises (under the name Penmay Ltd up to October 1999 and thereafter

under the name Leisureplex Stillorgan Ltd). On the latter date, a company called

Tenderbrook Ltd (“Tenderbrook”), in the Treasury Holdings group, acquired the landlord’s

interest in the premises. On the same date, the defendant surrendered the leasehold

interest in the property and a new lease was granted to a company called Vencam Ltd

(“Vencam”) which the defendant maintains is part of the EEI group of companies. It is

the defendant’s case that both it and Vencam are subsidiaries of Entertainment

Enterprises Trading Ltd (“EET”). On the same day a three-year letting agreement was

executed between Tenderbrook and Vencam but the defendant says that it continued to

operate the business at the premises throughout that period. In the affidavits sworn on

behalf of the defendant, a number of documents are exhibited in support of its case that

the defendant continued to occupy the premises notwithstanding the lease to Vencam.

These include (a) documents evidencing that the employees at the premises continued to

be employed by the defendant; (b) rates demands issued by the local authority (Dun

Laoghaire Rathdown County Council) to the defendant; and (c) Public Music and Singing

Licenses issued by the District Court to the defendant which were necessary for certain

aspects of the defendant’s business at the premises.

9. The plaintiff has suggested that any such occupation of the premises by the defendant

after 1st December, 2006 would have been contrary to clause 2 (c) of the 2006 lease

under which Vencam agreed with Tenderbrook not to assign, sublet or part with or share

the possession of the premises without the prior consent in writing of the landlord. While

there is no evidence of any such consent having been forthcoming from Tenderbrook,

there is equally no evidence that Tenderbrook ever objected to the continued presence of

the defendant in the premises at that time.

10. A new Short Term Business Letting Agreement was executed between Tenderbrook and

the defendant on 13th April, 2011 for a term of three years from 1st March, 2011 to 28th

February, 2014 at an annual rent of €355,000 payable quarterly in advance. In advance

of execution of the 2011 letting agreement, a letter was written on 7th April, 2011 by

Ciaran Butler on behalf of Vencam (Mr. Butler is also a director of the defendant) to

Treasury Holdings in which he referred to the 2006 letting agreement and confirmed that

Vencam ceased trading on 13th November, 2010 and that:

“All and any occupants, licensees, successors in title or assignees (whether permitted or

otherwise) of the Premises pursuant to the lease duly vacated the Premises on 13th

11. Subsequently, Tenderbrook was placed in receivership. By a further Short Term Business

Letting Agreement made between the receivers of Tenderbrook and the defendant, the

premises were again let to the defendant for a term of two years from 1st March, 2014 to

29th February, 2016 at an annual rent of €220,000.00 together with value added tax. At

the same time, a Renunciation was executed on behalf of the defendant which recorded

the agreement of the defendant, under the provisions of s. 47 of the Civil Law

(Miscellaneous Provisions) Act, 2008 (“the 2008 Act”) renouncing any entitlement which

the defendant might have under the provisions of the Landlord and Tennant Acts to a new

tenancy in the premises on the termination or expiration of the term of the letting

agreement or any extension or renewal thereof.

12. A further Short Term Business Letting Agreement was executed between the receivers on

behalf of Tenderbrook and the defendant on 17th February, 2016 for a term of one year

from 1st March, 2016 to 28th February, 2017 at an annual rent of €220,000.00 plus value

added tax. Again, a renunciation was executed at the same time by the defendant in

similar terms to the renunciation executed in 2014.

13. According to the affidavit of Jason Byers sworn on behalf of the plaintiff on 20th

December, 2019, the plaintiff acquired the landlord’s interest in the premises in April

2016 with a view to redeveloping the premises in the “relatively short term”. In the same

affidavit Mr. Byers explains that the premises forms part of a wider block of lands

acquired from the County Council and it was the plaintiff’s intention to develop the entire

of the lands comprised in that block.

14. After it acquired the landlord’s interest in 2016, the plaintiff entered into a Short Term

Business Letting Agreement with the defendant for a term of two years commencing on

1st March, 2017 and concluding on 28th February, 2019 at an annual rent of €220,000.00

together with value added tax. This contained a landlord break option which allowed the

plaintiff to terminate the agreement by four months’ prior written notice to the defendant.

At the same time a Deed of Renunciation was executed by the defendant on 9th March,

2017 which was in more detailed terms than the previous renunciations executed in 2014

and 2016. However, in common with the earlier renunciations, the Deed recorded that

the renunciation was pursuant to s. 47 of the 2008 Act.

15. According to the affidavit evidence before the court, there was discussion between the

parties in the period after 2016 in relation to the inclusion of plans for a bowling alley in

any future development of the premises by the plaintiff. However, on 24th January,

2019, Mr. Byers (along with a colleague, Mr. Peter McKenna) met with Mr. Ciaran Butler

and Ms. Mary Rose O’Shea of the defendant to update the defendant in relation to the

plaintiff’s plans for the premises. At that meeting Mr. Butler and Ms. O’Shea were

informed that the defendant intended to proceed with a development which did not

include a bowling alley. According to Mr. Byers, the defendant was informed at that time

that the plaintiff would require vacant possession of the property in order to proceed with

its proposed development. Mr. Butler, in response, says on affidavit that he was

disappointed by this news but that he did not express this in any overt way. However, in

the same affidavit, he stressed that he never (either at this meeting or at any other time)

gave any assurance to any representative of the plaintiff that the defendant would be

prepared to offer up vacant possession. Mr. Butler also states that at no time did he ever

engage in any discussions with the plaintiff about the “legal rights” of the defendant.

16. In the following month (February 2019) a further meeting took place between the parties

at which Mr. Butler enquired as to whether the plaintiff would consider an offer from the

defendant to purchase the premises. This proposal was rejected by the plaintiff.

17. In February 2019, the plaintiff was involved in pre-planning engagement with An Bord

Pleanála. This pre-planning consultation was necessary in circumstances where the

plaintiff proposes to carry out a strategic housing development. In the same month, on

26th February, 2019 a further Short Term Business Letting Agreement was executed

between the parties which contained a landlord break option in Clause 4.4 (exercisable on

three months’ prior written notice). According to the affidavit evidence, a period of two

months was initially proposed by the plaintiff but, at the request of the defendant, this

was extended to three months. At the same time a further Deed of Renunciation was

executed by the defendant in similar terms to the Deed which had been executed in 2017.

Again, the renunciation was expressly stated to be made pursuant to the provisions of s.

47 of the 2008 Act. At this point, it may be useful to note that s. 47 of the 2008 Act

amended s. 17 (1) (a) of the 1980 Act (which sets out a number of circumstances under

which a tenant will not be entitled to a new tenancy under Part II) by substituting the

following for sub-paragraph (iiia): -

“(iiia) if section 13(1)(a) (as amended by section 3 of the Landlord and Tenant

(Amendment) Act 1994 ) applies to the tenement, the tenant has renounced in

writing, whether for or without valuable consideration, his or her entitlement to a

new tenancy in the tenement and has received independent legal advice in relation

to the renunciation…”.

18. Section 17 (1) (a) (iiia) of the 1980 Act had previously been inserted by s. 4 of the

Landlord and Tenant (Amendment) Act, 1994 which was in more restrictive terms. In

particular, it required that the “tenement” had been wholly and exclusively used as an

office. The amendment made by s. 47 of the 2008 Act is not qualified in that way and

would apply to any business user which satisfies the requirements of s. 13 (1) (a) of the

19. It may be necessary at a later point in this judgment to consider the terms of the 2019

Deed of Renunciation in more detail. The plaintiff vehemently contends that the Deed of

Renunciation was sufficient to extend to any right to a new tenancy under Part II of the

1980 Act. However, the defendant argues that the Deed applies only to the right to a

new tenancy that arises under s. 13 (1) (a) of the 1980 Act (namely the five-year

business user provision) and that it does not apply to the alternative right conferred by s.

13 (1) (b) which allows a claim to be made for a new tenancy where 20 years’ continuous

occupation can be shown. The defendant also argues that it is not lawful under the 1980

Act to renounce the right to a new tenancy based on 20 years’ business user. In this

context, the defendant draws attention to the manner in which the 1980 Act was

amended in the case of residential tenancies. While s. 17 (1) (iiib) of the 1980 Act (as

inserted by s. 191 (2) of the Residential Tenancies Act, 2004 (“the 2004 Act”)) authorises

a renunciation of a right to a new tenancy based on 20 years continuous occupation, the

defendant argues that this applies solely to residential tenancies and does not extend to a

renunciation of the s. 13 (1) (b) right in respect of other forms of tenancy. The defendant

argues that, insofar as the plaintiff contends that any of the Deeds of Renunciation extend

to the right available to the defendant under s. 13 (1) (b), the renunciation is void. The

defendant relies on s. 85 of the 1980 Act which provides:-

“85.— (1) So much of any contract, … as provides that any provision of this Act shall not

apply in relation to a person or that the application of any such provision shall be

varied, modified or restricted in any way in relation to a person shall be void.

(2) Subsection (1) does not apply to a renunciation referred to in —

( a ) subparagraph (iii a ) (inserted by section 47 of the Civil Law (Miscellaneous

Provisions) Act 2008), or

( b ) subparagraph (iii b ) (inserted by section 191 of the Residential Tenancies Act

of section 17(1) (a).”

20. The plaintiff rejects the interpretation of the 1980 Act put forward by the defendant. In

addition, the plaintiff emphasises the course of conduct between the parties and, in

particular, draws attention to the fact that, although the defendant, on its own case, could

have applied for a new tenancy at any time after December 2015, it did not do so but

instead sat back and allowed the plaintiff to expend significant expense and invest

substantial time in its plans for the development of the property without ever raising its

claimed entitlement to a new tenancy. Furthermore, the plaintiff says that the defendant

entered into a series of short term letting arrangements (accompanied by Deeds of

Renunciation) which were clearly designed to ensure that the landlord would be in a

position to proceed with development works at an early opportunity once all necessary

permissions and consents for the development had been obtained. In the course of his

submissions, counsel for the plaintiff also highlighted in this context the negotiations in

respect of the 2019 letting agreement during which the defendant sought three months’

notice of the exercise of the landlord’s break option rather than two months as originally

proposed by the plaintiff. Counsel urged that it made no sense to do so if, at all times,

the defendant intended to claim relief under Part II of the 1980 Act.

21. On 24th August, 2019, the plaintiff made an application direct to An Bord Pleanála in

respect of a strategic housing development comprising the demolition of the existing

buildings on site (including the Leisureplex and associated structures) and the

construction of a development (ranging in height from two to eight stories) of 232 “build-

to-rent” apartments, two retail shops and four restaurants or cafés together with

associated infrastructure. The defendant was duly notified by the plaintiff that the

application had been made. In the course of the affidavit evidence and the submissions,

the plaintiff highlighted that the defendant had not objected to the proposed

development. However, the defendant’s response on affidavit was that landlord and

tenant issues were not a matter for An Bord Pleanála.

22. As noted above, the plaintiff exercised the landlord break option available under Clause

4.4 of the 2019 Short Term Business Letting Agreement and, on 10th October, 2019,

gave three months’ notice to the defendant expiring on 10th January, 2020. It should be

noted that the latter date is subsequent to the commencement of these proceedings but

no point was taken in that regard by the defendant in the course of the hearing before

me. I assume that the plaintiff believes that it was entitled to commence proceedings in

advance of the date of expiry of the notice in circumstances where it became apparent in

December 2019 that the defendant was not going to vacate the premises in January

23. On 5th December, 2019 An Bord Pleanála granted permission for the proposed

development. On the same day, Mr. Byers notified Mr. Butler and Ms. O’Shea of the

defendant by email of the fact that permission had been granted. On 12th December,

2019 Mr. Butler sought a meeting with Mr. Stefan Foster of the plaintiff. That meeting

took place on the following day. At that meeting Mr. Foster informed Mr. Butler that the

plaintiff intended to start works on the site once the defendant had vacated the premises

on 11th January, 2020. However, at that meeting, Mr. Butler handed an envelope to Mr.

Foster enclosing the notice of intention to claim relief under Part II of the 1980 Act. In

para. 49 of his affidavit sworn on 20th December, 2019 Mr. Byers says that the plaintiff

was very surprised to receive the notice to claim relief. In the same para., Mr. Byers

“Although the Plaintiff had been engaging with the Defendant since 2016, had entered

into two short term letting agreements with it, and had kept it informed through

2019 of its redevelopment plans, the Defendant had never previously suggested

that it had or could have any entitlement to a new tenancy. Indeed, in

circumstances where the Defendant had executed deeds of renunciation in respect

of those short term letting agreements, discussions had at all times proceeded on

the basis that the Defendant had no such entitlement. I believe that the belated

and unfounded assertion of such an entitlement is calculated to cause financial loss

to the Plaintiff….”

24. In response, in para. 32 of his affidavit, Mr. Butler says that this averment by Mr. Byers is

“not correct”. Mr. Butler continues: -

“I was of the view since 2016 that the Defendant has a statutory right to claim relief

pursuant to the 1980 Act, and that the Defendant never renounced that right under

Section 13 (1) (b) …. Indeed, I believe that Mr. Byers has missed the context of the

discussions that took place between 2016 through 2018 and that neither he nor the

Plaintiff should have been surprised to receive the Defendant’s notice to Claim

Relief as this was our first reaction to the Landlord’s declaration that it intended to

terminate our business. We were fully aware of Tenancy rights and never felt

obliged to voice these rights in the discussions as it did not seem to be required

until we received the notice to vacate the premises”.

25. In turn, when Mr. Byers came to swear a replying affidavit on 27th January, 2020, he did

not contend that the defendant had ever expressly stated that it did not intend to claim a

new tenancy. However, in para. 14 of this affidavit, Mr. Byers stated:-

“Despite having been aware that a bowling alley would not form part of the Development

since January 2019, the Defendant did not submit any observations … in respect of,

or object to, the … application for planning permission, which was subsequently

lodged in August 2019. I am advised and believe that, by executing deeds of

renunciation, agreeing to the inclusion of a break clause in the 2019 Letting

Agreement, not objecting to the planning application for the redevelopment of the

Premises and not ever suggesting that it retain statutory tenancy rights, the

Defendant represented to the Plaintiff that it did not have and would not claim such

statutory tenancy rights and would vacate the Premises when the break option was

exercised. The Plaintiff relied on this representation to its detriment. Had it known

that the Defendant intended to claim that it retained statutory tenancy rights, it

would not have entered into the 2019 Letting Agreement and would have litigated

the issue of the Defendant’s entitled (sic) to statutory tenancy rights at a time

when it would have been possible to do so without causing delay to the

redevelopment of the Premises. In the circumstances, I am advised and … believe

that it would be inequitable if the Defendant were permitted to rely on its alleged

entitlement to statutory tenancy rights and it is estopped from doing so”.

26. This averment on the part of Mr. Byers was met with a reiteration in para. 27 of Mr.

Butler’s next affidavit sworn on 3rd February, 2020 that: -

“I wish to clarify categorically that the defendant never made any such representation to

the effect that it would not claim statutory tenancy rights based on long possession.

Indeed, the Defendant’s statutory tenancy rights were never even discussed”.

27. The plaintiff claims that it will be exposed to very considerable financial loss if the

injunction sought is not granted. Although it has not yet entered into any contract with a

contractor for the construction of the proposed development, the plaintiff claims that it is

ready to enter into such a contract. No details of its engagement with any prospective

contractor have been provided in the affidavit evidence before the court. However, Mr.

Byers, in para. 63 of his affidavit sworn on 20th December, 2019 suggests that

construction inflation is running at approximately 6% to 7% and that this upward trend is

expected to continue through 2020. Mr. Byers claims that, based on current estimated

construction costs, this could amount to an increase in costs of €400,000 per month or €5

million per year. The plaintiff contends that the defendant will not be in a position to

meet any claim for damages. In response, the defendant maintains that it is a substantial

business with assets worth over €1.2 million and that it has consistently paid the current

annual rent of €220,000 together with VAT and that it has always discharged its

obligations promptly. The defendant says that the plaintiff’s application, if successful, will

put it out of business with significant knock-on consequences for its 55 employees. It is

also submitted on behalf of the defendant that the plaintiff’s contention that it will suffer

financial loss is speculative and vague. In addition, the defendant maintains that the

plaintiff can have no right to any award of damages in circumstances where, pending the

determination of the proceedings in the Circuit Court, the defendant is entitled under s.

28 of the 1980 Act to remain in occupation of the premises. Section 28 of the 1980 Act

provides as follows: -

“Where an application is pending under this Part for a new tenancy … and the pre-existing

tenancy was terminated otherwise than by ejectment or surrender the tenant may,

if he so desires, continue in occupation of the tenement from the termination of the

tenancy until the application is determined by the Court or, in the event of an

appeal, by the final appellate court, and the tenant shall while so continuing be

subject to the terms (including the payment of rent) of such tenancy, …”.

28. The plaintiff maintains that there is no substance to the suggestion that the defendant will

suffer irreparable harm in the event that the relief sought is granted at this stage. In this

context, it draws attention to the fact that it now has the benefit of a planning permission

from An Bord Pleanála for a development which involves the demolition of the existing

buildings on site. In those circumstances, the plaintiff says that s. 17 (2) (a) (i) of the

1980 Act applies and that, accordingly, the defendant will not be entitled to a new

tenancy under Part II even if the defendant is correct in its contention that the Deed of

Renunciation is void. Section 17 (2) (a) (i) provides as follows: -

“(2) (a) A tenant shall not be entitled to a new tenancy under this Part where it appears

to the Court that—

(i) the landlord intends or has agreed to pull down and rebuild or to reconstruct the

buildings or any part of the buildings included in the tenement and has planning

permission for the work, …”.

29. The defendant, however, argues that, under Part II of the 1980 Act, it will be entitled to

remain in occupation of the premises pending the determination of the Circuit Court as to

whether it is entitled to a new tenancy or whether, instead, it is entitled to compensation

for disturbance. The defendant submits that this opportunity to remain in the premises

pending the determination of the claim under Part II is essential to the survival of the

defendant’s business. The defendant argues that s. 28 of the 1980 Act (which operates

whether or not s. 17 (2) (a) (i) applies) provides an important breathing space to a

tenant to enable the tenant to find new premises in the event that the landlord is entitled

to rely on any of the factors outlined in s. 17 (2) (a). In contrast, if the defendant is

required to immediately vacate the premises (as the plaintiff seeks), it will be left with

nowhere from which to carry on its business. In addition, the defendant says that the

fixtures which currently exist within the premises are not capable of being removed and

that, as a consequence, the defendant would have to start from scratch if it is to find new

The issues which require to be considered

30. Having regard to the summary of the relevant facts and the respective positions taken by

the parties, the following issues fall for consideration by me: -

(a) In the first place, it will be necessary to assess whether it is appropriate for the

High Court to intervene in a case of this kind in circumstances where there are

currently proceedings pending before the Circuit Court in which the defendant seeks

a new tenancy pursuant to Part II of the 1980 Act. In this context, it is important

to bear in mind that, in enacting the 1980 Act, the Oireachtas, specifically

designated the Circuit Court as the relevant court to hear and determine claims

under the 1980 Act. Section 3 (1) defines “the Court” for this purpose as the

Circuit Court. In addition, s. 8 expressly states that the jurisdiction conferred by

the 1980 Act on the Circuit Court “shall be exercised by the Judge of the Court for

the time being assigned to the Circuit in which are situate the premises… in relation

to which the jurisdiction is exercised”. In the present case, the relevant Circuit

Court is the Dublin Circuit Court.

(b) If I conclude that the High Court should intervene in this case, I must then consider

whether the plaintiff has established a sufficiently strong case (meeting the

standard set out in the decision of the Supreme Court in Lingam v. Health Service

Executive [2006] ELR 137) to warrant the grant of interlocutory relief and

consider where the balance of convenience lies in accordance with the principles set

out in the judgment of the Supreme Court in Merck Sharpe & Dohme Corporation v.

Clonmel Healthcare Ltd [2019] IESC 65;

(d) If I reach the conclusion that it is appropriate to grant the interlocutory injunction

sought, I must also consider whether, in accordance with the case law discussed

below (including the decision of Finlay Geoghegan J. in Crofter Properties Ltd v.

Genport Ltd [2007] IEHC 80 and the decision of Twomey J. in Ferris v. Markey Pubs

Ltd [2019] IEHC 117), a stay should be placed on any order made by the court in

these proceedings to last until the outcome of the Circuit Court proceedings.

31. I now deal, in turn, with each of the above issues (to the extent that it is necessary to do

The jurisdiction of the High Court to intervene

32. This issue has been addressed in a number of decisions from which it appears that the

High Court can, in appropriate circumstances, resolve issues of the kind which arise in

these proceedings notwithstanding the existence of parallel proceedings in the Circuit

Court under Part II of the 1980 Act. Based on the case law discussed below, it appears

that the High Court can proceed in this way where it is satisfied, in the circumstances of a

particular case, that there is a serious danger that justice would not be done if the court

declined to exercise jurisdiction. The case law suggests that the court may intervene in at

least two circumstances: -

(a) Where it is clear that the application pending in the Circuit Court by a tenant has no

prospect of success; or

(b) where the plaintiff establishes a sufficient degree of urgency to persuade the High

33. There is a very deep chasm between the parties as to the correct approach to be taken in

this case. In view of the depth of the dispute between the parties as to the appropriate

approach to be taken in relation to this issue, I believe that it is important to carefully

consider the existing authorities with a view to identifying the principles that should be

applied in determining whether the High Court should accept jurisdiction in an individual

case. The first relevant authority is the decision of O’Byrne J. in Walpoles (Ireland) Ltd v.

Dixon (1935) 69 ILTR 232 which was affirmed on appeal by the Supreme Court. In that

case, it was clear that the claim by the defendant to a new tenancy under the Landlord

and Tenant Act, 1931 could not succeed in circumstances where the tenant of a property

in Suffolk Street (which was to be redeveloped by the linen merchants, Walpole Brothers)

had entered into a tenancy agreement for a period of nine months which was expressly

stated to be for the temporary convenience of the landlord. As such, it was not a

tenement within the meaning of s. 2 of the 1931 Act. In those circumstances, O’Byrne J.

entertained proceedings by the landlord in which the landlord sought immediate

possession of the property. O’Byrne J. granted the order sought. Based on the relatively

short report, it would appear that this order was made on the hearing of the summons.

There is nothing in the report to suggest that the plaintiff had applied for an interlocutory

34. At p. 233 of the report, O’Byrne J. explained the rationale for his decision in the following

“Mr. Campbell, who appears for the defendant, says that his client has served a notice

under [the 1931 Act], and that the issue raised … will come on for hearing in the

Circuit Court; and that pending such hearing I should adjourn this action. I would

certainly take that course if I thought there was any substantial ground on which

such application might be granted, but in my opinion, having regard to the facts of

the case, and to the documents and to the provisions of the Act of 1931, such an

application could not possibly succeed. Mr. Campbell relied on Section 38… which

provides that where an application under the Act is made … for a new tenancy, the

tenant may … continue in occupation of the tenement to which such application

relates from the expiration of such tenancy until such application is heard by the

Court …. The difficulty which arises on the threshold of this case … is that the

premises … do not seem to me to come within the definition of a tenement in

Section 2 …. That section contains various definitions of a ‘tenement’ …. One of the

conditions is that the contract of tenancy was not a letting which was made for the

temporary convenience of the lessor…. It has not been suggested in this case that

the arrangement made between the parties and contained in the tenancy

agreement was a bogus arrangement, and that being so, then it is clear that the

letting was made, as it is expressed to be made, for temporary convenience. For

these reasons I have come to the conclusion that this tenancy is, by the terms of

the Act, excluded from its provisions and therefore the application to allow this

action to stand over pending the decision of the Circuit Court cannot be granted. In

my opinion, no defence has been shown to the action, and I must therefore give

judgment for possession of the premises”.

35. It is evident from his judgment that O’Byrne J. came to a clear conclusion that the tenant

in that case had no prospect of successfully maintaining a claim for a new tenancy under

the 1931 Act (which was then in operation). It is also clear from his judgment that if he

had thought that there was any substantial ground on which the Circuit Court might grant

the application for a new tenancy, the outcome would have been different. As noted

above, the decision of O’Byrne J. was affirmed by the Supreme Court on appeal although

the judgment of the Supreme Court does not appear to be available. The next case which

addressed a similar issue was Kenny Homes & Co. Ltd. v. Leonard, High Court,

unreported, 11th December, 1997 in which Costello J. (as he then was) came to the

conclusion that the High Court, having regard to the “particular urgency” of the case,

should not decline jurisdiction to hear and determine the claim for repossession of

property from the tenant. His decision was upheld on appeal by the Supreme Court in a

judgment delivered by Lynch J. (Supreme Court, unreported, 18th June, 1998). The

underlying urgency of the application is explained in the judgment of Lynch J. in the

Supreme Court. It is clear from that judgment that there were two particular reasons

why the case was very urgent: -

(a) In the first place, notwithstanding the presence of a petrol filling station on the site

the subject matter of the proceedings, there was no policy of insurance in place;

(b) The premises were in a designated area. The designation was subject to time limits

and the plaintiff was exposed to very substantial loss if it was unable to avail of the

incentives available for that designated area in the event that the development did

36. It is important, in my view, to bear in mind that, although Costello J. held that the High

Court can exercise jurisdiction in such a case, he nonetheless stressed that issues in

relation to a contested claim for a new tenancy should ordinarily be determined in the

Circuit Court. At p.p. 4-5 of his judgment he explained why the High Court should not

decline jurisdiction in the particular circumstances of the case as follows: -

“It was submitted that the court had no jurisdiction to grant an injunction because of the

proceedings pending in the Cork Circuit Court under the 1980 Act. It was urged that

(a) exclusive jurisdiction was given to the Circuit Court under the 1980 Act to

determine Lecorne's right to a new tenancy, (b) that this court had no jurisdiction

to determine the issues arising on that application, (c) that by virtue of section 28

of the 1980 Act Lecorn (sic) were entitled to retain possession … pending their

application for a new tenancy, (d) that accordingly the injunction claimed could not

be granted. I disagreed with these submissions. I concluded that (a) the Circuit

Court had exclusive jurisdiction under the 1980 Act to hear and determine claims

for a new tenancy, (b) that the present proceedings were for injunctive relief based

on a claim that the defendants were trespassers (c) that the 1980 Act did not

deprive this court of jurisdiction to hear such a claim, (d) that ordinarily, where a

right to a new tenancy under the 1980 Act was contested on the ground that a

‘tenancy’ did not exist or that the premises were not a ‘tenement’ these issues

should be determined in the Circuit Court and this Court should stay proceedings in

which these issues were raised, that (e) because of the particular urgency in this

case the court should not decline jurisdiction, that (f) should the court decide that

(i) the agreement … constituted a ‘tenancy’ and (ii) the site constituted a

‘tenement’ … then section 28 of the Act applied and Lecorn (sic) would be entitled

to retain possession pending the determination in the Circuit Court … and I would

accordingly dismiss these proceedings. I therefore decided to hear oral evidence

and determine these two issues.” (emphasis added).

37. It will be seen from the above extract from the judgment of Costello J. that, although he

was prepared to entertain the proceedings in view of the very particular urgency that

arose in that case, he nonetheless made clear that, in the absence of that urgency, the

correct approach to take would usually be to stay the proceedings in the High Court to

allow the claim under Part II of the 1980 Act to be pursued in the Circuit Court. It should

also be noted that, although the matter had started by way of an application for an

interlocutory injunction, Costello J. had directed that the matter should proceed to a full

hearing on oral evidence such that he was in a position to reach a final determination on

the issues in question. That is not the course which has been taken in the present case.

The plaintiff, here, has chosen to pursue an application for an interlocutory injunction and

has not sought to have the hearing of the application treated as the trial of the action.

Nor has the plaintiff sought any order pursuant to O.63A r.6 for an order for the trial of a

preliminary issue or for the trial of a discrete issue.

38. Having heard evidence in the matter, Costello J. proceeded to find that the contract in

issue in that case did not create a tenancy but was nothing more than a licence which had

been validly terminated. He also held that the premises were not a tenement. In those

circumstances he was in a position to conclude that the defendant had no right to a new

tenancy under the 1980 Act and no right to retain possession pending the resolution of

the application then pending before the Circuit Court. As previously mentioned, the

decision of Costello J. was upheld on appeal. In the course of his judgment in the

Supreme Court, Lynch J., at p. 8, confirmed that he agreed with the views expressed by

Costello J. He added:-

“…in doing so I have regard to Articles 34 Section 3(1) of the Constitution, the decision of

the former Supreme Court in … Walpoles (Ireland) Ltd -v- Dixon … and the

decisions of the High Court in R -v- R. [1984] IR 296 and O'R -v- O'R [1985] IR

39. It will be seen from the observations of Lynch J. that, in expressing agreement with the

views of Costello J. in the High Court, he also drew attention to the approach taken by the

High Court in R. v. R. [1984] I.R. 296 and O’R. v. O’R. [1985] I.R. 367. In my view,

having regard to the endorsement by the Supreme Court of the approach taken in those

cases, it is important to consider both judgments. In R. v. R., an issue arose as to

whether the High Court continued to have jurisdiction to hear and determine claims under

the Guardianship of Infants Act, 1964 (“the 1964 Act”) and the Family Law (Maintenance

of Spouses and Children) Act, 1976 (“the 1976 Act”) subsequent to the enactment of the

Courts Act, 1981 (“the 1981 Act”). There were significant jurisdictional changes made by

the 1981 Act insofar as family law proceedings were concerned. Prior to its enactment,

both the 1964 Act and the 1976 Act expressly conferred jurisdiction on the High Court in

relation to proceedings under those Acts. However, the 1981 Act inserted a new

provision in each of the 1964 and 1976 Acts declaring that the jurisdiction of the courts

under those Acts was to be exercised by the Circuit Court or the District Court. The

amendment made by the 1981 Act removed any reference to the High Court in the 1964

and 1976 Acts respectively. The plaintiff instituted proceedings under the 1964 and 1976

Acts in the High Court and claimed that the exclusion of the High Court from the definition

of the “court” in the Acts in question was unconstitutional.

40. In his judgment, Gannon J. drew attention to the provisions of Article 34.3.1 of the

Constitution which provides that the High Court is “invested with full original jurisdiction

in and power to determine all matters and questions whether of law or fact, civil or

criminal”. At p. 308 of the report, Gannon J. came to the conclusion, in light of Article

34.3.1, that the Oireachtas cannot validly create “a new juridical jurisdiction and withhold

it from the High Court; nor can it reduce, restrict or terminate any jurisdiction of the High

Court”. He therefore held that the 1981 Act could not exclude from the High Court

jurisdiction in matters of family law, custody of children or maintenance. Thus, the fact

that the 1981 Act had purported to confer jurisdiction solely on the Circuit and District

Court did not exclude the jurisdiction of the High Court. In accordance with the principles

of interpretation established in the decision of the Supreme Court in East Donegal Co-

Operative v. Attorney General [1970] I.R. 317, Gannon J. held that the 1981 Act had to

be construed as though it had not excluded the jurisdiction of the High Court in relation to

claims under the 1964 and 1976 Acts. Nonetheless, he went on to hold at p. 310 that: -

“it is competent for the High Court to decline to entertain applications for orders

obtainable in such other courts, or to remit to such other courts for hearing such

applications brought in the High Court as are within the jurisdiction of such other

41. Subsequent to the decision of Gannon J. in R. v. R., a High Court practice direction was

issued which required parties to proceedings issued in the High Court under (inter alia)

the 1964 and 1976 Acts to submit, at an early stage in the proceedings, such evidence or

arguments as they saw fit as to whether it was appropriate that the case should be

retained in the High Court or whether the case should be remitted to the Circuit Court or

District Court. The decision of Murphy J. in O’R. v. O’R. addresses the application of the

practice direction in question. The plaintiff, in that case, argued that the High Court could

not decline jurisdiction in favour of the Circuit Court or the District Court (as the case

might be) unless a formal motion to remit the proceedings had been brought pursuant to

the rules of the Superior Courts. This argument was rejected by Murphy J. who took the

view that there was no necessity to bring a formal motion to that effect. Murphy J.

provided very valuable guidance as to the approach to be taken by the court in deciding

whether to retain proceedings in the High Court or to direct that the proceedings should

continue in either the Circuit or District Court. In the particular case before him, he

concluded that it would not be appropriate to retain the case in the High Court. He came

to that view in circumstances where it had not been established that there would be a

denial of justice if the High Court were to decline jurisdiction. In reaching that conclusion,

Murphy J. placed particular emphasis on the fact that the Oireachtas had clearly intended

that proceedings under the 1964 and 1976 Acts should be dealt with in the Circuit and

District Courts. At p. 372 he said: -

“The fact that… the Family Law (Protection of Spouses and Children) Act, 1981 defined

the words ‘the Court’ as used in that Act as meaning ‘the Circuit Court or the

District Court’ and then went on to provide in effect that the form of relief granted

under s. 5, 6, 7 and 9 of the Act of 1976 might be granted by ‘the Court’ with no

reference to any express jurisdiction of the High Court to deal concurrently with

those matters indicated, as Mr. Justice Gannon has already pointed out in R. v. R. …

at p. 304, ‘a clear intention on the part of the Oireachtas’ that such applications

should be made in the first instance to the court of a limited local jurisdiction.

There are many cases in which the Oireachtas has indicated a similar intention. An

obvious example would be the Landlord and Tenant Act, 1931, which conferred

upon ‘the Court’ far reaching and, perhaps by reference to then accepted concepts

of contractual and property law, revolutionary powers enabling ‘the Court’ to ensure

security of tenure to a wide range of tenants of urban property. Section 5 of the

Act defined ‘the Court’ as meaning the Circuit Court and made no express reference

to any jurisdiction in the High Court to exercise similar powers. Again the

Workmens’ Compensation Act, 1934, s. 4, defined the tribunal which was to

exercise and did exercise the important powers conferred by that Act as being ‘the

Circuit Court’. Whilst it might be said that the various Courts Acts have from time

to time evinced an intent on the part of the legislature that claims in contract and

tort for sums below a stipulated figure should be brought in a court of limited

jurisdiction rather than in the High Court, there is no doubt that a distinction could

be made between that type of case on the one hand and cases relating to the

matrimonial legislation, the Landlord and Tenant Acts and the Workman’s

Compensation Code on the other hand, where the legislation itself contemplated

the exercise of the jurisdiction by the Circuit Court only and not by the High Court.”

42. Murphy J. then asked himself the question whether the court should give effect to the

intention of the Oireachtas “as expressed in legislation validly and constitutionally

enacted?”. At p. 372-373, Murphy J. answered that question as follows: -

“I have no hesitation in answering that question in the affirmative. That answer might be

justified in short by saying that it is proper for one organ of the State set up under

the Constitution to respect the actions and wishes of another such organ. More

fully, it must be recognised that in accordance with Article 36 of the Constitution

the Oireachtas is bound to enact legislation regulating in accordance with the law

(among other things) the constitution and organisation of the courts and the

distribution, jurisdiction and business among the courts. The enactment of

legislation involves the consideration of, and the selection from, a variety of

methods of providing for the needs of the persons affected by the legislation. The

legislative process itself as ordained by the Constitution requires that the legislation

should be considered by the elected representatives of the people, and in practice

the Oireachtas has available to it all the resources of the permanent administration

in assessing the nature and extent of the problems to be resolved and the extent of

the resources which could be made available for that purpose. In connection with

the legislation involved in the present application, I would readily assume that the

appropriate research was undertaken to establish how, where, and at what

economic and financial cost, matrimonial and family disputes may best be dealt

with and the nature of the facilities which could and should be made available at

different venues to deal with litigation touching on these matters… It seems to me

that the only circumstances in which the court would be justified in departing from

the procedure envisaged by the legislature would be where the High Court was

satisfied that in the circumstances of a particular case there was a serious danger

that justice would not be done if that court declined to exercise the jurisdiction

vested in it by the Constitution in relation to that particular case”. (emphasis

43. Murphy J. then proceeded to consider whether, in the particular circumstances of the case

before him, there was a serious danger that justice would not be done if the High Court

declined jurisdiction. He examined the evidence in the case and came to the conclusion,

at p. 374, that while the allegations made in the proceedings were serious and while the

plaintiff wife had “entirely understandable” concerns about the behaviour of the

respondent husband, the complaints in question were insufficient to merit the High Court

assuming jurisdiction. At p. 374 he said: -

“Whilst these allegations are serious and the concern of the wife entirely understandable

it is unfortunate to have to recognise that complaints of that nature would not

distinguish the present case from many others. I cannot see any question of fact or

law … which would suggest that the failure of the High Court to accept and exercise

jurisdiction in this case might result in a denial of justice.

In the circumstances it seems to me that the appropriate course is to decline to exercise

the inherent or constitutional jurisdiction of the court to determine the issues in this

case and to leave the parties to pursue their remedies in those Courts on which the

Oireachtas has expressly conferred jurisdiction.”

44. The decision in O’R. v. O’R. predates the decision of the Supreme Court in Tormey v.

Ireland [1985] I.R. 289 (which was discussed by Barrett J. in Cuprum Properties Ltd v.

Murray addressed in more detail below). However, the decision in O’R. v. O’R. is

consistent, in substance, with the approach taken by the Supreme Court in Tormey.

That case was concerned with criminal proceedings rather than civil proceedings. The

plaintiff had been sent forward for trial to the Dublin Circuit Court on a charge under the

Larceny Act, 1916. He brought an action in the High Court challenging the

constitutionality of S. 31 of the 1981 Act which abolished the right previously available

under the Courts Act, 1964 to have a case before the Dublin Circuit Court transferred to

the Central Criminal Court. He argued that the provisions of s. 31 were invalid having

regard to Article 34.3.1 of the Constitution. His proceedings were dismissed by Costello J.

in the High Court and his decision was upheld by the Supreme Court in a judgment

delivered by Henchy J. While the Supreme Court recognised that the full original

jurisdiction of the High Court under Article 34.3.1 could not be abrogated save to the

extent expressly provided for in the Constitution itself, the jurisdiction vested in the

Circuit Court by s. 31 of the 1981 Act was of a local and limited nature and did not give

rise to any prejudice to the plaintiff. It was therefore consistent with the requirements of

Article 34.3.4 which provides for the establishment of courts of local and limited

jurisdiction with a right of appeal. At p.p. 296-297 Henchy J. explained the rationale for

the decision as follows: -

“The Court accepts that Article 34, s. 3, sub-s. 1, read literally and in isolation from the

rest of the Constitution, supports the plaintiff’s claim to be entitled to a trial in the

High Court. But the Court considers that such an approach would not be a correct

mode of interpretation. The ‘full’ original jurisdiction of the High Court … must be

deemed to be full in the sense that all justiciable matters and questions (save those

removed by the Constitution itself from the original jurisdiction of the High Court)

shall be within the original jurisdiction of the High Court in one form or another. If,

in exercise of its powers under Article 34, s. 3, sub-s. 4, Parliament commits certain

matters or questions to the jurisdiction of the District Court or of the Circuit Court,

the functions of hearing and determining those matters and questions may,

expressly or by necessary implication, be given exclusively to those courts. But

that does not mean that those matters and questions are put outside the original

jurisdiction of the High Court. The inter-relation of Article 34, s. 3, sub-s. 1 and

Article 34, s. 3, sub-s. 4 has the effect that, while the District Court or the Circuit

Court may be given sole jurisdiction to hear and determine a particular matter or

question, the full original jurisdiction of the High Court can be invoked so as to

ensure that justice will be done in that matter or question. In this context the

original jurisdiction of the High Court is exercisable in one or other of two ways. If

there has not been a statutory devolution of jurisdiction on a local and limited basis

to a court such as the District Court or the Circuit Court, the High Court will hear

and determine the matter or question, without any qualitative or quantitative

limitation of jurisdiction. On the other hand, if there has been such a devolution on

an exclusive basis, the High Court will not hear and determine the matter in

question, but its full jurisdiction is there to be invoked – in proceedings such as

habeas corpus, certiorari, prohibition, mandamus, quo warranto, injunction or a

declaratory action – so as to ensure that the hearing and determination will be in

accordance with law. Save to the extent required by the terms of the Constitution

itself, no justiciable matter or question may be excluded from the range of the

original jurisdiction of the High Court.

As to indictable offences, the combined effect of the relevant statutory provisions is that

all indictable offences save those which Parliament considered to be the most

serious (notably treason, genocide…murder, attempted murder and piracy), are

triable in the Circuit Court, and only in the Circuit Court. The jurisdiction thus

vested in the Circuit Court is local and limited and there is a provision for an appeal

in all cases in which there is a conviction. In the opinion of the Court, that vesting

of jurisdiction in the Circuit Court is in compliance with the requirements of Article

34, s.3, sub-s. 4 and the fact that it has a consequence that such cases cannot be

tried in the High Court does not amount to a violation of Article 34, s.3, sub-section

1. Apart from the fact that an accused person in such a case may, if convicted,

seek leave to appeal to the Court of Criminal Appeal, he may in appropriate

proceedings invoke the original jurisdiction of the High Court to prevent the trial

being entered on or being conducted in violation of his fundamental rights.

The plaintiff in this case has not suggested that he is in danger of being prejudiced by the

mere fact of having to stand trial in the Circuit Court rather than in the Central

Criminal Court. It is difficult to see how any such prejudice could be advanced,

considering that the law and procedure in both courts are the same, that the judge

presiding in the Circuit Court enjoys no less independence than a judge of the High

Court, and that for a trial in either court the jury is drawn from the same jury

panel”. (emphasis added).

45. It is, of course, important to bear in mind that Tormey was concerned with a criminal trial

rather than a civil proceeding. Nonetheless, it seems to me that the approach taken by

the Supreme Court in that case is, in substance, very similar to the approach taken by

Murphy J. in O’R. v. O’R. In particular, it is clear from the passage highlighted above

from the judgment of Henchy J. that the court addressed its mind to whether the plaintiff,

in that case, would be prejudiced by a trial in the Circuit Court. This is not unlike the

approach taken by Murphy J. which involved a consideration as to whether there was a

serious danger that justice would not be done if the High Court declined jurisdiction.

46. In my view, the approach taken by Murphy J. in O’R v. O’R. is particularly helpful and

instructive. Of the judgments endorsed by the Supreme Court in Kenny Homes it is, by

far, the most closely reasoned in relation to the issue of jurisdiction and it provides

considerable guidance as to the approach to be taken in cases where the Oireachtas has

decided, in the exercise of its legislative function, that a particular court is to have

jurisdiction in relation to certain types of dispute. Although Costello J. at first instance, in

Kenny Homes, did not expressly refer to O’R v. O’R, his decision (and that of the Supreme

Court on appeal) is entirely consistent with the approach suggested by Murphy J. There

were very particular factors which existed in the Kenny Homes case which required, in the

interests of justice, that the High Court should not decline jurisdiction in that case. These

are the factors explained by Lynch J. in his judgment in the Supreme Court in the same

case – namely that the plaintiff was at risk of losing the benefit of the designated status

for the development proposed by it and that the premises (which included a petrol

station) were uninsured. Those factors were sufficient to distinguish that case from what

might be described as the general run of cases which arise as between landlords and

tenants under Part II of the 1980 Act.

47. The issue was again considered by Finlay Geoghegan J. in the course of her judgment in

Crofter Properties Ltd v. Genport Ltd [2007] IEHC 80. That case concerned Sachs Hotel

on Morehampton Road in Donnybrook which had been the subject of a 21-year lease

which had expired in 2001. On the date of expiry of the lease, the defendant tenant

served a notice of intention to claim relief under Part II of the 1980 Act. On 18th

January, 2002, the tenant issued proceedings in the Circuit Court claiming a new tenancy.

Those proceedings were pursued at a very leisurely pace. In the meantime, it remained

in occupation pursuant to s. 28 of the 1980 Act. However, it paid no rent subsequent to

1st May, 2004. In May 2005, the landlord issued proceedings claiming possession of the

property for non-payment of rent. In the following month, the hotel was closed down and

boarded up. In June 2005, the landlord issued a further set of proceedings claiming an

injunction restraining the defendant from carrying out building works in the premises. A

third set of proceedings was commenced in September 2005 by the landlord claiming

possession of the premises on the grounds that there had been multiple breaches of

covenant. All three sets of High Court proceedings came on for hearing before Finlay

Geoghegan J. in 2007. At that hearing, the landlord claimed that the breaches of

covenant and failure to pay rent on the part of the tenant automatically brought to an end

the tenant’s entitlement to remain in occupation pursuant to s. 28. In response, the

tenant argued that it had an absolute right pursuant to s. 28 to remain in occupation

pending the final determination of the application to the Circuit Court (or, in the event of

an appeal, the High Court) and that, accordingly, the High Court had no jurisdiction in the

three sets of High Court proceedings commenced by the landlord to grant an order for

possession notwithstanding the breaches of covenant on its part.

48. Finlay Geoghegan J. considered the decisions of the High Court and Supreme Court in

Kenny Homes and the decision of O’Byrne J. in Walpole. At p. 13 of her judgment, Finlay

Geoghegan J. suggested that the approach taken, at first instance, in both Kenny Homes

and in Walpole, was to the effect that the High Court “would not have proceeded with the

action for possession if there was a claim for a new tenancy before the Circuit Court which

prima facie came within the terms of the relevant Landlord and Tenant Act.”

49. The case was principally concerned with the operation of s. 28 of the 1980 Act (which I

address in more detail below). At this point, it is sufficient to record that Finlay

Geoghegan J. came to the conclusion that, notwithstanding breaches of covenant on the

part of the tenant, no injustice would be done to the landlord in the event that an order

was made in the terms set out in para. 50 below.

50. At p. 25 of her judgment, Finlay Geoghegan J. indicated that the appropriate course to

take was to permit the tenant to remain in occupation pursuant to s. 28 but “only on

terms that it complies precisely with its obligations in relation to the payment of rent,

insurance and rates …”. She therefore made an order restraining the tenant from

continuing in occupation with a stay on the order provided rent rates and insurance were

all paid; the stay to remain in place pending the determination of the tenant’s claim to a

new tenancy. Thus, although Finlay Geoghegan J. entertained the High Court

proceedings, notwithstanding the existence of Circuit Court proceedings in which the

tenant sought a new tenancy, she nonetheless made clear that the High Court would only

interfere with the tenant’s right of occupation under s. 28 in exceptional circumstances

where it is established that there was a risk of serious injustice to the landlord (for

example where the tenant purported to remain in occupation while continuing to act in

breach of the terms of a tenancy). In substance, the approach taken by Finlay

Geoghegan J. in relation to s. 28 chimes with that proposed by Murphy J., in the family

law context, in O’R. v. O’R. (discussed above) in relation to whether the High Court

should assume jurisdiction.

51. The next relevant decision is that of McGovern J. in Esso Ireland Ltd v. Nine One Retail

Ltd [2013] IEHC 514. In that case, an agreement described as an “Operating Agreement

and License” in relation to the defendant’s occupation of a garage premises and service

station expired and the plaintiff (who was the owner of the property in question) brought

proceedings for possession. The plaintiff claimed that the defendant was in unlawful

occupation of the garage premises and brought an application for an interlocutory

injunction. This was refused by Kelly J. (as he then was). However, he directed that the

case should be given an expedited hearing. Such a hearing subsequently took place

before McGovern J. In the course of that hearing the defendant argued that, in

circumstances where it had served a notice to claim relief under the 1980 Act, the Circuit

Court had exclusive jurisdiction under the 1980 Act to deal with the claim. McGovern J.

held against the defendant on that issue on the basis of the decision of the High Court

and Supreme Court in Kenny Homes. At p. 7 of his judgment, he drew attention to the

observation made by Costello J. in Kenny Homes that, because of the particular urgency

in that case, the court should not decline jurisdiction. McGovern J. stated that he was

“In a case such as this, the court has power to decide the issues in dispute without first

remitting the matter to the Circuit Court. The jurisdiction of the Circuit Court only

arises in the event that I conclude the relationship between the parties is one of

landlord and tenant.”

52. While McGovern J. did not elaborate on his reasons for concluding that it was an

appropriate case for the High Court to retain jurisdiction, it is noteworthy that, at a later

point in his judgment, he concluded that there were no facts surrounding the defendant’s

occupation of the premises which would entitle the court to say that it did so under a

tenancy agreement. Thus, on the facts, the case was not unlike the situation which arose

in Walpoles, McGovern J. was in a position, at a full hearing, to conclude that there was

no substance to the contention that the defendant in those proceedings had any right to a

new tenancy under Part II of the 1980 Act.

53. The next case to address a similar issue is the decision of Barrett J. in Cuprum Properties

Ltd v. Murray [2017] IEHC 699. In that case, an interlocutory injunction was sought by

the receivers of the landlord of a public house premises in Townsend Street, Dublin 2.

The defendant tenant argued that the case should not proceed in the High Court in

circumstances where he had served a notice to claim relief under the 1980 Act and he

maintained that his continued occupation of the premises was protected under s. 28. In

response, the plaintiff landlord relied upon a Deed of Renunciation which had been

executed by the tenant at an earlier stage. Barrett J., having examined the decision of

the Supreme Court in Tormey v. Ireland and also the decisions in Walpoles, Kenny

Homes, and Esso Ireland, concluded that the High Court should not take seisin of the

case. Having analysed the decision of Costello J. in Kenny Homes, Barrett J., at p. 17 of

his judgment, distinguished the case before him on the facts in circumstances where

there was no dispute that the public house in question was a tenement within the

meaning of s. 5 of the 1980 Act. Barrett J. took the view that, accordingly, there was no

basis for the proposition that the tenant “who presently enjoys the statutory protection

afforded by s. 28” could be said to be a trespasser. Barrett J. held that both Kenny

Homes and Walpoles were confined in their application to cases where the premises could

not be said to be a tenement within the meaning of s. 5 such that the relevant tenant fell

outside the protection afforded by s. 28 of the 1980 Act (or the equivalent provision in the

1931 Act namely s. 38). In those circumstances, Barrett J. declined jurisdiction.

54. A different view was taken by Haughton J. in Castletown Foundation Ltd v. Magan

[2018] IEHC 653. In particular, Haughton J. could not agree that the principles established in

Kenny Homes were confined to cases where the premises in issue could not be said to

constitute a “tenement”. In the Castletown case, proceedings were commenced in the

High Court by the landlord of a substantial country house in County Kilkenny to recover

arrears of rent. In the proceedings, the landlord also sought a declaration that the

tenancy had been validly terminated and that the tenant was not entitled to seek a new

tenancy under Part II of the 1980 Act. This was on the basis that the letting agreement

had been terminated because of non-payment of rent and/or breach of covenant (which is

one of the cases under s. 17 (1) (a) where a tenant will not be entitled to a new tenancy).

A motion was brought seeking summary judgment against the tenant in respect of the

arrears of rent. In turn, the tenant issued a cross motion seeking an order dismissing the

proceedings for want of jurisdiction. The tenant had served a notice of intention to claim

relief in June 2018. This was followed by the commencement of proceedings in the Circuit

Court seeking a new tenancy.

55. For reasons which are explained in his judgment, Haughton J. granted summary

judgment for the plaintiff in relation to the arrears of rent claim. With regard to the

balance of the claim made by the plaintiff, Haughton J. stayed the proceedings pending

the final determination of the application to the Circuit Court for a new tenancy. In

reaching that conclusion, Haughton J. took a wider view of the ambit of the decision in

Kenny Homes than Barrett J. had taken in Cuprum Properties. In paras. 104-108 of his

judgment, Haughton J. explained why he had taken this approach as follows: -

“104. Clearly the Circuit Court, and that court alone, has original jurisdiction to grant a

new tenancy, or to determine and grant compensation for disturbance or

improvements, where such entitlements are proven to exist …. However, as the

Supreme Court noted by its reliance in Kenny Homes on Article 34.3.1, the High

Court is invested with full original jurisdiction. This entitles the High Court in

appropriate cases to determine issues concerning a claimed entitlement to a new

105. It is difficult to discern as a matter of principle why such matters should be limited

to determining whether a premises is a ‘tenement’ or whether it is held under a

‘contract of tenancy’.

106. [Sections 5, 14 and 15 of the 1980 Act] raise many potential issues which Kenny

Homes suggests can be determined by the High Court in an appropriate case. It is

notable that … Costello P. at full trial determined not only the question of whether

there was a contract of tenancy, but also whether land not covered by buildings

was subsidiary and ancillary to the filling station.

107. While these issues have been described as ‘threshold’ issues, in my view they are

better characterised as issues related to conditions that must be satisfied for a

tenant to have an entitlement to claim a new tenancy. Why then should the High

Court be excluded, even in an urgent case, from determining whether a tenant is

disentitled to a new tenancy by virtue of section 17, or at any rate by virtue of one

of the circumstances provided for in section 17(1) or (2) where no discretion is

vested in the Circuit Court? I cannot discern any difference in principle between

issues raised by section 5 and disentitlement issues raised in section 17. This

question of principle does not appear to have been addressed in Cuprum, and with

the greatest of respect to Barrett J. I do not accept that the decision of Costello P.

in Kenny Homes is as narrow in effect as he suggests in paragraph 26 of his

judgment. Section 17 sets out restrictions on entitlement which could equally be

regarded as circumstances or conditions which prevent a tenant having an

entitlement. The drafters of the legislation and the Oireachtas cannot have intended

that issues arising under section 5 could be determined by the High Court in an

urgent case, but issues arising under section 17 could not.

108. What does emerge clearly from the jurisprudence is that the High Court should

only determine issues of entitlement under the 1980 Act where there is urgency.

This is very important in light of the statutory jurisdiction of the Circuit Court which

this court should respect.” (emphasis added).

56. Notwithstanding that Haughton J. took a different view to Barrett J. in Cuprum, Haughton

J. nonetheless held that the plaintiff landlord had failed to make out a case of sufficient

urgency to justify the maintenance of the balance of the proceedings in the High Court. It

is clear from para. 110 of his judgment that Haughton J. took into account that the

underlying premises would not be at risk while the outcome of the Circuit Court

proceedings was awaited. In the same paragraph he said: -

“By comparison there was real urgency in Kenny Homes (lack of public liability insurance

and the running of ‘designated area’ time limits).”

57. As can be seen from the passage quoted above, Haughton J. accepted that the High Court

could determine whether the right claimed by a tenant to a new tenancy was excluded

under s. 17 of the 1980 Act but he made clear that this would only be appropriate in

cases of “real urgency” as occurred in the Kenny Homes case. It is particularly striking

that, in that case, there was very clear evidence that no rent had been paid for a

considerable period of time. This is relevant to the provisions of s. 17 (1) (a) which sets

out a number of circumstances in which a tenant will not be entitled to a new tenancy

under Part II of the 1980 Act. Among the specific circumstances where the right to a new

tenancy will be lost is that set out in s. 17 (1) (a) (i) which provides that the entitlement

to a new tenancy will not arise where the tenancy has been terminated because of non-

payment of rent. Nonetheless, Haughton J. stayed the High Court proceedings. In para.

113 of his judgment he said: -

“113. While I have already determined that the plaintiff is entitled to pursue its claim in

relation to the validity or otherwise of the purported termination of the Letting

Agreement for non-payment of rent, I am of the view that it would not be an

efficient or cost saving exercise for that issue to be determined in isolation by this

court. Rather it should be determined by the Circuit Court because it will inevitably

arise as an issue that falls to be determined under section 17. In conclusion absent

compelling urgency these issues should be determined in a timely fashion at the

trial of the Landlord and Tenant … proceedings...”.

58. The question of jurisdiction was addressed more recently by Twomey J. in Ferris v.

Markey Pubs Ltd [2019] IEHC 117. In that case, the plaintiffs were receivers of the

landlord of a public house in Suffolk Street. The defendant claimed to be entitled to a

tenancy in the property and had commenced Circuit Court proceedings in which it sought

a new tenancy under Part II of the 1980 Act. However, the case made by the defendant

for a new tenancy was based partly on what Twomey J. described as a “sham lease” and

partly on an assignment by an over holding tenant. It is well settled that such a tenant

has no estate in the land and accordingly there is nothing which is capable of assignment.

This was therefore a clear case where the claim to a new tenancy was unlikely to succeed.

In his judgment, Twomey J. considered the decisions in Kenny Homes, Walpoles, Crofter

Properties and also a decision of McDermott J. in EMO Oil Ltd v. Oil Rig Supplies Ltd

[2017] IEHC 594. For completeness, it should be noted that, in the EMO Oil case, the

Kenny Homes line of authority does not appear to have been brought to the attention of

McDermott J. It is nonetheless noteworthy that, although McDermott J. entertained the

application for an injunction, he was prepared to place a stay on the injunction (on terms

as to payment of rent) pending the determination of a claim brought by the tenant in the

Circuit Court seeking a new tenancy under Part II of the 1980 Act. In Ferris v. Markey

Pubs Ltd, Twomey J. concluded that, in the particular circumstances of the case, it was

appropriate for the High Court to deal with the matter. However, like McDermott J. in Emo

Oil, Twomey J. indicated a willingness to place a stay on the order pending the

determination of the Circuit Court proceedings – provided that the tenant paid the rent

due. He did so notwithstanding his view that there was little or no substance to the claim

for a new tenancy. At paras. 15-16 of his judgment, he said: -

“15. To put the matter another way, if the alleged tenant is making an application for a

renewal of a tenancy under the 1980 Act with little or no hope of success, but in the

hope of gaining rent-free or rent-reduced use of the property (for the year or two

that it takes to have the Circuit Court proceedings and any appeal to the High

Court, determined) at the expense of the holder of security over the property that

funded the purchase of the property, this Court can exercise its full original

jurisdiction under Article 34(1) of the Constitution to decide whether there is, in

reality, any merit to the claim for a new tenancy, notwithstanding the fact that the

general rule is that the Circuit Court has exclusive jurisdiction under the 1980 Act

to determine claims for a new tenancy.

16. If the High Court were to do otherwise, and allow proceedings which have little or

no hope of success to thwart or delay the enforcement of the rights of a holder of

security, this would, in this Court's view, amount to permitting an abuse of process

since it would permit the use of the court's processes for tactical or other motives,

rather than being used for the genuine resolution of bona fide disputes.”

59. In the balance of his judgment, Twomey J. dealt with the application for the interlocutory

injunction. He held that, in light of the matters outlined in para. 58 above, the plaintiff

there had a strong case to make which satisfied the Lingham v. HSE standard and that

the balance of convenience favoured the grant of the injunction. He therefore granted the

injunction sought but, as noted above, he held that, if the defendant was prepared to pay

the ongoing rent for the premises pending the determination of the Circuit Court

proceedings, he would place a stay on the injunction pending the outcome of the Circuit

60. The final judgment which is potentially relevant to the question of jurisdiction is my own

decision in Dublin Port Co. v. Automation Transport Ltd [2019] IEHC 499. In that case,

after a full plenary hearing, I held in favour of the plaintiff’s claim for possession of

property notwithstanding that there was, at that time, an application pending before the

Circuit Court by the defendant tenant seeking a new tenancy under Part II of the 1980

Act. I did so in circumstances where I found that there was a valid and effective

renunciation of rights to a new tenancy by the tenant. I do not believe, however, that my

decision is of any assistance, one way or the other, to the present proceedings. In the

course of the hearing in the Dublin Port Co. case, the case law discussed above was not

brought to my attention and was not the subject of debate between the parties.

Moreover, the proceedings commenced by the plaintiff in that case contained what was,

on the face of it, a significant claim for damages for breach of covenant (albeit that I

ultimately found that there was very little substance to that claim).

The applicable principles derived from the case law

61. It seems to me that a number of principles can be extracted from the authorities

discussed above. These are:-

(a) Although the Circuit Court has been entrusted by the Oireachtas with exclusive

jurisdiction in relation to disputes under Part II of the 1980 Act, the High Court,

having regard to the full original jurisdiction vested in it by Article 34.3.1 of the

Constitution, may, in an appropriate case, assume jurisdiction notwithstanding that

the issues would ordinarily be determined by the Circuit Court;

(b) The fact that the High Court has full original jurisdiction under Article 34.3.1 does

not prevent the High Court from declining jurisdiction. As Gannon J. observed

(albeit in a family law context) it is competent for the High Court to decline

jurisdiction where another court (in this case the Circuit Court) has been invested

with jurisdiction by the Oireachtas. As the decision in O’R. v. O’R. illustrates, it is

not necessary that a formal application should be made to stay proceedings in

favour of the Circuit Court. The court is entitled to address the issue of its own

Court in Kenny Homes) demonstrates, the High Court should respect the choice

made by the Oireachtas in conferring jurisdiction on a court other than the High

Court. This was also emphasised by Haughton J. in the Castletown Foundation

case. In particular, the High Court will only be justified in departing from the

process envisaged by the Oireachtas where the High Court is satisfied that, in the

circumstances of a particular case, there is a serious danger that justice will not be

done if the High Court declined to exercise its jurisdiction under Article 34.3.1;

(d) I believe it is fair to say that it is only in exceptional circumstances that the High

Court will intervene where a claim to a new tenancy is pending before the Circuit

Court. In this context, it is clear from the judgment of Costello J. in Kenny Homes

that, ordinarily, where a right to a new tenancy under the 1980 Act is claimed, the

issues should be determined in the Circuit Court. Furthermore, as set out in para.

72-73 below, Finlay Geoghegan J. in Crofter Properties Ltd v. Genport Ltd (albeit in

the context of s. 28 of the 1980 Act) emphasised that a tenant’s right to remain in

occupation under s. 28 should only be terminated in exceptional circumstances

where there appears a risk of a serious injustice to the landlord if the tenant is

permitted to remain. While that observation was made in the context of s. 28, it

seems to me to be equally applicable with regard to the issue as to whether the

High Court should accept jurisdiction in the first instance. It is noteworthy that the

test suggested by Finlay Geoghegan J. chimes very closely with the test proposed

by Murphy J. in O’R. v. O’R.

(e) Thus, if a plaintiff is not in a position to distinguish its case from the general run of

cases, the High Court is likely to conclude that the proceedings should be permitted

to run their course in the Circuit Court. This is clear from the judgment of Murphy

J. in O’R. v. O’R. (quoted in para. 43 above) where he said that the complaints

made in that case would not “distinguish the present case from many others.” In

those circumstances, Murphy J. could not see how the refusal of the High Court to

accept jurisdiction would result in a denial of justice

(f) While I think it would be wrong to attempt to identify every type of case that would

meet the test suggested by Murphy J. in O’R. v. O’R., there are certain categories

of case where it is well established that the High Court can properly exercise its

jurisdiction under Article 34.3.1. These are:-

(i.) Where (as occurred in Walpoles) it is very clear that the tenant has little or

no hope of success in proceedings under Part II. This is consistent with the

approach taken in Ferris v. Markey Pubs Ltd where, although the court

decided to retain jurisdiction, it then placed a stay on its order (on the

proviso that the ongoing rent should be paid) pending the determination of

the proceedings under Part II of the 1980 Act;

(ii.) Where the plaintiff establishes that there is a genuine urgency which justifies

the maintenance of High Court proceedings. It would appear that, in order to

establish urgency, it is necessary for the plaintiff to establish that there are,

essentially, special circumstances in the case which give rise to such urgency

and which demonstrate that the plaintiff will suffer real prejudice if the

proceedings are allowed to take their course in the Circuit Court. For

example, in Kenny Homes, the premises contained a petrol station and there

was no insurance in place. In addition, the plaintiff was at risk of losing the

benefit of a designated status for the premises.

62. Before attempting to apply those principles to the present case, it is necessary to outline

the statutory context in a little more detail.

The statutory context

63. As noted above, s. 3 (1) of the 1980 Act makes clear that, for the purposes of the Act,

“the Court” means the Circuit Court. This is reinforced by the provisions of s. 8 which

states that the jurisdiction conferred by the Act on the Court is to be exercised by the

judge of the Circuit Court for the time being assigned to the Circuit in which the premises

in question are situated. Part II then sets out a very detailed and comprehensive code in

relation to claims to new tenancies. Section 13 (1) makes clear that Part II applies to a

“tenement” if any one of three conditions are met. No issue arises in this case in relation

to the meaning of “tenement”. The three conditions are: -

(a) Where the tenant can show five years’ business user as provided for in s. 13 (1)

(b) Where the tenant can show 20 years’ continuous occupation as provided for in s. 13

not apply to the tenement, give rise to an entitlement to compensation under Part

IV (provided that the improvements contribute not less than 50% of the letting

value of the tenement).

64. Section 16 confers the right to a new tenancy. It provides as follows:-

“16. —Subject to the provisions of this Act, where this Part applies to a tenement, the

tenant shall be entitled to a new tenancy in the tenement beginning on the

termination of his previous tenancy, and the new tenancy shall be on such terms as

may be agreed upon between the tenant and the person or persons granting or

joining in the grant of the new tenancy or, in default of agreement, as shall be fixed

65. Section 17 contains a significant list of restrictions on the right to a new tenancy. As

noted in para. 69 below, under the 1980 Act, it is for the Circuit Court to determine

whether any of these restrictions apply in an individual case. In particular, s. 17 (1) (a)

identifies six circumstances where a tenant will not be entitled to a new tenancy under

Part II. These include

(a) where the tenancy has been terminated because of non-payment of rent;

(b) where the tenancy has been terminated because the tenant is in breach of

(d) where a renunciation has been executed which meets certain statutory

requirements, including the requirement that the tenant should have received

independent legal advice in relation to the renunciation. However, as discussed

further below, there are two separate provisions in relation to renunciations

(i.) a renunciation by a tenant of a tenement to which s. 13 (1) (a) applies (as

provided for in s. 17 (1) (a) (iiia)); and

(ii.) a renunciation by a tenant of a tenement (comprising a dwelling to which the

2004 Act applies) to which s. 13 (1) (b) applies (as provided for in s. 17 (1)

(e) Where the tenancy has been terminated by notice to quit given by the landlord for

good and sufficient reason;

(f) Where the tenancy has been terminated otherwise than by notice to quit and the

landlord has good and sufficient reasons for refusing to renew the tenancy.

66. Furthermore, under s. 17 (2) a tenant will not be entitled to a new tenancy if any one or

more of six circumstances arise. For present purposes, the relevant circumstance is that

provided for in s. 17 (2) (a) (i) which applies where it appears to the Circuit Court that

(inter alia) the landlord “intends or has agreed to pull down and rebuild or to reconstruct

the buildings or any part of the buildings included in the tenement and has planning

permission for the work”. As noted above, in the present case, planning permission has

been obtained by the plaintiff for a development which involves the demolition of the

premises currently occupied by the defendant.

67. Section 18 deals with the fixing of terms of the new tenancy by the Circuit Court. In turn,

s. 19 deals with cases where the court, on an application for a new tenancy, finds that the

tenant is not entitled to such a tenancy. In such cases, if the notice of intention to claim

relief includes a claim in the alternative for compensation, s. 19 (a) provides that the

court is to hear and determine the claim and fix the amount of any compensation.

68. Section 20 deals with the requirement to serve a notice of intention to claim relief which

may be served either before or after the termination of the tenancy (subject to certain

time limits which are not here relevant).

69. Section 21 deals with the application by the tenant for relief. Section 21 (1) very clearly

envisages that the relevant application will be made to the Circuit Court. Section 21 (1)

provides in particular that, any time after one month from the date of service of the

notice of intention to claim relief, the tenant may apply to the court (i.e. the Circuit Court)

to determine “his right to relief and (as the case may be) to fix the amount of the

compensation or terms of the new tenancy to which he is found to be entitled”. In turn,

s. 21 (3) provides that the application may be made, heard and determined either before

and in anticipation of or after the termination of the tenancy. In my view, s. 21 is very

important in the context of the jurisdiction issue. It shows that the legislative intention is

that it is for the Circuit Court to determine whether the tenant is entitled to a new

tenancy. Put another way, it is for the Circuit Court to determine whether any of the

grounds set out in s. 17 (1) or s. 17 (2) apply such as to defeat the claim to a new

tenancy. Thus, the Act envisages, for example, that it is for the Circuit Court to

determine whether a renunciation exists of the tenant’s rights within the meaning of

either s. 17 (1) (a) (iiia) or s. 17 (1) (a) (iiib). Likewise, it is for the Circuit Court to

determine whether the entitlement to a new tenancy is defeated by the provisions of s.

70. Very importantly, s. 28 of the 1980 Act deals with the situation while an application under

Part II for a new tenancy is pending either before the Circuit Court or by any court on

appeal. The text of s. 28 has already been set out in para. 27 above. Its meaning and

effect has been considered in a number of cases. In Harrisrange Ltd v. Duncan [2003] 4

I.R. 1, McKechnie J. provided very valuable guidance in relation to s. 28. In that case,

the tenant’s tenancy expired by efflux of time. The landlord issued ejectment

proceedings in the Circuit Court. In its defence and counterclaim, the defendant sought a

new tenancy as well as compensation for disturbance and improvements. The Circuit

Court upheld the claim of the landlord and dismissed the counterclaim advanced on behalf

of the tenant. This decision was affirmed by the High Court on appeal. The landlord then

issued summary summons proceedings in the High Court claiming mesne rates for the

period during which the tenant had remained in the property from the date of expiry of

the tenancy on 1st October, 1997 up to 31st December, 2000 (which was a short time

after the matter had been ultimately determined on appeal in the High Court). The

landlord claimed that the tenant should have to pay, by way of mesne rates, the

difference between the rent actually paid during the period up to December 2000 and a

market rate rent for the property during the same period. This claim was made on the

basis that, as a consequence of the findings made by the Circuit Court (upheld by the

High Court on Appeal), the tenant had no right to a new tenancy and that, in those

circumstances, the payment being made by the tenant to the landlord in respect of the

occupation of the premises should not be limited to the rent payable under the expired

tenancy. The landlord’s claim was rejected by McKechnie J. who held that s. 28 provided

a complete defence to the claim. At p.p. 17-18 of the report, McKechnie J. explained the

position as follows: -

“Where an owner has been deprived of his property, he is as a result, entitled to recover

possession and in addition in an action for trespass, all the profits derived out of

the lands by the person wrongfully withholding them. This from the time when the

owner's title accrued. Mesne rates are recoverable from the day on which the

owner's title to re-enter accrues. In ejectments for overholding, this is the day on

which the tenancy was terminated by efflux of time, by notice to quit, or

otherwise… Even in the case of overholding, if the tenant remains on with the

consent of the landlord, he is not liable for mesne rates, as there cannot be a

trespass with consent: see …Deale, Law of Landlord and Tenant where, in the

commentary on s. 77 … (Deasy's Act)…, it is reiterated that such a claim for mesne

profits arise only on trespass, that is where the defendant wrongfully withholds

possession of the plaintiff's lands. Quite evidently, for the period in question the

defendant was not a trespasser and therefore I cannot see how recovery of the sum

sought can be based on a claim for mesne profits. Neither do I think has s. 5 of

Deasy's Act any relevance nor that the plaintiff can mount an action for ‘use and

occupation’. Under s. 46 of Deasy's Act, a landlord is entitled to recover ‘a

reasonable satisfaction’, for a tenant's use and occupation of a demised premises

but only where such tenant is occupying with the agreement of the landlord and in

circumstances where no rent has been specified or determined. Obviously quite

unlike s. 28. In addition, there is no suggestion that an action could be founded,

much less successfully so, on the basis of any alleged breach by the defendant of

his covenant to deliver up quiet enjoyment of the property on the expiration of the

term created by the said lease. Furthermore, it cannot I feel be claimed that the

defendant was a tenant at will or at sufferance or that some sort of estoppel existed

which could operate against him in defending these proceedings. The fundamental

position is that at no time up to the 4th December, 2000, could it be said that the

defendant was a trespasser and accordingly, none of the aforesaid circumstances

could be relied upon by the plaintiff in order to afford to it a cause of action wherein

it could successfully seek the relief now demanded. Consequently, in my opinion, by

virtue of s. 28 … and, in the absence of any other cause of action available to the

plaintiff in which it may recover mesne rates, the defendant was obliged to the

landlord only to the extent of the rent which was then current at the expiry of his

tenancy. ... Since, in my view, no greater sum is due, this part of the plaintiff's

claim cannot succeed.” (emphasis added).

71. At the same time, McKechnie J. made clear that the right conferred by s. 28 does not

create any statutory tenancy. It is simply a right to remain in occupation pending the

ultimate determination of the claim by the tenant to a new tenancy. This was explained

by McKechnie J. at p.p. 12-13 of the report where he said: -

“In my opinion, the right conferred by these sections does not create or establish any new

statutory tenancy. It most certainly does not create any new contractual tenancy as

where, for example, a tenant remains in possession after the expiry of his term and

rent is paid and accepted, then without more the parties by operation of law are

presumed to have agreed to a yearly tenancy on the same terms and conditions as

are applicable: …. The right is simply one to continue in occupation and no more.

Such continuation is of course on the terms as decreed by the various sections but

though such terms and conditions may differ, this does not change the nature of

the right so conferred. Such a right is, I think, personal, that is personal to the pre-

existing tenant and, quite unlike a contractual tenancy, does not create any estate

or interest capable of being transferred or transmitted either inter vivos or on

72. On the other hand, it is also important to bear in mind that, as Finlay Geoghegan J. held

in Crofter Properties Ltd v. Genport Ltd [2007] IEHC 80 at p. 18, the tenant, for as long

as occupation continues under s. 28, remains subject to the terms of the tenancy. In that

case, the tenant was in breach of its obligations under the lease. Finlay Geoghegan J.

held (at p. 16) that the language used in s. 28 was so clear and unambiguous that the

tenant’s right to continue in occupation could not be construed as automatically coming to

an end even where a tenant is found to be in breach of the terms of the tenancy.

However, where the tenant was in breach of its obligations under the relevant contract of

tenancy, the court could intervene in exceptional circumstances. At p.p. 18-19 of her

judgment, she said:-

“Accordingly, I have concluded that whilst s. 28 … prima facie gives a tenant a right to

remain in occupation pending the determination of the application to the Circuit

Court (including on appeal), it also makes a tenant subject to the terms of the

tenancy, that where the relevant tenancy includes a right of re-entry, the right to

remain in occupation may be terminated by the court. The court must retain a

discretion to determine whether or not to so terminate. …. This construction of s.28

confirms the view already formed that it cannot be construed as automatically

bringing to an end a tenant's right of occupation by reason of a breach of the terms

… it appears to me that in the context of the above statutory scheme a right of occupation

under s.28 should only be terminated in exceptional circumstances where there

appears a risk of a serious injustice to the landlord if the tenant is permitted to

remain in occupation whilst continuing to act in breach of the terms of the tenancy.

This approach is also confirmed by the temporary nature of the bare right of

occupation conferred by s. 28.”

73. In that case, Finlay Geoghegan J. came to the conclusion that the tenant should be

permitted to remain in occupation under s. 28 provided the full amount outstanding in

respect of rent and insurance was paid. However, in order to avoid further litigation in

the event of a default by the tenant in observing its continuing obligations under the

expired lease, she indicated, at p. 25 of her judgment, that the form of order to be made

should be an order restraining the tenant from continuing in occupation of the hotel

subject to a stay on that order provided the tenant complied with its obligations under the

lease. In the event that the tenant failed to comply with the conditions specified in the

order made by the court, the stay would automatically expire. For present purposes,

what is notable is that, notwithstanding that, in that case, the tenant had been in default

of its obligations under the lease, Finlay Geoghegan J. was still prepared to allow the s.

28 occupation by the tenant to continue (on terms) pending the determination of the

Circuit Court proceedings in which the tenant sought a new tenancy. It is also significant

that an order was made in those terms notwithstanding the provisions of s. 17 (1) (a) of

the 1980 Act. The breaches of covenant on the part of the tenant in that case might well,

having regard to s. 17 (1) (a), be found by the Circuit Court to defeat the claim to a new

tenancy. Notwithstanding the fairly clear evidence of breaches of covenant on the part of

the tenant, Finlay Geoghegan J. was careful not to prejudge the outcome of the

proceedings in the Circuit Court. It is also noteworthy that, Finlay Geoghegan J.

expressed herself in very similar language to that used by Murphy J. in O’R. v. O’R. At p.

25 of her judgment she said: -

“I have concluded that if Crofter now receives the full amount outstanding for rent and

insurance and continues to be paid rent and recouped insurance is paid on an

ongoing basis and the rates on the property are discharged, then Crofter will not

suffer the type of injustice which would warrant now bringing to an end the right of

Genport to continue in occupation under s. 28 of the Act of 1980”.

74. The decisions in Harrisrange and in Crofter Properties seem to me to establish the

(a) Section 28 gives a tenant a right to remain in occupation pending the ultimate

determination of the claim by the tenant to a new tenancy provided the tenant

continues to observe its obligations under the relevant contract of tenancy;

(b) A breach of covenant on the part of the tenant does not automatically bring to an

end the tenant’s right to remain in occupation under s. 28;

advance of the determination of the tenant’s claim to a new tenancy) in exceptional

circumstances where there appears a risk of serious injustice to the landlord if the

tenant is permitted to remain in occupation;

(d) Even where a tenant is ultimately held not to be entitled to a new tenancy, the

landlord is not entitled to recover from the tenant anything more than the rent

payable under the pre-existing contract of tenancy. There is no right to recover

damages or mesne rates on the basis of any alleged breach by the defendant of a

covenant to deliver up quiet enjoyment of the property on the expiration of the

contract of tenancy.

(e) Even where the tenant fails to obtain relief under Part II, the tenant will not be a

trespasser for the period during which the tenant was in occupation under s. 28.

75. It also seems to me to be important to bear in mind that s. 28 envisages that the right of

occupation will continue up to the determination of any appeal. In circumstances where

the 1980 Act expressly provides that the hearing, at first instance, will take place in the

Circuit Court, the Oireachtas appears to have envisaged that the parties will then have

the right of appeal to the High Court under the provisions of s. 38 of the Courts of Justice

Act, 1936 (“the 1936 Act”). Such an appeal is by way of a full rehearing (albeit on the

basis of the same evidence as was heard in the Circuit Court). The ability to have two

hearings in this way (one at first instance and a rehearing on appeal) provides a

considerable measure of protection to the parties (both landlord and tenant) such that, if

one of them is dissatisfied with the outcome of the hearing in the Circuit Court, they will

each have a right to have the entire matter reheard on appeal in the High Court. This

right of appeal is much more extensive than the right of appeal available to the Court of

Appeal in respect of a decision of the High Court where, having regard to the principles

set out in Hay v. O’Grady [1992] 1 I.R. 210, there is very little scope for the Court of

Appeal to form its own view of the facts.

Has the plaintiff established that it will suffer an injustice if the High Court does not

hear and determine its claim to an interlocutory injunction?

76. Bearing the above principles in mind, I must now consider whether it is appropriate for

the High Court to intervene in this case in circumstances where the defendant’s

application for a new tenancy is still pending in the Circuit Court. As noted previously, the

plaintiff makes the following case: -

(a) In the first place, the plaintiff says that this case is of such urgency that the High

Court should entertain the application for the interlocutory injunction sought;

(b) Secondly, the plaintiff argues that the defendant has no hope of success in the

Circuit Court proceedings in circumstances where the defendant has renounced its

rights under Part II of the 1980 Act;

in the Circuit Court proceedings in circumstances where the plaintiff has planning

permission for a redevelopment of the site which involves the demolition of the

premises. The plaintiff says that, accordingly, it will be entitled under s. 17 (2) (a)

(i) of the 1980 Act to defeat the defendant’s claim to a new tenancy; and

(d) The plaintiff also contends that, in any event, the defendant is estopped from

pursuing a claim to a new tenancy.

77. I now deal, in turn, with each of these aspects of the plaintiff’s case.

78. As noted in para. 27 above, the plaintiff claims that it will be exposed to very considerable

financial loss if the injunction sought is not granted. This is on the basis of the current

rate of construction inflation which at the time of swearing of the affidavits of the parties

in January and February 2020 was running at between 6% and 7%. Whether that rate

will be affected by the economic consequences of the current Covid 19 outbreak remains

to be seen. In his affidavit, Mr. Byers, claims that this could lead to an increase in costs of

€400,000 per month or €5 million per year. Moreover, the plaintiff claims that the

defendant (even on the basis of its own evidence) would not be in a position to meet any

claim for damages. In this context, in the course of the hearing which took place on 13th

February, 2020, counsel for the plaintiff argued that, even if, as a consequence of s. 28 of

the 1980 Act, the defendant cannot be said to be liable as a trespasser (in the event that

the defendant fails in its application under Part II of the 1980 Act), the plaintiff would still

have a claim in damages as against the defendant for breach of contract for failure to

yield up possession of the premises on foot of clauses 2.27 and 4.4 of the Letting

79. In my view, having regard to the decision of McKechnie J. in the Harrisrange case, the

latter argument on the part of the plaintiff is misconceived. It is clear from the judgment

of McKechnie J. in Harrisrange, that s. 28 protects a tenant against a claim for damages

for failure to yield up possession of a tenement on the expiry of the relevant lease or

contract of tenancy. The relevant findings of McKechnie J. to that effect are set out in the

extract from his judgment quoted in para. 70 above (where the relevant observation is

highlighted). In that passage, McKechnie J. made clear that, in his view, there can be no

suggestion that an action for damages could successfully be founded on the basis of any

alleged breach by a tenant of a covenant to deliver up quiet enjoyment of property on the

expiration of the term created by a lease. There is no reason why the same principle

would not apply where a tenancy is terminated by the exercise by the landlord of a break

option. In both cases, the tenancy would, in the absence of the provisions of the 1980

Act come to an end and the tenant would have no entitlement to remain in occupation

thereafter. However, in common with the 1931 Act, which preceded it, the 1980 Act, in s.

28, effectively overrides the terms of the tenancy and permits the tenant to remain in

occupation provided the rent and the other obligations under the pre-existing contract of

tenancy are observed. Furthermore, as the judgment of Finlay Geoghegan J. in the

Crofter Properties case makes clear, the right to remain in occupation is not automatically

terminated even where the tenant has failed to observe the obligations arising under the

pre-existing tenancy. The decisions of both McKechnie J. and Finlay Geoghegan J. must

be seen in the context of the profound changes to the law effected first by the 1931 Act

and continued under s. 28 of the 1980 Act.

80. As noted in para. 41 above, the changes effected by the Landlord & Tenant Acts were

described by Murphy J. in O’R. v. O’R. as “far reaching and, perhaps by reference to then

accepted concepts of contractual and property law, revolutionary powers enabling ‘the

Court’ to ensure security of tenure to a wide range of tenants of urban property”. Section

28 was clearly enacted as part of those changes to the law. The legislative intent,

underlying the section, is clearly to ensure that, pending the determination of an

application for a new tenancy under Part II, a tenant should be in a position to remain in

occupation. As the decision in Harrisrange demonstrates, this right to remain in

occupation exists whether or not the application by the tenant is ultimately successful.

The right of occupation continues right up to the determination of any appeal. A tenant is

not exposed to a claim for damages in the event that a claim to a new tenancy is

81. In the circumstances described in paras. 79 – 80 above, I have not been persuaded by

the plaintiff that the defendant has any liability to the plaintiff in respect of the damages

which the plaintiff says it will sustain in the event that the court does not entertain (and

grant) its application for an injunction. However, the plaintiff also argues (albeit in the

context of its submissions as to the balance of convenience in respect of its application for

an interlocutory injunction) that, if s. 28 has the effect of immunising the defendant from

its damages claim, this makes it all the more important that an interlocutory injunction

should be granted. The plaintiff draws attention in this context to the observations of

Hogan J. (in the context of public procurement) in the Court of Appeal in Word Perfect

Translation Services Ltd v. Minister for Public Expenditure and Reform [2018] IECA 35

where he said at paras. 59-60: -

“59. As the Supreme Court stressed in Okunade v. Minister for Justice … [2003] 3 I.R.

153, the task of the Court in the context of an interlocutory application … is to

assess the facts and apply legal principles designed to ensure the minimum possible

injustice to the parties pending the outcome of the main action. If, however, the

ability of Word Perfect to recover damages is highly restrained this clearly impacts

on the manner in which these factors should be weighed and balanced.

60. In the light of the conclusions I have just reached …, it cannot be said that

damages have been shown to be an adequate remedy. In these circumstances, one

must consider (i) whether an arguable case has been made out and (ii) where the

balance of convenience actually lies.”

82. In my view, those observations must be treated with some caution in the context of the

issue of jurisdiction. They are relevant to the issue of the balance of convenience with

regard to the plaintiff’s application for an interlocutory injunction (in the event that I

conclude that the court should accept jurisdiction). However, at this point, I am

concerned solely with the question whether the High Court should entertain the

application for an interlocutory injunction and whether the plaintiff has demonstrated that

the case is one of sufficient urgency to trigger the High Court’s ability to hear and

determine the case notwithstanding that the Oireachtas intended that disputes of this

nature should be heard and determined in the Circuit Court in the first instance. The

uncompensatable loss to which the plaintiff will be exposed as a consequence of the

operation of s. 28 of the 1980 Act is, in truth, the inevitable consequence of the operation

of the statutory scheme which the Oireachtas has chosen to establish through the

mechanism of Part II of the 1980 Act. That scheme gives a statutory right of occupation

to the tenant subject to the terms of s. 28. That will be so whether or not the landlord

ultimately succeeds in defeating the claim to a new tenancy under, for example, s. 17 (2)

(a) (i) which is one of the subsections relied upon by the plaintiff in the present case –

namely the provision which makes clear that the right to a new tenancy can be defeated

where it appears to the Circuit Court that the landlord intends to pull down the buildings

comprised in the tenement and has planning permission for the works. In every case

where that subsection potentially applies, a landlord could make the argument made by

the plaintiff in these proceedings that it will suffer uncompensatable loss in the event that

immediate possession of the tenement is not delivered up. In each such case, the

landlord would be able to make the case that, the delay in the development works will, in

all likelihood, lead to increased costs in the future. Thus, if the plaintiff is entitled to

invoke High Court jurisdiction in the present case, then every landlord with the benefit of

planning permission for the re-development of lands incorporating a tenement will

likewise be entitled to invoke High Court jurisdiction on the same basis. If that were so,

that is likely to remove from the Circuit Court a substantial number of applications and to

effectively transfer them to the High Court. That would represent a significant derogation

from what the Oireachtas clearly envisaged when enacting the 1980 Act. Such a course

could hardly be said to be consistent with the need to respect the choice of the Oireachtas

to confer jurisdiction on the Circuit Court.

83. Moreover, it is clear from the judgment of Murphy J. in O’R. v. O’R. (discussed in paras.

41 – 46 above) that a party seeking to persuade the High Court to assume jurisdiction in

a case covered by legislation (under which the Circuit Court has been invested with

exclusive jurisdiction) must be able to distinguish its case from the general run of cases.

In other words, a party seeking to persuade the High Court to assume jurisdiction in such

a case, must show the existence of exceptional circumstances which would make it unjust

for the High Court to decline jurisdiction. In Kenny Homes, there were exceptional

circumstances of that kind because, there, in contrast to the present case, the plaintiff

was able to show that it would suffer very particular damage (over and above the damage

which would be suffered by any other landlord with planning permission for

redevelopment of a tenement to which s. 17 (2) (a) (i) applies). In particular, the

plaintiff in that case was in a position to demonstrate that the premises were at risk in

circumstances where there was no insurance in place. Clearly, that was a very important

consideration given that the premises contained a petrol filling station. The plaintiff was

also able to demonstrate that the site was subject to a designation which was about to

expire. It also has to be said that, in that case, the court was in a position to form the

view that there was no contract of tenancy at all.

84. In contrast, in the present case, it seems to me that, to paraphrase Murphy J. in O’R. v.

O’R., the complaints made by the plaintiff here (while entirely understandable) would not

distinguish the present case from any other. As noted above, any landlord with planning

permission for redevelopment of a tenement will be in precisely the same position as the

plaintiff. It is a striking feature of the 1980 Act that, even in cases where the landlord

has planning permission for a development (which involves the demolition of the subject

tenement) the tenant’s right to remain in occupation under s. 28 of the 1980 Act is not

abrogated in any way. Section 28 has the effect that the tenant will continue to be

entitled to remain in occupation of the premises pending the determination of its claim.

In short, there is nothing in the terms of Part II of the 1980 Act to suggest that the right

of a tenant to remain in the premises pending the determination of an application for a

new tenancy is at risk where the landlord appears likely to be able to satisfy the

requirements of s. 17 (2) (a) (i). There is no “carve-out” from the operation of s. 28 in

such circumstances. Thus, the fact that planning permission is held by the plaintiff which

would appear to entitle it in due course to rely on s. 17 (2) (a) (i) to defeat the claim to a

new tenancy does not appear to me to be a circumstance that makes this case

exceptional. On the contrary, the 1980 Act expressly envisages that a tenant will remain

in occupation pending the determination of an application for a new tenancy even where

the landlord has the ability to rely on s. 17 (2) (a) (i).

85. In the circumstances, I am of opinion that the plaintiff has not demonstrated a level of

urgency which distinguishes its case from those of other landlords holding planning

permission for redevelopment of a tenement where there is an application for planning

permission pending in the Circuit Court. Given the choice made by the Oireachtas to

confer exclusive jurisdiction on the Circuit Court in such cases, it seems to me that it

would not be appropriate for the High Court to assume jurisdiction on this ground.

86. The authorities also demonstrate that the High Court may be persuaded to assume

jurisdiction in cases where a plaintiff can establish that the claim made by the tenant in

the Circuit Court has no prospect of success. It seems to me, however, that the court

should only proceed in this way where it is clear that the tenant has no case. In cases of

doubt, it would be unwise to pre-empt the outcome of the determination by the Circuit

Court of the issue. This is particularly important given the statutory entitlement of the

tenant to remain in occupation under s. 28. On the other hand, if it is clear that the claim

of the tenant to a new tenancy has no prospect of success, it would be unjust if a landlord

was prevented from pursuing an immediate remedy in the High Court particularly if the

landlord is likely to suffer uncompensatable damage in the event that the High Court were

to refuse to intervene.

87. In the present case, the plaintiff relies on the Deed of Renunciation. As noted previously,

s. 17 (1) (a) provides that a tenant will not be entitled to a new tenancy under Part II

where, subject to certain conditions, the tenant has executed a written renunciation of a

right to a new tenancy under Part II. The resolution of that issue would ordinarily fall to

be determined in the Circuit Court under s. 21 (1). As noted above, it is for the Circuit

Court to determine the right to relief. In doing so, the Circuit Court will, to the extent

that they are relevant, consider each of the matters outlined in s. 17 (1) and s. 17 (2).

88. As noted in para. 17 above, the defendant, on 26th February 2019, executed a Deed of

Renunciation in respect of its right to a new tenancy under the 1980 Act. The Deed of

Renunciation records that the defendant had received independent legal advice in relation

to the renunciation from Gartlan Furey Solicitors and that the defendant had been advised

that, under the existing legislation, it could, subject to the terms of that legislation, be

entitled to a new tenancy. The operative part of the renunciation then continued in the

“NOW We, the Tenant, and under the provisions of Section 47 of the Civil Law

(Miscellaneous Provisions) Act, 2008 DO HEREBY RENOUNCE any entitlement which

we may have under the provisions of the Landlord and Tenant Acts to a new

tenancy in the Premises on determination of the Tenancy AND in consideration of

the Landlord granting the Tenancy we ALSO HEREBY UNDERTAKE:

(1) To notify any proposed assignee of the Tenant’s interest, of the existence of

this renunciation and to obtain from the proposed assignee a renunciation in

(2) To notify any proposed subtenant of the Tenant, of the existence of this

renunciation and to obtain from the proposed sub-tenant a renunciation in

similar terms as a term of the sub-tenancy”.

89. It should be noted that the renunciation is expressed to be made under the provisions of

s. 47 of the 2008 Act which introduced the current version of s. 17 (1) (a) (iiia). However,

in his submissions, counsel for the plaintiff drew attention to the language used in the

renunciation and in particular to the use of the words “any entitlement… to a new tenancy

…”. He also argued that the clear effect of the renunciation, when read in the context of

s. 13 and s. 17 of the 1980 Act, was to renounce any right to a new tenancy under Part II

of the 1980 Act. He submitted that the renunciation covered both the right to new

tenancy (based on five years’ business user) under s. 13 (1) (a) of the 1980 Act and also

the right to a new tenancy (based on 20 years’ occupation) under s. 13 (1) (b). In

addition, he argued that, in any event, the defendant does not have the benefit of 20

years’ continuous occupation. In particular, he drew attention to the fact that, for the

period from December 2006 to December 2010, Vencam was the tenant. On that basis,

the plaintiff made the case that the defendant could not claim 20 years’ continuous

90. Counsel for the plaintiff also placed particular emphasis on the language used in s. 17 (1)

(a) (iiia). He commenced his submission by drawing attention to the opening words of

that subsection where it is made clear that, if any of the circumstances set out in

subparas. (i) to (v) apply, a tenant “shall not be entitled to a new tenancy under this

Part” (emphasis added). He then drew attention to the provisions of s. 17 (1) (a) (iiia)

which opens with the words: “if section 13 (1) (a) … applies to the tenement”. Counsel

made the very simple point that s. 13 (1) (a) clearly applies to the premises here since

there is no dispute between the parties that the defendant has the necessary five years’

business user. Accordingly, s. 13 (1) (a) applies to the tenement comprised in the

premises in this case. In circumstances where s. 13 (1) (a) applies, counsel submitted

that, once a renunciation has been executed by the tenant (following receipt of

independent legal advice) the tenant will not be entitled to a new tenancy under Part II.

This follows from the opening words of s. 17 (1) (a) quoted above. Counsel submitted

that the clear effect of the opening words of s. 17 (1) (a), was that the defendant, by

executing the Deed of Renunciation, has lost all of its rights to a new tenancy under Part

II including any right it might otherwise have based on 20 years’ continuous occupation.

Accordingly, counsel argued that the defendant had no prospect of success in its

application to the Circuit Court for a new tenancy and he argued that the court should

therefore assume jurisdiction in the same way as the High Court did in Walpoles.

91. Counsel for the plaintiff argued that it was not necessary to go beyond the literal

language of s. 17 (1) (a). However, even if the court took the view that there was some

ambiguity about it, and that it was necessary to look at the purpose of the provision,

counsel submitted that it would be inconsistent with the purpose of s. 17 (1) (a) (iiia) for

the court to hold otherwise. Counsel drew attention, in this context, to the observations

made by Wylie (quoted in para. 92 below) and also to the recommendations made by the

Law Reform Commission (“LRC”).

92. In para. 30.27 of Wylie “Landlord and Tenant Law” (2014), the author makes the

following points in relation to s. 47 of the 2008 Act which introduced the current form of

s. 17 (1) (a) (iiia): -

“A few … points are worth noting. One was that it was suggested that another

consequence of the cross-reference to the business equity in s. 13 (1) (a) of the

1980 Act is that a renunciation by a business tenant affects only his right to claim a

new tenancy under that equity and not his rights under the other equities, i.e. long

occupation (under s. 13 (1) (b)) or improvement (under s. 13 (1) (c)). Again, this

would seem to be a misinterpretation of the provision in s. 47 and contrary to its

objective of facilitating general contracting out. It is important to appreciate the

legislative formula used. Section 47 operates by way of amendment of s. 17 (1)

(a) of the 1980 Act, by adding to the list contained in it of occasions when a tenant

(who might otherwise qualify) is not entitled to a new tenancy. The vital words in

s. 17 (1) (a) are in the reference to entitlement ‘under this Part’. Thus a

renunciation removes entitlement not only under s. 13 (1) (a) but also under the

other provisions of Pt II of the 1980 Act, s. 13 (1) (b) and (c). On the face of it

what is removed is only the right to a new tenancy, but it seems clear that also

removed is the right to claim compensation for disturbance under Pt IV of the 1980

93. As noted above, counsel also referred to the LRC consultation paper on landlord and

tenant law (LRC CP 21-2003) which was published a number of years before the

enactment of s. 47 of the 2008 Act. The consultation paper set out the views of a

working group comprised of Professor Wylie and a number of well known conveyancing

practitioners including Judge John F. Buckley, Colin Keane, James Dwyer S.C. and Gavin

Ralston S.C. Counsel drew attention to the way in which the courts have had regard in

previous cases to reports of the LRC in interpreting statutory provisions which were

enacted following such a report. These include the decision of the Supreme Court in DPP

v. Cagney where Hardiman J. at p.p. 125-126 had regard to the views expressed by the

LRC. A further analogous example (in the landlord and tenant context) is to be found in

the decision of the Supreme Court in Twil Ltd v. Kearney [2001] 4 I. R. 490 where the

Supreme Court had regard to recommendations made by the Landlord and Tenant

Commission in seeking to interpret s. 21 (3) of the 1980 Act which the court found was

94. The plaintiff drew attention to the recommendation made by the working group in the LRC

consultation paper that the arguments in favour of a general contracting out facility for

the business sector were “even stronger as the Irish economy embarks upon the 21st

Century.” In the same report at para. 3.09, it was stated that the LRC remained

convinced that its original recommendation to allow parties to contract out of the

provisions of Part II “was sound”.

95. The argument made by counsel for the plaintiff is logical and coherent and is supported

by Wylie. However, the issue which I must confront is whether the legal position is

sufficiently clear at this stage to allow me to form the view that the defendant has little or

no prospect of success in its application for a new tenancy before the Circuit Court. In

the course of the hearing in February, counsel for the defendant argued that the rights

available to the defendant under s. 13 are threefold. There is the right to a new business

tenancy (based on five years’ business user) under s. 13 (1) (a). Counsel for the

defendant accepted that this was not available to the defendant as a consequence of the

execution of the Deed of Renunciation. However, counsel for the defendant argued that,

concurrently with its right under s. 13 (1) (a) which had been renounced, the defendant

had a separate statutory right under s. 13 (1) (b) to claim a new tenancy based on 20

years’ occupation. Counsel argued that this right had not been renounced by the

defendant. Furthermore, it was argued that the right based on 20 years’ occupation could

not lawfully be renounced under the 1980 Act save in the case of residential tenancies to

which the 2004 Act applies. Counsel made the point that, if s. 13 (1) (b) applies (and

counsel submitted that it very clearly did) the only form of renunciation that will be valid

is in respect of premises to which the 2004 Act applies. That is not a point which is

expressly addressed by Wylie in para. 30.27 (quoted in part in para. 92 above). With

regard to the reliance placed by counsel for the plaintiff on the LRC consultation paper,

counsel for the defendant submitted that the paper was of no assistance in circumstances

where (counsel suggested) the Oireachtas had clearly not followed the recommendation

made by the LRC. Instead, it had plainly confined the ability to renounce the long

occupation equity available under s. 13 (1) (b) to residential tenancies to which the 2004

Act applies. In the circumstances, he submitted that there was no basis on which to look

behind a literal interpretation of the provisions of the Act and, accordingly, no basis to

have regard to the views of the LRC working group.

96. In my view, the argument made by counsel for the defendant is logical and coherent. It

is simply not possible to say, at this stage, that the argument has little or no prospect of

success. In this context, it is very important to have regard to the provisions of s. 85 of

the 1980 Act. Section 85 (1) contains a very strict prohibition against attempts to

contract out of the rights available under the 1980 Act. The text of s. 85 is set out in

para. 19 above. Section 85 (1) makes very clear that any provision of a contract which

purports to vary, modify or restrict in any way the rights available under the 1980 Act will

be void. There are two express exclusions from the application of s. 85 (1). These are

set out in s. 85 (2) namely: -

(a) The renunciation referred to in s. 17 (1) (a) (iiia) inserted by s. 47 of the 2008 Act;

(b) The renunciation referred to in s. 17 (1) (a) (iiib) as inserted by s. 191 of the 2004

97. It is potentially significant that s. 85 (2) breaks the non-application of s. 85 (1) into two

separate and distinct categories, one dealing with the category of renunciation provided

for in s. 47 of the 2008 Act and the other dealing with the renunciation provided for in s.

191 of the 2004 Act. In turn, it is arguable that s. 17 (1) (a) (iiia) of the 1980 Act (as

inserted by s. 47 of the 2008 Act) is concerned solely with the right conferred by s. 13 (1)

(a). Equally, it is arguable that s. 17 (1) (a) (iiib) (as inserted by s. 191 of the 2004 Act)

is concerned solely with the right conferred by s. 13 (1) (b) insofar as it applies to

tenements to which the 2004 Act applies. When read in that way, an argument can

therefore be made that s. 85 (1) continues to apply to the right available under s. 13 (1)

(b) in cases of long occupation of tenements to which the 2004 Act does not apply. This

would include a right available to a business tenant who relies not on s. 13 (1) (a) but on

20 years’ continuous occupation. On the basis of this argument, the use of the words

“under this Part” in s. 17 (1) (a) (which both counsel for the plaintiff and Wylie

emphasised) would not matter because, if the argument is correct, it would mean that the

renunciation of 1999 is void insofar as it purports to renounce any entitlement to a new

tenancy under Part II. The renunciation would only be valid insofar as it relates to the

right available under s. 13 (1) (a). However, it would not be valid insofar as it relates to

the right available under s. 13 (1) (b).

98. I appreciate that, as counsel for the plaintiff urged, the LRC, in its consultation paper,

recommended the removal of any restrictions on the renunciation of rights in respect of a

business tenancy. However, the Oireachtas was not in any way bound by the views

expressed by the LRC. Moreover, the change effected in 2004 (as a consequence of the

amendment made by s. 191 of the 2004 Act) could arguably be construed as a deliberate

intention on the part of the Oireachtas to confine the removal on the restriction on the

right to a new tenancy under s. 13 (1) (b) only to residential tenancies and not to

interfere in any way with business tenancies where the relevant tenant had the necessary

20 years’ continuous occupation. One might well ask why would the Oireachtas take that

course. Why would the Oireachtas decide to remove the restriction insofar as residential

tenancies are concerned and preserve it in relation to non-residential tenancies?

However, that seems to me to be an issue that is best left to a careful consideration

following a full hearing. For instance, it could be argued that the Oireachtas considered

that residential tenancies now had a complete code of protection available under the 2004

Act and no longer required protection under the 1980 Act. On the basis of that argument,

there would be a logical basis for the Oireachtas to differentiate between long occupation

rights in respect of residential tenancies on the one hand and non-residential tenancies on

99. It would be inappropriate for me to attempt to resolve these arguments at this stage. As

noted above, my concern is to establish whether it can be said, at this point, that the

defendant has little or no hope of success in the Circuit Court in maintaining its position

that there is no effective renunciation in place in relation to the new tenancy claimed by it

under s. 13 (1) (b) of the 1980 Act. In view of the fact that logical and coherent

arguments have been made and are capable of being made on both sides, I do not

believe that there is any basis upon which I could properly conclude at this stage that the

defendant’s case in relation to the renunciation is likely to fail in the Circuit Court

proceeding. In those circumstances, I do not believe that the plaintiff has established

that it would be appropriate for the High Court to assume jurisdiction in this case on the

basis that the defendant is clearly prevented by the Deed of Renunciation from pursuing a

claim to a new tenancy (or to compensation in lieu) under s. 13 (1) (b) in the Circuit

The case made by the plaintiff that the defendant does not have 20 years’ continuous

100. I must next consider whether, as the plaintiff contends, a defendant has no prospect of

success in the Circuit Court in circumstances where (as the plaintiff suggests) the

defendant does not have 20 years’ continuous occupation. As noted above, this case is

made in circumstances where, in the period between December 2006 and December,

2010 the property was in the occupation of Vencam and not the defendant.

101. In this context, there is no dispute between the parties that Vencam was the relevant

tenant in the period between 1st December, 2006 and 1st December, 2010. However,

the defendant argues that, while Vencam was the tenant, the defendant nonetheless

remained in occupation during this period. As recorded in para. 8 above, the defendant

refers, in this context, to a number of documents which it contends evidences its

occupation of the premises. These include documents which evidence that the employees

at the premises continued to be employed by the defendant during the period in question.

Furthermore, rates demands (which by law are payable by the occupier) were issued by

the local authority to the defendant rather than to Vencam. In addition, the relevant

Public Music and Singing Licence was held during this period by the defendant rather than

102. In response to this element of the plaintiff’s claim, the defendant makes two arguments: -

(a) Having regard to s. 5 (3) of the 1980 Act, it contends that the occupation by

Vencam is deemed to be occupation by the defendant. This argument proceeds on

the basis that both Vencam and the defendant are subsidiaries of EET. In this

context, it is important to note that, under s. 5 (3) of the 1980 Act, where the

tenant is a subsidiary of a holding company (within the meaning of the Companies

Act, 1963) occupation of the tenement by another company which is also a

subsidiary of the same holding company will be deemed to be occupation by the

(b) Even if s. 5 (3) cannot be relied upon, the defendant was, as a matter of fact, in

occupation of the premises for more than 20 years and the defendant relies on the

material described in paras. 8 and 101 above. In light of that occupation for the

entire of that period and in light of the fact that the defendant was the tenant of

the premises at the time of the termination of the tenancy, the defendant claims

that it satisfied the requirements of s. 13 (1) (b) which requires that the tenement

must, for the relevant 20 year period, be “continuously in the occupation of the

person who was the tenant immediately before that time”. Since the defendant was

the tenant at the time of termination of the tenancy, and since it was, as a matter

of fact, in occupation for the entire period of 20 years, the defendant argued that it

did not matter that it was not the tenant during the period when the tenancy was

held in the name of Vencam.

103. In response to the first of those arguments, counsel for the plaintiff drew attention to the

provisions of s. 155 of the Companies Act, 1963 (which was the relevant statutory

provision in operation at the time Vencam held the tenancy). Counsel submitted that, on

the basis of the annual returns made by the companies, Vencam could not satisfy the

requirements of s. 155 (1) of the 1963 Act. Those returns show that Mr Colum Butler and

Mr Ciaran Butler were registered as the only shareholders in Vencam. Counsel submitted

that EET did not hold any shares in Vencam and accordingly Vencam could not be

regarded as a subsidiary of EET within the meaning of s. 155 (1). Insofar as the

defendant itself is concerned, Mr. Byers (in his affidavit sworn on 6th February, 2020)

drew attention to the fact that EET is only one of two shareholders in the defendant (the

other shareholder being Mr. Colum Butler) and that EET did not hold a majority of the

shares. On that basis it was suggested that the defendant, likewise, did not satisfy the

requirements of s. 155 (1).

104. In order to understand this submission, it is necessary to have regard to the terms of s.

155 (1) which provides that, for the purposes of the 1963 Act, a company will be deemed

to be a subsidiary of another “if, but only if” the latter is a member of it and controls the

composition of its board of directors or holds more than half in nominal value of its equity

share capital, or holds more than half in nominal value of its shares carrying voting rights.

On the basis of the annual returns for both companies, counsel submitted that this

requirement was clearly not satisfied in either case.

105. With regard to the evidence given by Mr. Ciaran Butler that the shares held in his name or

in the name of his brother, Mr. Colum Butler, were held on trust for EET, counsel for the

plaintiff submitted that this could not satisfy the requirements of s. 155. Counsel

described those requirements as “very straightforward requirements” which were “just

not satisfied on the facts”. At this point, it should be noted that in the affidavit sworn by

Ciaran Butler on 11th February, 2020, Mr. Butler accepted that the shares in Vencam

were held by him and his brother. However, he said that EET was the beneficial owner of

the shares in both the defendant and Vencam in the periods between December 2006 and

December 2010. He continued, in para. 6, to say: -

“If the shares or any portion thereof in either company were held in my name or that of

my brother… I can confirm we held those shares for EET. It is for that reason that

the companies are correctly and accurately recorded in the Annual Accounts as

being wholly owned subsidiaries of EET…”.

106. In his submission, counsel for the plaintiff did not address the provisions of s. 155 (3) of

the 1963 Act on which counsel for the defendant relied in his response. In his

submissions, counsel for the defendant highlighted that, under s. 155 (3), any shares

held by the person as a nominee for another are deemed to be held by the latter. Section

155 (3) provides as follows: -

“(3) In determining whether one company is a subsidiary of another—

(a) any shares held … in a fiduciary capacity shall be treated as not held … by it;

(b) subject to paragraphs (c) and (d), any shares held …—

(i) by any person as a nominee for that other (except where that other is concerned

only in a fiduciary capacity); or

(ii) by, or by a nominee for, a subsidiary of that other, not being a subsidiary which is

concerned only in a fiduciary capacity;

shall be treated as held or exercisable by that other”.

107. For present purposes, paras. (c) and (d) are not relevant. However, on the basis of s.

155 (3), there is, at minimum, a good basis for the defendant to make the case that

Vencam and the defendant were both subsidiaries of EET. It is noteworthy that in the

abridged financial statements of Vencam for the period from 7th June, 2006 to 31st July,

2009, there is a note to the effect that Vencam is a wholly owned subsidiary of EET.

108. Accordingly, it would be impossible to say that the defendant’s case under s. 13 (1) (b),

insofar as it is based on 20 years’ occupation, has little or no prospect of success in the

Circuit Court. Having regard to s. 5 (3) of the 1980 Act, there is clearly, at minimum, an

arguable basis for the case made by defendant that the occupation by Vencam during the

relevant period between 2006 and 2010 should be deemed to be occupation by the

109. Equally, even if I am wrong in my conclusion in relation to the effect of s. 5 (3) in the

present case, it seems to me that, on the basis of the evidence before the court, and on

the basis of the language used in s. 13 (1) (b), it would be impossible to say that the

defendant has little or no prospect of persuading the Circuit Court that it has the

necessary 20 years’ occupation. As noted in para. 102 (b) above, the defendant argues

that, on the basis of the evidence summarised in paras. 8 and 101 above, it has been in

occupation of the premises for the last 20 years as a matter of fact. It therefore can

satisfy the statutory requirement set out in s. 13 (1) (b) that there must be 20 years’

continuous occupation. The defendant argues that, having regard to the language used in

s. 13 (1) (b), the claimant claiming 29 years’ continuous occupation is not required to

show that he or she is the tenant throughout that period. It is sufficient, on the basis of

the literal language of s. 13 (1) (b) that the claimant was the tenant immediately before

the expiration of the relevant 20-year period. The defendant highlights that there can be

no dispute but that the defendant was the tenant at that time. Although Wylie, in a

footnote, has expressed some reservation about the interpretation placed of s. 13 (1) (b)

advanced by the defendant in the course of the hearing of the present application, it

seems to me that the interpretation suggested by the defendant is, at minimum, an

arguable one. It is consistent with the literal language of s. 13 (1) (b).

110. Accordingly, I have come to the conclusion that the plaintiff has failed to establish that

the defendant has little or no prospect of success in its claim to a new tenancy in the

Circuit Court on the grounds that it does not have 20 years continuous occupation. It

seems to me that the defendant clearly has an arguable case to make in relation to this

issue. However, there remains, for consideration, the plaintiff’s case based on estoppel.

That is the issue to which I now turn.

111. The plaintiff relies on two species of estoppel namely (a) estoppel by convention and (b)

estoppel by representation. Insofar as the former is concerned, the nature of estoppel by

convention is described as follows in Treitel on the Law of Contract in the following terms

(in a passage expressly approved by Charleton J. in the Supreme Court in Ulster

Investment Bank v. Rock Rohan [2015] 4 IR 37 at p. 53:

“Estoppel by convention may arise where both parties to a transaction ‘act on an assumed

state of facts or law, the assumption being either shared by both or made by one

and acquiesced in by the other’. The parties are then precluded from denying the

truth of that assumption, if it would be unjust or ‘unconscionable’ to allow them (or

one of them) to go back on it. Such an estoppel differs from estoppel by

representation and from promissory estoppel in that it does not depend on any

‘clear and unequivocal’ representation or promise. It can arise where the

assumption was based on a mistake spontaneously made by the party relying on it,

and acquiesced in by the other party, though the common assumption of the

parties, objectively assessed, must itself be ‘unambiguous and unequivocal’”.

112. In support of this aspect of its claim, the plaintiff argued, in its written submissions, that,

having regard to the terms of the 2019 renunciation, there can be “no doubt but that the

convention on which the parties proceeded was that the Defendant would not be entitled

to claim a new tenancy on (sic) the Premises and it would be unconscionable for the

Defendant to deny the validity of the 2019 Renunciation so as to copper fasten the

position by making a claim to a new tenancy”.

113. The defendant’s response to this argument is that the Deed of Renunciation is only valid

to the extent that it complies with s. 85 (2). As discussed above, the defendant argues

that s. 85 (2) does not extend to authorising a renunciation in respect of the long

occupation equity which the defendant argues is available to it under s. 13 (1) (b) of the

1980 Act. The defendant makes the case that the ability to renounce the long occupation

equity under s. 85 (2) is only available in relation to residential tenancies to which the

2004 Act applies. In these circumstances, the defendant says that the Deed of

Renunciation cannot give rise to the estoppel contended for.

114. At this point, my only task is to consider whether the defendant has no arguable case in

response to the estoppel claim. If it has no arguable case in relation to the estoppel

claim, then there would be a proper basis for the court to assume jurisdiction in

accordance with the principles first established in the Walpoles case. In my view, the

defendant clearly has an arguable case to make that the Deed of Renunciation is invalid

insofar as it applies to the long occupation equity under s. 13 (1) (b). If the defendant

succeeds in establishing that the Deed of Renunciation is not effective insofar as that

equity is concerned, I find it very difficult to see how estoppel by convention would arise.

I acknowledge that, at a full hearing, the plaintiff may be in a position to persuade a trial

judge to the contrary. However, at this point, I have not heard any sufficient argument

from the plaintiff to establish that its claim based on estoppel by convention is

unanswerable and that, as a consequence, the defendant has little or no prospect of

success in its application for a new tenancy.

115. With regard to estoppel by representation, the plaintiff drew attention to the well-known

principle established in Doran v. Thompson Ltd [1978] I. R. 223 where Griffin J. explained

“where one party has, by his words or conduct, made to the other a clear and

unambiguous promise or assurance which was intended to affect the legal relations

between them and to be acted on accordingly, then once the other party has acted

on it, altering his position to his detriment, the one who gave the promise or

assurance cannot afterwards be allowed to revert to their previous legal relations as

if no such promise or assurance had been made by him, and may be restrained in

equity from acting inconsistently with such promise or assurance.”

116. As noted in para. 25 above, the defendant makes the case, in relation to estoppel by

representation, that, by executing deeds of renunciation, agreeing to the inclusion of a

break clause in the 2019 Letting Agreement, by not objecting to the planning application

for the redevelopment of the premises and not ever suggesting that it retained statutory

tenancy rights, the defendant unambiguously represented to the plaintiff that it did not

have and would not claim such statutory tenancy rights and would vacate the premises

when the break option was exercised. The plaintiff contends that it acted on this alleged

representation to its detriment (by not litigating the entitlement of the defendant to a

new tenancy at an earlier time) and that, as a consequence of all these matters, the

defendant is estopped from asserting that it is entitled to rights under the 1980 Act.

117. Were it not for the provisions of the 1980 Act, the plaintiff might well have an

unanswerable case to make to this effect. However, I must bear in mind that the 1980

Act effectively overrides the provisions of many of the documents on which the plaintiff

relies. Thus, the fact that the tenancy agreement may be terminated by a notice served

by a landlord under a break option, does not prevent the tenant from seeking relief under

the 1980 Act if the tenant falls within one of the categories set out in s. 13. Even where

there is no break option in a tenancy agreement, there are many cases where a tenant

will have entered into a succession of tenancy agreements over a long period of years,

each one of which will have provided for a termination date. Yet, the 1980 Act allows a

tenant in such circumstances to claim a new tenancy notwithstanding that the relevant

tenancy agreements may have included covenants to deliver up vacant possession of the

property on expiration of each letting agreement. That is why Murphy J., in O’R. v. O’R.,

described the Landlord & Tenant Acts as “revolutionary” by reference to then accepted

concepts of contract law. In the circumstances, it is by no means certain that the

documents on which the plaintiff relies (under which the defendant acknowledged that it

would give up possession of the property) could be said to give rise to the representation

claimed. Those documents must be read in light of the 1980 Act. Again, I do not wish to

suggest that the plaintiff may not succeed in making this case. My only task at this point

is to consider whether the plaintiff has established that the defendant can have no

argument to make in response to this element of the estoppel claim.

118. Insofar as the plaintiff relies on the failure of the defendant to voice any intimation of its

intention to claim a new tenancy, I must bear in mind that under s. 20 of the 1980 Act

(as described in para. 68 above), a notice of intention to claim relief may be served either

before or after the termination of a tenancy. A tenant can therefore wait until after

termination to assert its statutory rights. Again, I do not wish to suggest that the plaintiff

may not succeed in its case based on estoppel by representation. However, it seems to

me that the evidence on which the plaintiff relies falls far short of establishing that, at this

point, the plaintiff’s case is unanswerable. It seems to me that the estoppel claim could

only be properly evaluated following a full hearing with the benefit of oral examination of

witnesses and cross examination. I therefore am unable to conclude, at this stage, that

the estoppel claim now advanced by the plaintiff means that the defendant will have little

or no prospect of success in its application for a new tenancy.

Conclusion in relation to jurisdiction

119. For the reasons outlined above, I have concluded that the plaintiff has not established

that an injustice will be done to it in the event that the court declines to accept

jurisdiction in this case and instead directs that the matter should proceed in the usual

way in the Circuit Court. I have not been persuaded by the plaintiff that this is a

sufficiently urgent case to justify the maintenance of the proceedings in the High Court.

Similarly, I have not been persuaded by the plaintiff that the defendant has little or no

prospect of success in its application under Part II of the 1980 Act. In those

circumstances, it seems to me that the only course that I can properly take is to decline

jurisdiction to entertain the present application and instead to dismiss it. In these

circumstances, having regard to the manner in which the Oireachtas has chosen to confer

jurisdiction on the Circuit Court, it would not be appropriate, in my view, for the High

Court to intervene in this case.

120. It is clear from the decision of Murphy J. in O’R. v. O’R. that it is not necessary that there

should be a formal application brought by the defendant to stay or dismiss the

proceedings. It seems to me that the High Court is entitled to decline jurisdiction even in

the absence of such a motion. That this is so is also reflected in the approach taken in

the judgment of Costello J. (as he then was) in Kenny Homes and, more recently, by

Haughton J. in the Castletown case and by Twomey J. in Ferris v. Markey Pubs. In each

of those cases, the court examined whether it was appropriate for the High Court to

assume jurisdiction.

121. Accordingly, I must dismiss the plaintiff’s application on the basis that it has not been

properly brought in the High Court.

The application for an interlocutory injunction

122. In the circumstances, it is unnecessary to consider the application for an interlocutory

injunction. However, for completeness, I should make clear that, in my view, even if I

am wrong in my conclusion that the High Court should decline jurisdiction in this case, I

believe that the application for an interlocutory injunction should be refused. While I

accept that the plaintiff has an arguable basis for the case made by it, I do not believe

that the plaintiff has established a sufficiently strong case to meet the standard set out in

the decision of the Supreme Court in Lingam v. Health Service Executive [2006] ELR 137.

123. In this context, it seems to me that the observations of Clarke J. (as he then was) in

Okunade v. Minister for Justice [2012] 3 IR 152 at p.p. 182-183 are relevant where he

“76. …as Megarry J. observed in Shepherd Homes Ltd v. Sandham : -

‘In a normal case the court must, inter alia, feel a high degree of assurance that at the

trial it will appear that the injunction was rightly granted; and this is a higher

standard than is required for a prohibitory injunction’

O’Higgins C.J. made similar comments about the difficulty in granting mandatory orders

at an interlocutory stage in Campus Oil v. Minister for Industry (No. 2) [1983] I.R.

77. …it may well be that there is a category of case where the court has to take into

significant account the fact that the grant or refusal of an interlocutory order may

go a long way towards resolving the case itself: see N.W.L. Ltd v. Woods [1979] 1

W.L.R. 1294. Likewise, Allied Irish Banks Plc v. Diamond … [2012] 3 I.R. 549

involved a so called springboard injunction, which involves the court in taking

action to deprive former employees, who are alleged to have acted unlawfully,

(either be taking their employer’s secrets properly so described or by improperly

dealing with the former clients while still in employment or the like) of the fruits of

that alleged unlawfulness. In Allied Irish Banks Plc v. Diamond …, it was held that

a higher standard, similar to that required for the granting of a mandatory

interlocutory injunction, required to be established. The so called springboard

injunction is only for a limited period of time and once granted cannot be undone

even if the defendants win at trial leaving the court with only an award of damages

on the plaintiff’s undertaking as a remedy.

78. Furthermore, injunctions which seek to interfere with continuing disciplinary

proceedings can have the effect of making the management of personnel in

companies virtually impossible. It is, therefore, hardly surprising that, in such

cases, where the result of the interlocutory application will either completely, or

significantly, decide the case, the courts have felt it necessary to impose a higher

standard before an injunction can be granted (normally the Maha Lingam

standard). That variation from the pure Campus Oil test can be seen as

nonetheless still coming within the general principle of attempting to fashion an

order which runs the least risk of injustice for if the grant or refusal of an

interlocutory order will go a long way towards deciding the case than the risk of an

injustice is even greater and the court requires a greater degree of assurance

before intervening.”

124. It seems to me that those observations are relevant for a number of reasons. In the first

place, it is very clear that, in cases where a mandatory injunction is sought at the

interlocutory stage, the Lingam standard will apply. Thus, although the judgment in

Lingam was given on an ex tempore basis by Fennelly J. The approach has been strongly

endorsed by the full court in Okunade.

125. Secondly, it is clear that the same approach should be adopted in cases where the grant

of interlocutory relief will bring about a situation which cannot be undone even if the

defendant wins at trial. That is very similar to the rationale voiced by Megarry J. in

Shepherd Homes Ltd v. Sandham [1971] Ch. 340 to which Clarke J. referred in the course

of his judgment in Okunade. At p. 348-349, Megarry J. explained the concern in the

“As it seems to me, there are important differences between prohibitory and mandatory

injunctions. By granting a prohibitory injunction, the court does no more than

prevent for the future the continuance or repetition of the conduct of which the

plaintiff complains. The injunction does not attempt to deal with what has

happened in past; that is left for the trial, to be dealt with by damages or

otherwise. On the other hand, a mandatory injunction tends at least in part to look

to the past, in that it is often a means of undoing what has already been done, so

far as that is possible. Furthermore, whereas a prohibitory injunction merely

requires abstention from acting, a mandatory injunction requires the taking of

positive steps and may (as in present case) require the dismantling or destruction

of something already erected or constructed. This will result in a consequent waste

of time, money and materials if it is ultimately established that the defendant was

entitled to retain the erection…. another aspect of the point is that if a mandatory

injunction is granted on motion, there will normally be no question of granting a

further mandatory injunction at the trial what is done is done, and the plaintiff has

on motion obtained, once and for all, the demolition or destruction that he seeks.

Where the injunction is prohibitory, however, there will often still be a question at

the trial whether the injunction should be dissolved or continued; except in relation

to transient events, there will usually be no question of the plaintiff having obtained

on motion all that he seeks. …”

126. A very similar rationale is evident in the decision of Clarke J. (as he then was) in Allied

Irish Banks Plc v. Diamond [2012] 3 I.R. 549. In that case, Clarke J. explained why a

higher test applies where a plaintiff seeks mandatory relief at an interlocutory stage. At

“[53] … It is now well settled that in cases involving a mandatory injunction the court will

normally require a higher level of likelihood that the plaintiff has a good case before

granting an interlocutory injunction (see for example Lingam v. Health Service …).

It may well be that the logic behind that departure from the normal rule can be

found in the added risk of injustice that may arise where the court is asked not just

to keep things as they were by means of a prohibitory injunction but to require

someone to actively take a step which may, with the benefit of hindsight after a

trial, turn out not to have been justified. The risk of injustice in the court taking

such a step is obviously higher. 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...”.

127. At p.p. 575-576, Clarke J. explained that a similar rationale applies where the grant of an

interlocutory injunction may finally resolve all issues (with the exception of damages). He

“[61] I have already noted the issue which arises as to whether, given that what is sought

in these proceedings is a springboard injunction, there may be a case to be made

that the court requires a higher level of assurance that the plaintiff will succeed by

reason of the fact that the granting of an interlocutory injunction in favour of AIB

might well amount to a resolution of all of the issues (with the exception of

damages) in this case in AIB's favour. As noted earlier, there is an argument to be

made to the effect that the court should require a higher level of likelihood that the

proceedings will succeed in those circumstances. I have come to the view that

there is an obligation on a plaintiff, seeking to obtain an interlocutory springboard

injunction, to satisfy the court of a strong arguable case for those reasons.”

128. Similar concerns arise in the case. The injunction sought here is mandatory in terms.

Furthermore, the grant of the injunction now will, in effect, result in the making of an

order which cannot be undone subsequently (save insofar as damages are concerned). If

made, the order sought will result in the premises being handed over to the plaintiff for

the purposes of a redevelopment which the plaintiff says is imminently to be commenced.

The making of the order will therefore mean that the defendant will not be in a position to

exercise its rights under s. 28 of the 1980 Act. While the Circuit Court proceedings might

possibly be capable of continuing (but only insofar as compensation is sought for

disturbance is concerned), it is nonetheless the case that the statutory regime

contemplated by the 1980 Act (under which the defendant would be entitled to remain in

occupation of the premises pending the determination of its claim under Part II) would be

rendered nugatory. To paraphrase Megarry J. in Shepherd Homes, the plaintiff, on this

interlocutory motion, would have achieved, once and for all, the substantive relief which it

seeks. For that reason, there is, as Clarke J. explained in Allied Irish Banks v. Diamond,

an obligation on the plaintiff to satisfy the court that it has a strong arguable case. In my

view, for the reasons noted in paras. 86-120 above, the plaintiff undoubtedly has an

arguable case to make. However, equally, for the reasons noted in the same paras., the

defendant has an arguable case. I am unable to say, at this interlocutory stage, that the

plaintiff’s argument is stronger than that advanced by the defendant. At this point in the

proceedings, all I can do is to say that there are arguments available on both sides. In

these circumstances, I do not have what Clarke J. described as “a higher level of

assurance that the plaintiff will succeed”. Accordingly, the plaintiff’s application for an

interlocutory injunction falls at the first hurdle. In my view, the plaintiff has failed to

establish a strong arguable case of the kind contemplated in Lingam v. Health Service

Executive, Okunade, and Allied Irish Banks v. Diamond.

129. For the reasons outlined above, I have come to the conclusion that the plaintiff’s motion

for an interlocutory injunction must be dismissed. I have not heard argument as to what

should happen to the proceedings in the event that the motion were dismissed but,

subject to any further argument that the parties may wish to offer, it would appear to me

that the proceedings should be stayed pending the determination of the defendant’s claim

to a new tenancy but with liberty to re-enter. In this context, while I can, at present, see

little scope for the re-entry of the proceedings in the future, I would not wish, at this

point, to exclude the possibility that there might be a proper basis to do so. By way of

hypothetical example, if the defendant were to unreasonably delay the proceedings in the

Circuit Court that might have the potential to shift the balance of justice in favour of the

re-entry of the proceedings. However, it seems to me that there is no reason why the

claim to a new tenancy cannot proceed to a conclusion with all appropriate speed. I have

no doubt that, if an application were made to the President of the Circuit Court for a

hearing date, it would be given appropriate priority (consistent with the other demands on

the Circuit Court). Likewise, if either party is unhappy with the outcome in the Circuit

Court, there would appear to be a proper basis to have any appeal entered in the

Commercial List to ensure that the appeal would be heard with appropriate expedition.

Result: The High Court declined jurisdiction to hear the case and the plaintiff's motion for an interlocutory injunction was dismissed

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> K.W. Investment Funds ICAV v Lorgan Leisure Ltd [2020] IEHC 132 (13 March 2020) URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC132.html Cite as: [2020] IEHC 132

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