Point Village Development Ltd v Dunnes Store UnLtd Company (Approved) [2025] IEHC 212 (10 April 2025)

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THE HIGH COURT

COMMERCIAL

[2025] IEHC 212

[Record No. 2018/6540P]

BETWEEN

POINT VILLAGE DEVELOPMENT LIMITED

PLAINTIFF

AND

DUNNES STORES UNLIMITED COMPANY

DEFENDANT

JUDGMENT of Mr Justice Mark Sanfey delivered on the 10^th day of April 2025.

Introduction

1. This judgment primarily concerns the application of the plaintiff (or 'PVDL') by notice of motion that the defendant (or 'Dunnes') is in contempt of an Order of the High Court (Barniville J., as he then was) of 20 October 2021 ('the High Court Order') as amended by order of the Court of Appeal (the 'Court of Appeal Order') of 28 January 2022 (collectively, 'the orders'). The notice of motion sets out, inter alia, a lengthy list of orders which it is proposed the court should make, including the imposition of lump sum and daily fines, sequestration of the defendant's assets, and attachment and committal and/or sequestration of the property of four individuals in their capacities as director and/or officer of the defendant, and notably orders directing the defendant to take "such steps as are considered necessary for the purposes of procuring compliance with the Orders."

2. I shall deal later in this judgment with the substance of the orders and the manner in which they are alleged to have been breached by the defendant. For present purposes, it is sufficient to say that the orders required the defendant to submit "Fit Out Plans" and carry out certain "Fit Out Works", as defined in a "Development Agreement" between the parties of 27 February 2008, in relation to an "anchor unit" in the Point Village Centre developed by the plaintiff in the docklands area of Dublin 1.

3. On 31 March 2022, the defendant delivered Fit Out Plans, which the plaintiff submits "were undoubtedly in breach of the orders. They ran to just seven pages, omitted rudimentary details, and entirely failed to address most requirements of the Fit Out Guide" [para.14 written submissions]. Most significantly, these Fit Out Plans did not propose to address the entire area of the unit acquired by the defendant; it was proposed that the defendant would construct a store which "...covers 2.9% of the total Store floor area. Were it placed on a soccer pitch, the retail area would be half the size of the penalty box. Under Dunnes's plans, more than 90% of the Store will forever remain a concrete shell" [para. 15 plaintiff's written submissions].

4. Dunnes proceeded to carry out the works set out in its Fit Out Plan, and issued a motion seeking to vary the orders to extend the time in which it was to execute and complete the Fit Out Works to 27 July 2022 - the day before the hearing of the plaintiff's application herein. The defendant's position - which I shall outline more fully below - was that its submission of the Fit Out Plans and construction of the unit were consistent with its obligations under the Development Agreement and were not in breach of the orders, save that an extension of time would be required to comply with them.

5. It is necessary in this judgment to say something about the background to the dispute in order to set the context for the present applications. However, the interactions of the parties after the conclusion of the Development Agreement in 2008 were set out in detail by Barniville J. in his judgment of 1 October 2021 (see [2021] IEHC 628). The Court of Appeal, in its judgment on the appeal from the order of Barniville J., pointed out that the High Court had set out "all the relevant facts which are not in dispute", and stated that it would "gratefully adopt [the factual background and relevant legal principles] in their entirety as they appear in the judgment of the High Court" (see: [2022] IECA 39, para. 2). To the fullest extent possible, I propose to take a similar approach, and likewise adopt the summary of factual matters in the judgment of Barniville J. up to the date of that judgment.

6. However, as the question of whether the defendant is in contempt of the order of Barniville J. will require an examination of what occurred between the date of that order and commencement of the hearing of the present application on 28 July 2022, it will be necessary to examine the steps taken by both parties, and by the defendant in particular, during that period.

Background

7. In order to understand the present application, it is necessary to provide context by summarising, as briefly as possible, the events leading to the judgment and order of Barniville J.

8. On 27 February 2008, a Development Agreement ('the Development Agreement') was made between PVDL, Dunnes and Henry A. Crosbie ('Mr. Crosbie' or 'the landlord'). This agreement was amended by terms of settlement ('the settlement agreement') on 7 July 2010 and a supplemental deed of settlement ('the supplemental settlement agreement') on 1 November 2010. It should be noted that, while the Development Agreement refers prominently on its front page to "Anchor Site at Point Village North Wall Quay Dublin 1", it does not however contain a definition of "anchor" or "anchor site". The term "Store" is defined as "...that part of the Centre to comprise a retail anchor store and service yard together with the Plant Area, ancillary works, services and facilities to be constructed on the Store Site as shown on or described in the Store Plans in accordance with this Agreement and to include the following target Gross Internal Areas at the levels specified...". This definition is followed by a table describing the anticipated use of each of the various levels of the Store, with a "Target Area" attributed to each use. For instance, the figures indicate that "Retail" will be the appropriate use at level -2 and level 0, with "Retail/Office" being the appropriate use at level +1. The areas attributed to these uses are 3,380sqm, 2,562sqm and 2,440sqm respectively.

9. The Store is occupied by Dunnes pursuant to a long lease dated 28 November 2008 between Dunnes and the landlord. By a deed of appointment of 17 April 2013, Paul McCann and Stephen Tennant were appointed as receivers ('the receivers') by National Asset Loan Management Limited ('NALM') of the assets and undertaking of PVDL; the receivers were appointed to the landlord's freehold interest in the development, the Point Square Shopping Centre ('the Centre').

10. Almost from the outset there have been dispute and litigation between PVDL and Dunnes in relation to the extent and effect of Dunnes' obligations under the Development Agreement. A helpful chronology of this litigation is set out at tab 5 to the grounding affidavit of Stephen Tennant sworn on 16 May 2022 in the present application, and Barniville J. sets out at paras. 44 to 70 of his judgment the details of proceedings initiated by PVDL in 2011 and 2016, with particular reference to the judgments in those cases of Laffoy J. and Costello J. respectively.

11. Pursuant to the Development Agreement, PVDL agreed to develop the centre. Its position, as summarised by Mr. Tennant at para. 11 of his affidavit, was that Dunnes agreed and was obliged to fit out and open the Store once certain pre-conditions were met, and that

(a) Dunnes was obliged to start fitting out the Store by 30 March 2016 (clause 11.4 of the Development Agreement, as amended by clause 14 of the settlement agreement);

(b) Dunnes was obliged to prepare plans for the fit out of the Store, in accordance with the contractual specifications, and submit them to PVDL (clause 11.1 of the Development Agreement);

(c) Dunnes was required to use its best endeavours to obtain all necessary consents for the Fit Out Works, including a fire safety certificate (clause 11.2 of the Development Agreement);

(d) Dunnes was obliged to procure that the Fit Out Works were designed, carried out and completed in accordance with clause 11.4 of the Development Agreement; and

(e) Dunnes was obliged to complete the Fit Out Works by 28 September 2016 (i.e., within 26 weeks, pursuant to clause 11.5 of the Development Agreement). The works were required to comply with the detailed standards set out in the contract and the Fit Out Guide (clause 11 and schedule 5 of the Development Agreement).

12. Dunnes did not commence the Fit Out Works in accordance with what PVDL maintained was its obligation as set out above. Accordingly, the receivers commenced the present proceedings in 2018, seeking specific performance requiring Dunnes to comply with its obligations under clause 11. Dunnes argued inter alia that it was not obliged under clause 11 to take any steps to fit out the Store unless and until it had formed the subjective intention to open and trade from the Store.

Relevant Provisions of the Development Agreement

13. The provisions of the Development Agreement identified by Barniville J. as relevant to the dispute before him set out at paras. 20 to 43 of his judgment are of equal relevance to the present dispute, and I commend the summary at these paragraphs to the reader. However, given that the plaintiff in the present application alleges contempt by the defendant and its directors of the orders which seek to enforce compliance with clause 11 of the agreement, it is appropriate to set out briefly the relevant terms of that clause, together with certain other terms of the agreement.

14. Clause 11 of the agreement deals with "Fit Out Works", and provides as follows:

"11.1 Dunnes shall prior to commencement of the Fit Out Works at its own expense prepare and submit to the Developer the Fit Out Plans which shall, in all material respects, be in accordance with the Fit Out Guide. It is acknowledged that the Fit Out Plans may be varied by Dunnes provided that any such variation is, in all material respects, in accordance with the Fit Out Guide. Dunnes hereby confirms that the Fit Out Works shall be carried out to a standard of quality equivalent to the fit out of Dunnes store [sic] at Henry Street, Dublin.

...11.2.1 Dunnes shall at its own expense use its reasonable endeavours to obtain the Fit Out Consents including a fire safety certificate for the Fit Out Works (if same is required) provided however that this obligation shall not apply to the extent that the Revised Fire Safety Certificate to be obtained by the Developer pursuant to Clause 3 extends to the Fit-Out Works; ...

11.4 From the Access Date but subject to obtaining a fire safety certificate as set out in Clause 11.2 (if same is required), Dunnes shall procure that the Fit Out Works are designed carried out and completed:

11.4.1 in a good and workmanlike manner and in accordance with good building practice;

11.4.2 with good, new and suitable materials;

11.4.3 in substantial compliance with the Fit Out Consents, the Fire Safety Certificate, the Revised Fire Safety Certificate (if issued) and the Planning Acts;

11.4.4 in substantial compliance with all statutes statutory orders and regulations made under or deriving validity from them and any requirements and codes of practice of local authorities and competent authorities affecting the Fit Out Works;

11.4.5 in accordance with the Fit Out Guide and to the standard of quality referred to in clause 11.1;

11.4.6 with reasonable skill, care and diligence;

11.4.7 in accordance with the requirements of the Construction Regulations;

and

11.4.8 in compliance with this Agreement.

11.5 Subject to obtaining a fire safety certificate if same is required in respect of the Fit Out Works, Dunnes shall with effect from the Access Date diligently procure the execution and completion of the Fit Out Works within the Fit Out Period..."

[Bold type added for clarity].

15. In clause 1 of the Development Agreement - the definitions section - there are a number of definitions relevant to the proposed fit out. They are as follows:

"1.34 "Fit out consents", all permissions, consents, approvals, licences, certificates and permits in legally effectual form as are necessary lawfully to commence, carry out, maintain and complete Fit Out Works;

1.35 "Fit Out guide", the document entitled "Fit Out Guide - Point Village District Centre", a copy of which is contained in Schedule 5;

1.36 "Fit Out period", 26 weeks from the Access Date subject however to Clause 11.5;

1.37 "Fit Out Plans", the plans and specifications for Dunnes Works to be submitted to [sic] by Dunnes to the Developer in accordance with the provisions of this Agreement;

1.38 "Fit Out Works", such fitting out or other works as Dunnes may require to carry out in connection with the intended use and enjoyment of the Store;..."

[Bold type added for clarity].

16. At para. 32 of his judgment, Barniville J. addressed the term "Access Date", which he described as "critical". He pointed out that, in her judgment in the 2016 proceedings, Costello J. had held that the "Access Date" was 30 March 2016, being 30 days from the receipt by Dunnes of the certificate referred to in clause 11(c) of the settlement agreement on 29 February 2016. The Court of Appeal had dismissed Dunnes' appeal from the decision of Costello J., and the Supreme Court refused to grant leave to further appeal. The fit out period was to be "26 weeks from the Access Date" (clause 1.36). The works were therefore to be completed by 28 September 2016: see para. 33 of the judgment of Barniville J.

The High Court Judgment (Barniville J.)

17. Notwithstanding the complex background, Barniville J. expressed the view that the resolution of the issue of whether Dunnes was "in breach of certain provisions of the contractual arrangements agreed between PVDL, Mr. Crosbie and Dunnes and subsequently amended by the parties...turns on quite a net issue of contractual interpretation affecting a relatively small number of provisions in the various agreements made by the parties" [para. 2]. The court described the position of Dunnes in the following terms:

"141...Dunnes maintains that since clause 1.38 defines "Fit Out Works" as meaning such works "as Dunnes may require to carry out in connection with the intended use and enjoyment of the Store", it is entirely within the discretion of Dunnes as to whether it requires any works at all, that it is a matter for Dunnes to form the intention to use and enjoy the store and that if it does not form intention [sic] it does not have to carry out any "Fit Out Works" as it does not require them or take any of the other steps referred to in clause 11.1."

18. Having closely examined the principles of contractual interpretation which it would be appropriate for the court to apply, Barniville J. addressed the foregoing interpretation by Dunnes as follows:

"142. I do not accept that that is an interpretation which is open to the court on the plain meaning of the words used in clause 11.1 and, with respect to the defined term, in clause 1.38. Clause 11.1 on its terms imposes an obligation on Dunnes. To interpret the clause in the manner suggested by Dunnes would be to completely undermine and remove the obligation altogether by reference to Dunnes' subjective intention as to whether it wishes to use and enjoy the store. I do not accept that that construction is open to the court reading clause 11.1 with the defined term in clause 1.38 (as well as with the other relevant defined terms). It is not consistent with the use of the word "shall" in several places in clause 11.1 itself. In my view, the construction offered by the plaintiff is consistent with the words used by the parties. It allows for a discretion to Dunnes not as to whether to carry out the relevant works but as to the precise detail of those works, subject to the requirement that they be in accordance with the "Fit Out Guide" and of an equivalent quality standard to the Henry Street store. It is also consistent with the acknowledgement in clause 11.1 that the "Fit Out Plans" may be varied by Dunnes provided that any variation is in accordance with the "Fit Out Guide". Construing the provisions of clause 11.1 in the manner suggested by the plaintiff does, in my view, accommodate the type of discretion for Dunnes which is consistent with the provisions of clause 11.1 as a whole, while at the same time giving effect to the words used in clause 1.38."

19. The court, in interpreting the agreement, took into account the context in which the agreement had been concluded:

"150. I am also required to consider the context in order to determine or test whether the interpretation which appears to me to be most obvious by reference to the words used is correct or not. In my view, the context strongly supports the construction advanced by the plaintiff. I have referred earlier in this analysis to how the Development Agreement was structured. The plaintiff agreed to and did carry out the building works to construct the anchor store as well as the works to construct the Centre itself. Dunnes agreed to pay for the works for the construction of the store and a mechanism was initially agreed and then varied for the payment of the monies on a staged basis by reference to compliance with certain criteria. The parties agreed a detailed schedule for the works which the plaintiff agreed to carry out for the construction and completion of the anchor store under clause 4. The plaintiff was required to do so by reference to "Store Plans" listed in schedule 2 to the Development Agreement as well [as] by reference to the "Store specification" set out in schedule 1 (see, for example, clause 4 and the definitions contained in clauses 1.5 ("Building Works"), 1.68 ("Store Plans"), 1.70 ("Store Specification") and 1.71 ("Store Works")). The "Store Specification" contained in clause 1 was entitled "Dunnes Stores Anchor Tenant Specification" and contained the particular requirements of Dunnes Stores in respect of the design and construction of the anchor Store. I agree with the plaintiff that it is inconceivable that the parties would have gone to the trouble to agree such a specification were it the case that they were also agreeing that Dunnes would have the discretion as to whether to carry out any works whatsoever in fitting out the store and that it could simply decide not to do so."

20. In addressing the commercial rationale behind the agreement, the court stated as follows:

"152. While Dunnes contested the ability of Mr. Tennant to give evidence of the commercial rationale behind the Development Agreement, the court can readily assess and determine that rationale from the Development Agreement itself (and from the subsequent agreements which amended and varied it) and from the judgments given by Laffoy J. in the 2011 proceedings and by Costello J. in the 2016 proceedings. It is beyond argument that it would be critical for the plaintiff, as the developer, to have an anchor tenant in terms of attracting other tenants to the Centre. That objective would be completely and utterly undermined if the anchor tenant had the absolute discretion to decide not to use the store and, therefore, not to carry out any works in fitting out the Store so that all that would be left would be the shell of the store. I acknowledge, of course, that Dunnes is the owner of the store on foot of the Long Lease but nonetheless it is subject to extensive contractual obligations in the Development Agreement, including the obligations to fit out the store and to take the other steps referred to in clause 11. A construction of those obligations in the manner advanced by Dunnes would fundamentally undermine the commercial interests and objectives of the plaintiff/developer. If that were the intention of the parties, then one would have expected it to be clearly spelled out in the Development Agreement or in one of the subsequent agreements between the parties, rather than based on, what in my view is, an unnatural reading of the term "Fit Out Works" in clause 1.38 in isolation from the provisions of clause 11 which impose the contractual obligations on Dunnes."

21. Barniville J. expressed his "principal conclusion" as follows:

"180. In summary, I have concluded that the plaintiff must succeed on the issue of construction raised in these proceedings. I am satisfied that the proper construction of the relevant provisions of clause 11 of the Development Agreement when read with the definitions contained in clause 1, including the definition of "Fit Out Works" in clause 1.38 is that while Dunnes has an element of discretion or flexibility as to the detail of the fitting out works which it must carry out under clause 11 of the Development, subject to the constraints in respect of such works set out in clause 11.1 and schedule 5 of the Development Agreement. I have concluded that the construction of the relevant provisions, including clause 1.38, put forward by Dunnes is clearly wrong. I reject the case advanced by Dunnes that on the proper construction of clause 1.38 of the Development Agreement, Dunnes has a discretion as to whether it requires any works to be carried out in the fit out of the anchor store at Point Village Centre and that it is open to it to decide that it does not wish to "use and enjoy" the anchor store at the present time and, therefore, decide not to require any such works to be carried out. I have concluded that that construction is clearly wrong based on the well-established principles of contractual interpretation having regard to the plain meaning of the words used in the relevant contractual provisions, the relevant context and logic, commercial or otherwise, as well as commercial common sense. The construction put forward by Dunnes must fail by reference to all of these criteria. The idea that two commercial entities, such as PVDL and Dunnes, would reach an agreement on the basis contended for by Dunnes is beyond belief and utterly implausible. I am completely satisfied that they did not."

The Order of the High Court

22. It is important, in the context of the current application in which the plaintiff contends that the defendant is in breach of the terms of the Order of the High Court, to note its specific terms. The substantive part of the Order of the High Court, made on 20 October 2021, was expressed as follows:

"The Court hereby grants judgment against the Defendant for the reasons given in the judgment of Mr Justice Barniville delivered herein on the 1^st day of October 2021; in consequence of which the Court hereby makes the following Orders:

1. An Order for specific performance by the Defendant of its obligations under Clause 11 of the Development Agreement dated 27 February 2008 (the "Development Agreement"), as amended by the Terms of Settlement dated 7 July 2010 and the Supplemental Terms of Settlement dated 1 November 2010, and in particular:

(a) An Order requiring the Defendant to, at its own expense, prepare and submit to the Plaintiff the Fit Out Plans (as defined in the Development Agreement) which shall, in all material respects, be in accordance with the Fit Out Guide (as defined in the Development Agreement), in accordance with Clause 11.1 of the Development Agreement.

(b) An order requiring the Defendant to, at its own expense, use its reasonable endeavours to obtain the Fit Out Consents (as defined in the Development Agreement), in accordance with Clause 11.2 of the Development Agreement.

(c) An order requiring the Defendant to procure that the Fit Out Works (as defined in the Development Agreement) are designed, carried out, and completed, in accordance with Clause 11.4 of the Development Agreement, subject to obtaining a fire safety certificate as set out in Clause 11.2 (if same is required).

(d) An order requiring the Defendant to procure the execution and completion of the Fit Out Works of the Anchor Unit (as defined in the Development Agreement), in accordance with Clause 11.5 of the Development Agreement within 26 weeks of the date of this Order, subject to obtaining a fire safety certificate as set out in clause 11.2 (if same is required)."

23. The plaintiff was awarded its costs of the proceedings, with a stay in the event of an appeal until the first directions hearing in the Court of Appeal.

The Court of Appeal Decision and Order

24. The appeal came before the Court of Appeal on 28 January 2022. The court dealt with the matter on an ex tempore basis: see [2022] IECA 39. The court noted the emphasis by Dunnes on clause 1.38 of the Development Agreement, and in particular the phrase "may require to carry out", which Dunnes submitted was "purely permissive and discretionary...Dunnes make no secret of the fact that, at present at any rate, it has no desire or intention to operate a retail store in the Point Village as it says it is commercially non-viable at this time" [para. 3 of judgment].

25. The court (Noonan J.) noted the "significant reliance" placed by Dunnes on the fact that "the 250 year long lease entered into by it does not contain a "keep open" clause in respect of the store and this is inconsistent with an obligation to proceed with fitting out, at very substantial cost, a store which could open one day and be closed the next without any breach of the lease or the agreement" [para. 4]. Noonan J. noted that the High Court "did not separately analyse the argument but nonetheless, having referred to it expressly, clearly considered it in reaching [the court's] overall conclusion which I believe to be entirely correct" [para. 12]. The court found in any event that the absence of a "keep open" clause was not inconsistent with the mandatory operation of clause 1.38. Noonan J. concluded as follows:

"17. It seems to me, as the respondent submits, that the discretion conferred by Clause 1.38 relates to the nature and type of fit out works that Dunnes may wish to undertake which will of course depend [on] the particular configuration of the store it decides to adopt and the type of business it elects to transact there. It does not, however, confer a discretion to whether any works at all may be carried out."

26. Noonan J. indicated that he was "in complete agreement with the views of the trial judge and I am satisfied that no error in the approach of the High Court has been demonstrated before this court" [para. 18]. The appeal was dismissed; para. 1(d) of the High Court Order was however amended to extend time for completion of the works in the following terms:

"(d) An Order requiring the Defendant to procure the execution and completion of the Fit Out Works of the Anchor Unit (as defined in the Development Agreement), in accordance with Clause 11.5 of the Development Agreement within 26 weeks of 10 December 2021, subject to obtaining a fire safety certificate as set out in Clause 11.2 (if same is required)."

27. The amended order meant that there had to be compliance with Order 1(d) by 10 June 2022.

Events after the Court of Appeal Judgment

28. The evidence of Mr. Tennant in his grounding affidavit suggests that the plaintiff wrote on nine separate occasions between 7 December 2021 and 28 March 2022 to the defendants seeking updates on the defendant's compliance with the orders. This elicited two letters in response, on 9 December 2021 and 21 January 2022. On 28 March 2022, the plaintiff's solicitors delivered to the defendant copies of the orders with penal endorsement referring to the defendant and its officers.

29. On 31 March 2022, the defendant submitted a copy of its Fit Out Plans to the receivers. In his affidavit at para. 28, Mr. Tennant characterises these plans as "grossly inadequate and in clear breach [of] the terms of the Development Agreement." He goes on to aver that the plans

(i) have not been prepared in accordance with the terms of the fit out guide;

(ii) anticipate the fit out of a "convenience Store" rather than an "anchor retail Store" that the plaintiff contends the defendant is obliged to open; and

(iii) do not provide for a fit out to a standard equivalent to Dunnes Stores, Henry Street.

30. At paras. 7 to 15 of his second affidavit sworn on 20 June 2022, Mr. Tennant set out developments since his previous affidavit of 16 May 2022. On 2 June 2022, Dunnes contacted the centre's manager to arrange access to commence the "Proposed Fit Out Works". PVDL agreed to allow Dunnes to access the Store to commence these works, which began on 16 June 2022.

The Plaintiff's Position

31. The relief sought by the plaintiff at para. 1 of the notice of motion is expressed as follows:

"1. A declaration that the Defendant, Dunnes Stores Unlimited Company, is in contempt of court arising from its failure to comply with the Order of the High Court dated 20 October 2021 (the "High Court Order") as amended by Order of the Court of Appeal dated 28 January 2022 (the "Court of Appeal Order", together "the Orders") in the manner described in the Schedule hereto."

32. The schedule to the notice of motion sets out particulars of the alleged breaches of orders 1(a) to (d) of the Orders of the High Court as amended by the Court of Appeal.

33. The reliefs sought in the remainder of the notice of motion relate to the steps which the plaintiff proposes be taken by the court to address a finding of contempt on the part of Dunnes. The central issue therefore is whether Dunnes is in contempt of court due to a breach of the orders.

34. Extensive written submissions were furnished on behalf of both the plaintiff and defendant, and these were supplemented by submissions to the court from James Doherty SC and Shane Murphy SC respectively at the hearing.

35. The plaintiff focusses on the fact that, as it puts it, "the Dunnes Fit Out Plans did not propose to fit out the "anchor unit" as ordered. Instead [Dunnes] proposed to fit out a tiny convenience shop in a small part of the Store" [para. 15 written submissions]. The plaintiff characterises this as "breathtakingly cynical. The position adopted was a variation of the very argument the High Court and Court of Appeal had already rejected. In 11 years of litigation about Clause 11, Dunnes had never once articulated the understanding it now advances. On the contrary, up until January 2022 it implicitly acknowledged it was required to fit out the entire Store" [para. 16 written submissions].

36. PVDL argues that Dunnes' position is clearly contrary to the orders and the Development Agreement; that it does not propose to fit out the "Anchor Unit" as required by Order 1(d), or to fit out the "Store" as defined in the Development Agreement. It is submitted that the proposed works are not "Fit Out Works" within the meaning of the orders.

37. Further, as regards the progress of the works, Mr. Tennant in his second affidavit at paras. 41 to 57 makes the following points:

(1) There is "no conceivable justification" for Dunnes having taken 23 weeks to prepare the Fit Out Plans, which consist of a seven page document;

(2) after delivery of the Fit Out plans, Dunnes "appears to have done nothing at all for the next four weeks";

(3) as regards the fire safety certificate and disability access certificate, "...it appears that Dunnes did nothing at all towards progressing these applications until May 2022";

(4) According to Mr. Robert Heron, who swore the primary affidavits on behalf of Dunnes, the defendant first placed orders for equipment "with a long lead in time", just 17 days before the deadline for completion of the works of 10 June 2022;

(5) the very first time Dunnes indicated an intention to come on site to begin work was 2 June 2022, "...225 days after the Orders were made and eight days before the deadline expired";

(6) Mr. Heron argues in his first affidavit that Dunnes had not breached the orders because the 10 June 2022 deadline was "subject to obtaining a fire safety certificate as set out in Clause 11.2". Mr Tennant sets out a range of objections to this contention at paras. 53 to 56 of his second affidavit, not least that he "[did] not accept that Dunnes is entitled to wait until the very last minute to apply for fire safety certification, and then rely on the absence of fire safety certification to obtain a de facto extension of the deadline specified in the Orders for completion of the works";

(7) PVDL's solicitors wrote nine letters over four months seeking updates on Dunnes' efforts to comply with the orders, receiving only two replies; as Mr. Tennant puts it, "...the obvious inference is that Dunnes did not provide any substantive updates on the steps that were being taken because no steps were actually being taken."

Proposal to Fit Out a Fraction of the "Store"

38. While numerous complaints are made by the plaintiff about the manner in which the defendant has purported to comply with the orders, the central complaint is that Dunnes "does not propose to fit out an "anchor unit". They do not propose to fit out "the Store". Rather, they propose to install a small convenience Store that covers a "[minuscule] proportion of the Store". The Store covers 9,089sqm and spans two floors. It comprises 65% of the available ground floor retail space at the centre, whereas the site covered by the Fit Out Plans is confined to one floor and "[m]ore than 90% of the Store, and the entire basement level, would be left "void"". It is submitted that the retail area would comprise circa 2.9% of the total Store area [See written submissions paras. 100 to 104].

39. The plaintiff accepts that the term "anchor unit" is not defined in the Development Agreement. However, the plaintiff submits that there is "no doubt" that the term is synonymous with the "Store". The definition of "Store" refers to "that part of the Centre to comprise a retail anchor store...". It is submitted that both the statement of claim and the defence in the proceedings used the term "Anchor Unit" to refer to the Store, and that Barniville J. uses the term "anchor unit" and "anchor Store" interchangeably in his judgment to describe the Store.

40. The plaintiff refers to the High Court judgment and to a number of other sources to demonstrate that an anchor tenant is generally the largest tenant in the centre which attracts other tenants to the centre, and generates and maximises consumer footfall for those tenants. The plaintiff submits that "[a] small convenience store with two cashiers is not an "anchor unit" for a large shopping centre" [para. 110 written submissions].

The "Store" and the "Anchor Unit"

41. Order 1(d) requires the defendant "to procure the execution and completion of the Fit Out Works of the Anchor Unit (as defined in the Development Agreement)...". The term "anchor unit" is not in fact defined in the Development Agreement. However, the plaintiff's position is that the "Store" - which is defined in the Development Agreement - and the "anchor unit" referred to in the order are clearly one and the same. As the plaintiff's written submissions put it, "...the Orders and the Development Agreement, without any real doubt, require Dunnes to fit out "the Store" ... 'Anchor Unit' clearly means the Store. Dunnes has never suggested any other meaning" [paras. 111 to 113 written submissions].

42. The submissions of the plaintiff proceed on the basis that the defendant has manifestly failed to fit out "the Store", and refer at para.117 to a number of matters, mainly from clauses of the Development Agreement itself, which underpin what the plaintiff says is the defendant's obligation to fit out the Store. As the written submissions pithily expresses at para. 122, "...fitting out "the Store" means fitting out the Store. As a matter of ordinary language and common sense, fitting out less than a tenth of the Store is not fitting out the Store".

43. As we shall see, Dunnes' position is that "there is no clear express term in the Development Agreement which requires Dunnes Stores to fit out the entire Store at any point in time" [para. 66 defendant's written submissions]. While Dunnes accepts that it is the "anchor" tenant in the centre - see para. 67 of its written submissions in this regard - "...it does not follow that Dunnes Stores is obligated to immediately fit out and trade from the entirety of its Store...". Dunnes relies on the fact that the term "anchor unit" is not defined in the Agreement, and submits that "the meaning and requirements as to what constitutes an anchor store in the context of this case is not commensurate with the extent or quantum of trade capable of being performed from the Store in question, nor does it require Dunnes Stores to trade from every part of the Store" [para. 72 defendant's written submissions].

Compliance of works with the Fit Out Guide

44. The plaintiff points out that, in accordance with Order 1(a), the Fit Out Plans must in all material respects be in accordance with the Fit Out Guide, and that Order 1(c) requires the Fit Out Works to be designed, carried out and completed in accordance with clause 11(4), subclause 5 of which requires the work to be designed, carried out and completed "in accordance with the Fit Out Guide".

45. The plaintiff further submits that clause 4.1 of the Agreement, which relates to the tenant's obligation of "fitting out the interior of the unit", and clause 4.3.1, which states that "the proposed shopfront must show imaginative, innovative and interesting use of the total space available..." make it clear that the Fit Out Plans must cover the entire anchor unit. As the Fit Out Plans do not propose to use the entire shopfront available, the plaintiff maintains that there has been non-compliance with clause 4.3.1.

The same argument?

46. Dunnes was unsuccessful in its contention before the High Court and Court of Appeal that it was at liberty to decide whether or not it would carry out any Fit Out Works at all. The plaintiff submits that the defendant now argues that it can decide to fit out only a small portion of the Store, and that this position is essentially based on the same argument which was roundly rejected by the High Court and the Court of Appeal.

47. To demonstrate this, Mr. Doherty for the plaintiff referred in detail to the judgment of Barniville J. He referred in particular to paras. 141 and 142 quoted above, continuing on through the judgment, and quoting particularly para. 150 quoted above, and para. 151, which is as follows:

"151. In my view...the context of the agreement as a whole is fundamentally inconsistent with Dunnes having such absolute discretion as to whether to go ahead with the works at all, having regard to the indisputable importance to the plaintiff, as the developer, of having Dunnes as the anchor tenant in the Centre in terms of its ability to attract other tenants."

48. Mr. Doherty submitted that these dicta apply "full square to the discretion that's now advocated by Dunnes" [Day 2, p.119] and goes on to quote para. 152 from the judgment quoted above. Counsel went on to submit that "...it is very, very difficult indeed to see how that ... entire process of analysis and logic does not apply full square and entirely to the same argument, the same tail wagging a different dog, now advanced by Dunnes" [Day 2, p.121].

49. In reaching this conclusion counsel draws particular attention to the statement of Barniville J. at para. 180 of his judgment quoted above that "...[t]he idea that two commercial entities, such as PVDL and Dunnes, would reach an agreement on the basis contended for by Dunnes is beyond belief and utterly implausible". It is submitted that it is "scarcely more plausible" that the anchor tenant could elect to fit out a shop covering 2.9% of the Store area, and that the logic of Dunnes' argument is that, if Dunnes could comply with the order by fitting a retail unit within the Store of any size, a small kiosk selling scratch cards would fulfil Dunnes' obligation to fit out the Store: see paras. 129 to 132 of the plaintiff's written submissions.

The Argument is an Abuse of Process?

50. At para. 91 of his second affidavit, Mr. Tennant avers that "...it appears clear that up until its late change of position in March 2022, Dunnes was proceeding on the basis that it would be necessary to fit out the entire Store to comply with the Orders...", and he sets out in that paragraph a number of matters giving support to his view.

51. In his second affidavit of 4 July 2022, Mr. Heron - who is described as "general counsel" of Dunnes, but is not a director of the defendant - addressed the plaintiff's contention in this regard as follows:

"54. At paragraph 91 of Mr. Tennant's Second Affidavit it is contended that Dunnes Stores has recently adopted a new position in delivering the Dunnes Stores Fit Out Plans. That is not the case. It is acknowledged that when the Development Agreement was entered into, it was Dunnes Stores aspiration that the Centre would be a significant retail destination and that Dunnes Stores would be able to open a correspondingly significant trade offering. That aspiration is reflected in the witness statement of Mrs. Margaret Heffernan in the context of the 2011 proceedings which Mr. Tennant now seeks to place reliance upon. It does not follow, however, that Dunnes Stores was obligated by the Development Agreement to fit out the entire Store either then or now, and it is the bona fide, considered and reasonably held belief of Dunnes Stores that whilst it is obligated to fit out the Store it is not obligated by the Development Agreement to fit out the entire Store at any point in time.

55. The only fit out of the Store actually contemplated by Dunnes Stores is that comprised in the Dunnes Stores Fit Out Plans. The decision to finalise the Dunnes Stores Fit Out Plans was taken in keeping with the bona fide held understanding on the part of Dunnes Stores as to what the Development Agreement obligates. In considering the appropriate fit out for the Store Dunnes Stores had regard to the current tenant mix in the Centre and prevailing market conditions, all of which point to the Dunnes Stores Fit Out Plans representing the optimum retail offer for the Store at this point in time."

52. The plaintiff submits that, if the intention to offer a "significant trade offering" was an "aspiration" only (para. 54 affidavit of Mr. Heron, see para. 51 above), and the defendant was always of the view that if it were unsuccessful before the High Court and Court of Appeal it would proceed to fit out only a tiny percentage of the Store, it was obliged to bring this viewpoint to the attention of the High Court; the plaintiff relies in this regard on the rule in Henderson v. Henderson, and the dicta of the Supreme Court in Re Vantive Holdings [2009] IESC 69:

"The rule in Henderson v Henderson ... requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one would do" [Quoted at para. 140 of the plaintiff's written submissions: the emphasis is that of the plaintiff].

53. The plaintiff submits that the failure of the defendant to put forward its view before Barniville J. amounted to "tactically holding back points, as part of a deliberate strategy of dragging out litigation forever", which is "the clearest abuse of process" [plaintiff's written submissions para. 142].

The Defendant's Position

Generally

54. The defendant does not accept that it has failed to comply with the orders "...either at all, or to such an extent as to constitute a contempt of Court which would justify the imposition of a sanction" [para. 1 written submissions]. It submits that it has fitted out the store "in a manner which is permitted under the Development Agreement and the Lease and thus, it has acted in compliance with the Orders" [para. 2].

55. The defendant emphasises "the very high onus of proof and standard of proof that apply in respect of a contempt application", and submit that "it has not been proven by the Plaintiff...beyond reasonable doubt, that the course of action taken by Dunnes Stores breaches the Orders of the Court" [para. 3 written submissions]. While both sides accepted that the standard of proof for a contempt application was "beyond a reasonable doubt", there is some dispute as to whether the alleged contemnor must be proved beyond reasonable doubt to have intended to breach the order of the court; I shall deal with this aspect below.

56. The defendant submits that, whereas Order 1(a) requires Dunnes to prepare and submit Fit Out Plans to PVDL prior to the commencement of the Fit Out Works, neither the Agreement nor the orders require Dunnes to obtain the consent or approval of PVDL for those works, although pursuant to Clause 11(1) of the Agreement, the plans must be in accordance with the Fit Out Guide and carried out to a standard of quality equivalent to the fit out of Dunnes Stores at Henry Street, Dublin. It is submitted that the Fit Out Guide is required to be complied with "in all material respects", and that this phrase injects "an element of subjectivity into [Order 1(a)] such that the dividing line between compliance and non-compliance is neither fixed nor express..." [written submissions para. 50].

57. Dunnes accepted that, at the time of the hearing, it was in breach of Order 1(d) as regards compliance with the deadline - as amended by the Court of Appeal Order - of 10 June 2022, and accordingly sought an extension of time. At the hearing of the present application, the defendant, without objection from the plaintiff, filed in court an affidavit of Leonard Krüger sworn on 27 July 2022. Mr. Krüger is an architect and a director of the firm acting for the defendant; he swore in his affidavit, "...having reviewed the Fit Out Guide and inspected the Store following completion of the works, that the Fit Out Works have been completed, in all material respects, in accordance with the Fit Out Guide..." [para. 11]. He went on to "confirm that the Store did in fact open for trade at 10.00am this morning, 27 July 2022" [para. 13 affidavit].

58. It should be said that both sides adduced evidence from architects as to whether the Fit Out Plans complied with the Fit Out Guide and thus with Order 1(a). None of the respective deponents was cross-examined. The defendants submit, with some justice, that "...[i]n reality, the complaint made by PVDL about compliance with the Fit Out Guide is closely linked to their substantive complaint: that the Fit Out Works are completely insufficient and amount to a breach of the Court Orders which Dunnes Stores denies" [written submissions para. 54].

Breach of the Orders Beyond Reasonable Doubt?

59. Dunnes emphasises that the court is not, in the present application, engaged in deciding whether Dunnes has breached its contractual obligations, but whether it can be established beyond a reasonable doubt that Dunnes has intentionally breached a court order. It submits "that it was the bona fide and reasonably-held belief of Dunnes Stores that their Fit Out Plans were, in all material respects, in accordance with the Fit Out Guide and Clause 11.1 of the Development Agreement" [para. 64 written submissions].

60. Dunnes stresses the point that - as the plaintiff accepts - the terms "anchor", "anchor unit" or "anchor site" are not defined in the Agreement. It is also submitted that there is no clear express term in the Agreement which requires Dunnes to fit out or trade from the entire store at any time [para. 66 written submissions]. In this regard, Dunnes relies on para. 3.26 of the lease, which contains the following covenant on the part of the tenant:

"3.26 Building Covenant

To use all reasonable endeavours to construct a substantial retail store on the Premises in substantial compliance with the Planning Acts and to open the Premises for trade to the public trading as Dunnes and/or Dunnes Stores upon the completion of such construction. This covenant shall be deemed to be complied with on the date the Premises first opens for trade to the public and notwithstanding anything to the contrary in this Lease, the Tenant shall not be obliged to keep the Premises open for trade or business or to continue to trade as Dunnes or Dunnes Stores".

61. Dunnes submits that, in the circumstances, there is nothing preventing Dunnes from commencing to trade from part of the store only with only a partial fit out. Dunnes contend that it has in fact constructed a "substantial retail store" on the premises. If the works to be carried out are, in accordance with Clause 1.38 - which defines "Fit Out Works" as "such fitting out or other works as Dunnes may require to carry out in connection with the intended use and enjoyment of the Store" - works carried out for the intended use and enjoyment by Dunnes, it is submitted that the word "may" connotes a discretion on the part of Dunnes as to what it requires by way of fit out [para. 80 written submissions]. Dunnes cite the following passage from the High Court judgment in support of this argument:

"Where clause 1.38 refers to such works as Dunnes "may require to carry out in connection with the intended use and enjoyment of the store", the plaintiff's construction acknowledges that the detail of the works which Dunnes "may require" may change depending on its precise requirements for the store. The plaintiff's construction also recognises that there is some degree of flexibility as to the precise "intended use and enjoyment of the store" by Dunnes. The store is defined in clause 1.66 as including a "retail anchor store". I note that the permitted user of the premises by Dunnes under the Long Lease is the "Permitted Business" which is defined in clause 1.1.24 of the Long Lease in very wide terms as permitting a broad range of retail and related uses and envisaging changes which may be necessary depending on new trends. The plaintiff's construction, therefore, would permit a situation where Dunnes might change its intention for the use and enjoyment of the store in terms of the nature of the retail business to be carried out from the store". [Emphasis supplied by the defendant at para. 81 of written submissions].

62. This paragraph must however be seen in context. It is preceded by para. 142 - quoted at para. 18 of this judgment - in which Barniville J. indicated that the construction of Clause 1.38 offered by the plaintiff "...allows for a discretion to Dunnes not as to whether to carry out the relevant works but as to the precise detail of those works, subject to the requirement that they be in accordance with the "Fit Out Guide" and of an equivalent quality standard to the Henry Street store". Nonetheless, Dunnes' net position is expressed in its written submissions as follows:

"84. Having regard to the foregoing it is reasonably arguable that there is no legal obligation on Dunnes Stores to immediately fit out and trade from the entirety of the Store. At present the Development Agreement, and therefore the Orders, is ambiguous on this point as it has not been the subject of previous judicial determination. Accordingly, PVDL has failed to prove beyond a reasonable doubt that Dunnes Stores is guilty of contempt for not having completed the fit out of the entire Store. PVDL's interpretation of the Development Agreement is not representative of anything previously determined in these proceedings or expressed in the Orders which PVDL claims Dunnes Stores to be in breach of. It cannot therefore be said that the purported prohibited conduct immediately and clearly flows from, or forms part of, the Order.

85. To determine whether there has been a breach of the Development Agreement and a resulting contempt necessitates a judicial assessment, which has not previously been made, of what the Development Agreement requires as a matter of law, in respect of the extent of the Fit Out Works."

63. The defendant submits that the construction relied upon by Dunnes in deciding what Fit Out Works to carry out was based on a "reasonably-held and bona fide belief" that it was in compliance with the orders and contractual obligations of Dunnes. The defendant relies on the averments of Mr. Heron at paras. 54 and 55 of his second affidavit, quoted at para. 51 above, in this regard. It is submitted that the issues for the court to decide - beyond a reasonable doubt - are whether the current fit out is "unambiguously in breach of the Court Orders and whether Dunnes Stores acted intentionally in this regard. The subjective views or opinions of PVDL are inadmissible on these issues" [para. 89 written submissions].

Applicability of Henderson v Henderson

64. The defendant submits that the plaintiff's reliance on Henderson v. Henderson is misconceived, and that, "in this essentially criminal process...Dunnes Stores cannot be constrained in its defence by purely procedural rules deriving from a non-criminal context. It is entitled to rely on its bona fide and reasonably-held belief about the proper construction of the terms of the Development Agreement, particularly where that construction has not previously been addressed by the Courts..." [para. 93 written submissions].

Evidence of professionals

65. The primary affidavits on behalf of the plaintiff and the defendant were sworn by Stephen Tennant and Robert Heron respectively. However, affidavits were sworn by professionals for both sides as to the compliance of the Fit Out Plan and the proposed Fit Out Works with the Agreement. As I have noted above, none of the deponent professionals was cross-examined on their affidavits.

66. Mr. Seamus Thornton of Michael Collins Associates Architects swore an affidavit on 20 June 2022 exhibiting a substantial report in which he addressed four queries relating to the compliance of the defendant's Fit Out Plans with the Fit Out Guide. His professional view, in essence, was that the Fit Out Plans could not comply with the requirements of the Fit Out Guide or the orders of the High Court as amended by the Court of Appeal.

67. Ms. Ann Hargaden, a chartered surveyor and former director and chair of Lisney Chartered Surveyors, swore an affidavit on behalf of the defendant on 4 July 2022. This affidavit addressed the contention by Mr. Tennant that the fit out proposed by Dunnes was not representative of the fit out of an "anchor unit", but rather that of a small convenience store. Ms. Hargaden proffered the view that "what does or does not constitute an anchor tenant can vary depending on context, and is not necessarily indicative of, or dependent on, the size of the retail offering from which that tenant trades..." [para. 11]. Ms. Hargaden expressed the view that "a Dunnes Stores grocery store, irrespective of size, would be a strong draw for footfall more so than a drapery or textile offering" [para. 13], and concluded, after a brief survey of the tenant mix in the centre, that "...from a retail property perspective...there is little or no utility at present in fitting out the entire Store demised to Dunnes Stores as to do so would in all likelihood be commercially unviable" [para. 15].

68. Mr. Thomas Russell, a director and senior architect with DMOD Architects, swore an affidavit of 6 July 2022 on behalf of the defendant. He exhibited an extensive report, compiled with a colleague, which inter alia contained "an analysis of DMOD Architects of Point Square as currently constructed", and an opinion as to a certificate of completion by Messrs Scott Tallon Walker Architects proffered on 1 July 2022 on behalf of PVDL which certified Point Square as being in accordance with the Development Agreement. The conclusion of the report was that, for various reasons set out in the report, Point Square was not completed in accordance with the Development Agreement.

69. Finally, as I noted above, Mr. Krüger - who did not give his evidence as an expert - proffered a "professional opinion" in his affidavit of 27 July 2022 that the Fit Out Works "in all material respects" had been completed in accordance with the Fit Out Guide.

The Law on Contempt

70. Both parties made extensive submissions on the law relating to civil contempt. The parties were agreed as to many of the principles. They both accept that the object of sanctions for civil contempt is primarily coercive, in that it aims to bring about compliance with the court's order: see Laois County Council v. Hanrahan [2014] 3 IR 143. It was accepted by both parties that sanctions may also serve a punitive purpose: see Shell E&P Ireland Ltd. v. McGrath [2007] 1 IR 671 (Finnegan P.). It is agreed that the applicant bears the onus of showing that the court order has been breached.

71. The parties both accept that contempt of court must be proved beyond a reasonable doubt. Here, the position of the parties begins to diverge. The plaintiff submits that there is no need to establish that the breach was intentional. It relies on the following passages, cited with approval by McKechnie J. at para. 16 of his judgment in Competition Authority v Licensed Vintners Association & Ors. [2009] IEHC 439:

"...[I]f a person or corporation is [restrained] by injunction from doing a particular act, that person or corporation commits a breach of the injunction, and is liable for process for contempt, if he or it in fact does the act, and it is no answer to say that act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order" [Warrington J. in Stancomb v. Trowbridge UDC, [1910] 2 Ch 190.].

"It is also the reasonable view, because the party in whose favour an order has been made is entitled to have it enforced, and also the effective administration of justice normally requires some penalty for disobedience to an order of a court if the disobedience is more than casual or accidental and unintentional". [The House of Lords (Roskill L.J.) in Heatons Transport (St. Helens) Limited v. Transport and General Workers Union [1973] AC 15, approving the aforesaid passage by Warrington J. in Stancomb v. Trowbridge].

72. In Competition Authority v. Licensed Vintners Association, what was at issue was breach of a number of undertakings. McKechnie J. held that "[f]or the purpose of enforcement no distinction arises between an undertaking, an injunction and a court order: all can be treated as equal for attachment and sequestration purposes" [para. 15]. At para. 16, McKechnie J. said that "...[a] party who is the subject matter of an undertaking must strictly comply with its terms. The lack of intent, the absence of motive or the want of negligence will not exempt a party who otherwise breaches an undertaking..."; the court cites the aforesaid dicta in Stancomb and Heatons Transport in this regard.

73. The defendant however argues that a "civil contempt hearing is akin to a summary criminal trial, involving significant procedural safeguards" [para. 8 written submissions]. It is submitted that McKechnie J., in Competition Authority v Licensed Vintners Association, in emphasising that the standard of proof was beyond a reasonable doubt, rejected the argument that a lower standard of proof applied to issues of law than issues of fact, and held that "[t]he entirety of the claim as alleged must be proven beyond reasonable doubt" [para. 28].

74. The defendant submits that

"...a distinction must be drawn between an order to do or refrain from doing something clear and specific, and an order which enforces an obligation of a more complex and ambiguous nature: which obligation may itself require close scrutiny; and which may permit of conflicting legal interpretations...[i]n contrast, where there has been an undertaking given not to picket a factory or to trespass on land, once the actus reus is proven, there can be little scope for doubt as to the intentionality of the action" [paras. 16-17 written submissions].

75. The defendant relies on the decision of the UK Court of Appeal in Irtelli v. Squatriti [1993] QB 83. In that case, the Court of Appeal held that it had not been proven beyond a reasonable doubt that the appellant had intentionally breached an injunction. The order restrained the applicant from selling, disposing of or otherwise dealing with certain property; the applicant subsequently executed a charge on the property. The court held that the applicant had not knowingly breached the order; of significance was the fact that the applicant had received advice from a solicitor, which did not alert the applicant to the risk of the action breaching the order.

76. However, counsel for the plaintiff drew the court's attention to the decision of the Court of Appeal (Civil Division) of Varma v. Atkinson & Anor [2020] EWCA Civ 1602 (27 November 2020). At para. 53 of its decision, the court noted that there were "various unsatisfactory features about the judgments in Irtelli" which it set out, and at para. 54 of its judgment, the court (Rose L.J.) said as follows:

"In my judgment Irtelli v Squatriti cannot stand in the light of the many earlier and later cases which establish that once knowledge of the order is proved, and once it is proved that the contemnor knew that he was doing or omitting to do certain things, then it is not necessary for the contemnor to know that his actions put him in breach of the order; it is enough that as a matter of fact and law, they do so put him in breach...".

77. The court in Varma referred with approval to the view of the House of Lords in the Heatons case that:

"The view of Warrington J [in Stancomb] has thus acquired high authority. It is also the reasonable view, because the party in whose favour an order has been made is entitled to have it enforced, and also the effective administration of justice normally requires some penalty for disobedience to an order of a court if the disobedience is more than casual or accidental and unintentional" [Per Roskill L.J. in Heatons Transport, cited at para. 54 of Varma].

78. In the present case, the defendant submits that "[f]rom a constitutional perspective...intentionality must be an ingredient of the type of conduct at issue in this case..." [para. 23 written submissions]. Its net position is expressed in its written submissions as follows:

"28. If it is contended that Dunnes Stores should now be subjected to serious sanctions, by virtue of failing to comply with legal obligations flowing from the interaction of various complex contractual documents, then it is submitted that constitutional due process mandates that it must be proven, beyond reasonable doubt, that Dunnes Stores knew that this would amount to a breach of the Court Orders. PVDL has failed to establish this."

Are the Orders Ambiguous?

79. The defendant submits that, if the orders are ambiguous, the defendant cannot be guilty of a contempt. The defendant says that the orders are ambiguous in two particular respects:

· Firstly, that Order 1(a) requires the Fit Out Plans to be in accordance with the Fit Out Guide "in all material respects". It is submitted that this phrase "imports an element of subjectivity into the Orders such that the point at which one ceases to be in compliance with the Orders is not clear..." [para. 29 written submissions; Day 2, pp. 118-120];

· Secondly, "...[i]t is clear from the Orders that Dunnes Stores is required to fit out the Store, but the extent of any such fit out is not clear. As articulated in the Affidavits, PVDL and Dunnes Stores hold opposing views on this. The fact is that the Orders do not expressly address the extent of a fit out required. The opposing positions of the parties has disclosed an ambiguity on this issue in the Orders" [para. 29 written submissions].

80. The defendant submits that "the Orders are to be interpreted strictly, akin to penal statutes, and where there is any ambiguity in the Orders a finding of contempt cannot arise where the alleged non-compliance relates to the ambiguity" [para. 31 written submissions]. The defendant cites the well known texts of Arlidge, Eady & Smith (5^th Edition, 2017, para. 12-55) and Miller on Contempt of Court (4^th Edition, 2017, para. 12.38) in this regard.

81. In its submissions, the defendant cites a number of authorities to the effect that an order of court must in unambiguous terms direct what is to be done, and that the necessity for an injunction to be "in clear terms so that the person enjoined knows what he is ordered to do or prevented from doing and so that on any committal proceedings the scope of the order is not in doubt...[i]t is equally important for the purpose of any subsequent committal proceedings that the terms of an undertaking should be unambiguous and that the person giving the undertaking should be left in no doubt as to the consequences of a breach" [Neill L.J. in Hussain v. Hussain [1986] Fam. 134 at 142.

82. The defendant relied on a number of Australian authorities, and in particular the decision of the Supreme Court of New South Wales in Bathurst Real Estate Pty Limited v Fairbrother [2022] NSWSC 351. The defendants in that case were former employees of the plaintiff real estate agency. They resigned from their employment and established a real estate agency which competed with the plaintiff, which issued legal proceedings against the defendants to enforce restraint of trade terms in their respective employment contracts with the plaintiff. The proceedings were settled on the basis of undertakings provided by the defendants to the court, including an undertaking not to use the phrase "Bathurst Real Estate" or "Bathurst Real Estate Agent" in marketing or promotional materials. The plaintiff subsequently claimed that the defendants breached their undertakings and were in contempt of court, having captioned a number of Instagram posts with the hashtag "#bathurstrealestate".

83. The court refused the application, summarising their reasons as follows:

"(1) As the arguments of the parties demonstrated, the Undertaking is ambiguous in the sense that alternative constructional choices were clearly or reasonably arguable in respect of:

(a) whether the Undertaking prohibited the use of the Hashtag with the Publications; and

(b) whether the Hashtag had been "[used]...in...marketing and promotional materials (whether online or otherwise)".

(2) If this first conclusion be wrong, given the potential consequences for its breach, the Undertaking must be strictly construed. On the proper construction of the Undertaking:

(a) The Hashtag was not either of the "phrases" specifically identified in the Undertaking, which made no provision in relation to hashtags.

(b) The only sensible meaning of the Undertaking in accordance with its terms was that it applied only to the personal conduct of [the defendants].

(c) The Hashtag had not been "[used]...in...marketing and promotional materials (whether online or otherwise)" but was part of the ancillary apparatus of the Publications that appeared with them.

(3) Assuming the Undertaking had been breached by the use of the Hashtag with the Publications, [the plaintiff] has failed to demonstrate beyond reasonable doubt that the conduct of any of the defendants was wilful as opposed to merely casual, accidental or unintentional. That there were only eight out of "hundreds and hundreds" of posts does not, without more, bespeak wilful breach to the criminal standard and raises a reasonable doubt that the conduct was merely casual, accidental or unintentional".

84. In his judgment on behalf of the court, Kunc J. drew a distinction between contract matters and a contempt application:

"55....[W]hile the Court will determine the proper construction of the order, there can be no contempt if that determination is the result of resolving clearly or reasonably arguable alternative contentions (and while they may largely overlap, "clearly" and "reasonably" are not coextensive in this context). This is because the existence of those contentions demonstrates that the order is ambiguous in the requisite sense.

56.... Much of [the plaintiff's] argument really seemed to be that because the Undertaking had to be, and could be, given a proper construction, there was no relevant ambiguity and a breach could be demonstrated by reference to that proper construction. This approach missed what might be termed the middle step - a consideration of the quality of the respective contentions to arrive at the proper construction. Given the circumstances in which court orders are made and undertakings given, a completely meaningless order or undertaking will (or ought to) be a very rare creature. On the other hand, the cases demonstrate that, as with all other writings intended to have legal effect, legal skill of the first order can still produce orders and undertakings that will generate debates about their proper meaning in a given (and perhaps unforeseen) set of circumstances." [Emphasis added].

85. The court summarised "the correct approach" in such a case at para. 57 as follows:

"(1) An undertaking must be given a sensible meaning if possible.

(2) Identifying whether an undertaking is ambiguous so as to preclude a finding of contempt can only be done by determining the proper construction of the undertaking.

(3) The tasks of construction and identification of any ambiguity are to be approached with a caution that recognises the consequences for breach may be punishment. This calls for an approach similar to that applied to penal statutes and is why "plain meaning" assumes particular importance. Given the consequences for breach, an order should be interpreted recognising that its meaning should be clear on its face to the person bound, who should not be expected to need recourse either to lawyers or to subtleties such as implications or inferences (reasonable or otherwise).

(4) The proper construction of the undertaking is to be done in accordance with the familiar canons of the construction of legal instruments: an objective determination of meaning giving primacy to the text, but read in the light of the context including the purpose of the undertaking and the surrounding circumstances known to the parties.

(5) There can be no ambiguity if, as in Pang, the undertaking could have only one meaning to avoid being meaningless or nonsensical.

(6) However, there can be no contempt if the meaning of the undertaking is ambiguous.

(7) The requisite ambiguity that will prevent a finding of contempt will exist if the Court is satisfied that, in a respect which is relevant to the particular charge of contempt, there are clearly or reasonably arguable alternative contentions for the constructional choices required to be made to ascertain the meaning of the undertaking. While they may largely overlap, "clearly" and "reasonably" are not coextensive in this context. However, not every difficulty of construction raised by an alleged contemnor will meet this threshold."

86. The defendant submits that the Irish Courts recognise the need to avoid ambiguity: in Laois County Council v. Hanrahan, McKechnie J., referring to the earlier decision of the Supreme Court in Dublin City Council v. McFeely [2015] 3 IR 722, stated that it was "of the first importance that in an application such as this, the underlying order of the court must be specific as to detail and accurate as to legality" [para. 73].

87. Counsel for the plaintiff accepted that "if an order is truly ambiguous then breach of the order will not attract the contempt jurisdiction", but submitted that the "nuanced difference between us is how one reaches the conclusion that an order is truly ambiguous" [Day 2, p.146, lines 11 to 17].

88. Counsel for the plaintiff said the following in relation to the court's approach to possible ambiguity:

"...[T]he Court doesn't park its common sense at the door. The approach is to look at the order, ask what it means in plain terms on its own wording and then look to the context to see if the context supports that conclusion. And only then, if the Court considers that there's ambiguity, does the Court reach the view that this is something that may not attract or cannot attract the contempt jurisdiction..." [Day 2, p.147, lines 3 to 11].

89. Counsel went on to submit that "...[w]e can all look at something and say that might have another meaning, but the question is: Is that a meaning that has any reality? Is it one that is based in reason, is sound and more than superficial, is it something that is likely or plausible? Those are all tests that might be articulated". [Day 2, pp. 147 to 148].

90. Counsel referred to the dicta of Murray J. in Fennell v. Corrigan [2021] IECA 248. In that case, the court referred to the contra proferentem principle, which "operates where, and only where, a provision is capable of more than one meaning. However this principle does not mean that the court looks for ambiguities, inadvertencies or doubtful alternative meanings (per Gannon J. in Re Arbitration between Gaelcrann and Payne [1985] ILRM 109, 113). The maxim should not be used to create an ambiguity which it is then employed to resolve (per Kearns J. in Emo Oil Ltd. v. Sun Alliance and London Insurance plc [2009] IESC 2 at p.5)...". It was submitted that these dicta were of equal application to the issue of ambiguity in the present case.

91. The plaintiff also referred to the decision of Kunc J. in Bathurst, but laid emphasis on the statements at paras. 4 and 5 of the court's summary of the principles quoted at para. 85 above, and particularly the statement that there can be no ambiguity if, on the proper construction, the order can have only one meaning to avoid being meaningless or nonsensical. In concluding his submissions, counsel for the plaintiff stated as follows:

"[Mr. Justice McKechnie] asked himself, what would the ordinary man think this order meant in context? The context being the judgment that Mr. Justice Barniville has already given. That context, including an express repudiation of the selfsame discretion that's now advanced by Dunnes to justify opening up 2.6% [sic] of retail space and passing it off as a substantial anchor of retail offering...[the ambiguity in the order alleged by the defendant is] not a doubt based on reason, it's fantastical, it's hypothetical, it ignores that there has been a clear judicial determination at this point...we respectfully say that not only are we right about the meaning and effect of the order, but we are so clearly right that Dunnes' volte-face in March of 2022 to try to reactivate an already rejected argument and fit out a part only of the store can only be determined to be a breach that give [sic] rise to a breach in contempt, in our respectful submission" [Day 1, pp. 145-6].

Discussion

92. It is important to state at the outset that the court is primarily being asked for a declaration that the defendant is "in contempt of court arising from its failure to comply with [the orders]...". The court is not being asked to decide whether the actions of the defendant, in fitting out and opening a store in the manner in which it did, were in breach of the Development Agreement. That is an entirely separate issue to whether or not the court should find Dunnes in contempt of court, and requires the application of a completely different set of principles. Whether or not Dunnes was in fact in breach of contract is a matter for another day.

93. The legal principles to be applied are in my view clear. They were the subject of consideration by the Court of Appeal in Pepper Finance Corporation (Ireland) DAC v. Persons Unknown [2022] IECA 170. As it happened, the judgment in that case was delivered on 28 July 2022 - the first day of the application in the present matter. I drew the judgment to the attention of the parties at the beginning of the second day of the hearing, and the parties had the opportunity to consider it and refer to it in their oral submissions.

94. Subsequent to the decision of the Court of Appeal, permission was in fact given to the plaintiff to appeal the decision to the Supreme Court. I convened a hearing of the parties in the present proceedings to inquire whether, given the possibility that the Supreme Court might deliver a judgment of particular significance to the issues in the present application, the parties might prefer the completion of the judgment on the present application to be paused until the parties had an opportunity to consider the Supreme Court judgment and possibly make further submissions as a result of the Supreme Court's decision, albeit that this would delay the delivery of judgment in the present application by several months.

95. The parties agreed to adopt this course of action. In the event, the Supreme Court delivered judgment on 31 July 2023 (Hogan J., [2023] ILRM 381); the parties in the present application subsequently informed the court that they did not consider further submissions in the present application to be necessary. Accordingly, I refer below to the Court of Appeal judgment in that case; the legal principles enunciated which I quote were not disturbed or disapproved by the Supreme Court.

96. In Pepper, the Court of Appeal (Whelan J.) cited with approval at para. 104 the decision of McKechnie J. in Competition Authority v. Licensed Vintners Association, and in particular his statement at para. 20 of the judgment that "[t]here are several cases which make it quite clear that the relevant standard is beyond reasonable doubt, and that this applies to all matters at issue in the case, both factual and legal". The court cites at paras. 105 to 106 the decisions of Muller v. Shell E&P Ireland [2010] IEHC 238 and P. Elliott & Co. v. Building & Allied Trades Union [2006] IEHC 340; in the latter case, Clarke J. (as he then was) at para. 3.3 observed on the evidence before him that "...having regard to the penal nature of the contempt jurisdiction, a party could not be said to be in contempt of a court order where, objectively speaking, there was reasonable doubt as to whether the actions complained of came within or without the scope of the order concerned."

97. As to the nature of the civil contempt jurisdiction, the Court of Appeal in Pepper referred to the decision of the European Court of Human Rights in Hammerton v. United Kingdom [2016] 63 EHRR 23, and quoted a number of extracts from the judgment which the court stated were "relevant and accord with the Irish authorities", including the following:

"(a) The nature of civil contempt.

38. In R v. O'Brien [2014] UKSC 23, Lord Toulson, giving judgment on behalf of the Supreme Court, observed that English law had long recognised a distinction between "civil contempt", which was conduct not in itself a crime but which was punishable by the court to ensure that its orders were observed, and "criminal contempt". Lord Toulson stated:

"38. Breach of an order made (or undertaking obtained) in the course of legal proceedings may result in punishment of the person against whom the order was made (or from whom the undertaking was obtained) as a form of contempt... However, a contempt of that kind does not constitute a criminal offence. Although the penalty contains a punitive element, its primary purpose is to make the order of the court effective. A person who commits this type of contempt does not acquire a criminal record."

98. The defendant argues that an essential element of proving civil contempt beyond a reasonable doubt is establishing to that standard that the alleged contemnor intended to breach the court order. It is submitted that an allegation of civil contempt is akin to a criminal charge, and attracts all of the constitutional safeguards which would apply to such a charge. The defendant referred to the decision of the Supreme Court in CC v Ireland [2006] 4 IR 1 in this regard; in that case, s.1(1) of the Criminal Law (Amendment) Act 1935 which rendered the offence of defilement of a girl under the age of 15 an offence which did not require proof of mens rea was held to be unconstitutional. As the defendants put it at para. 24 of their written submissions, "...[t]he Court held that a provision which criminalised a person without mental guilt in respect of such a serious offence failed to respect the liberty or dignity of the individual and constituted a failure by the State to vindicate the right of the citizen to liberty and his good name".

99. The defendant goes on to submit - at para. 26 of the written submissions - that "...[a] rule of law which altogether removes the requirement of mens rea in such circumstances and which creates an offence of absolute liability would not be consistent with the requirements of Article 38.1 of the Constitution"... [i.e., "[N]o person shall be tried on any criminal charge save in due course of law"].

100. Such a far-reaching proposition - that a party alleging civil contempt must establish beyond a reasonable doubt that the alleged contemnor intended to breach the court order - seeks to extend the full protections accorded to a person charged with a criminal offence to the alleged contemnor. The weight of judicial dicta - Competition Authority v. Licensed Vintners Association, Stancomb, Heatons Transport, Pepper - would suggest that civil contempt should not be equated with a criminal charge, at least not to the extent that the applicant must prove the intention of the alleged contemnor to breach the order beyond a reasonable doubt. Other important factors must also be considered, such as the right of a person in whose favour an order has been made to have it enforced, or the need for courts to be able to compel obedience to their orders.

101. Notwithstanding this, it is notable that the House of Lords in Heatons Transport expressed the view that a penalty for disobedience to an order would usually be required "if the disobedience is more than casual or accidental and unintentional". It may be however that these would be factors which would be relevant to whether or not a sanction should be applied by the court, rather than whether or not a contempt of court had occurred; as McKechnie J. said at para. 16 of his judgment in Competition Authority v Licensed Vintners Association, "...[t]he lack of intent, the absence of motive or the want of negligence will not exempt a party who otherwise breaches an undertaking...".

102. In practice, it will often be the case that the intent of the alleged contemnor is self-evident. For instance, if a person is ordered by a court not to trespass on the land of another, and having been appropriately served with an unambiguous order in that regard, continues his trespass, it can reasonably be inferred that his decision to breach the order of the court is conscious and informed. Where the order requires a person to carry out a task or perform a duty, i.e., to perform a positive action, the order must be expressed in clear and unambiguous terms; if it is not, the applicant is unlikely to be able to establish beyond a reasonable doubt that a breach of the order has taken place, much less that a breach is what was intended: see para. 79 et seq above.

103. As we have seen, the plaintiff accepts that an order which is "truly ambiguous" will "not attract the contempt jurisdiction". The plaintiff's case is based on the assertion that there is no ambiguity in the orders, and that there could be no doubt on the part of the defendant, particularly given the terms of the judgment of Barniville J., as to what it was required to do to comply with the orders.

104. It is essential to appreciate the context in which the orders were made. The net issue before Barniville J. was as to whether Dunnes was correct in its assertion that whether it carried out any Fit Out Works at all under the Development Agreement was a matter entirely within its own discretion; that if Dunnes did not "require to carry out" such works "in connection with the intended use and enjoyment of the store", it did not have to do so. As we have seen, the court rejected this interpretation, holding that the "discretion" was "not as to whether to carry out the relevant works but as to the precise detail of those works...": see para. 18 above.

105. Having made this finding, the court ordered "specific performance by the Defendant of its obligations under Clause 11 of the Development Agreement", and set out orders which reflected various of the terms of Clause 11 of that agreement. This imposed mandatory, pro-active obligations on the defendant to draw up Fit Out Plans, which would be in accordance with the Fit Out Guide with a view to carrying out Fit Out Works which would be "carried out to a standard of quality equivalent to the fit out of Dunnes Stores at Henry Street". Most importantly from the point of view of the plaintiff, Order 1(d) required the defendant to "procure the execution and completion of the Fit Out Works of the Anchor Unit (as defined in the Development Agreement)...within 26 weeks of the date of this Order...".

106. As we know, the term "anchor unit" was not in fact defined in the Development Agreement, but it is submitted that there can be no doubt that the term "anchor unit" and "the Store" - the latter of which terms is defined in the Agreement - are synonymous, and were regarded as such by Barniville J.

107. It is not apparent from the judgments of the High Court or the Court of Appeal that what exactly constituted an "anchor unit" was ever an issue in argument before those courts. The issue - so "net" that the Court of Appeal was able to give an ex tempore judgment dismissing the appeal - related solely to whether or not Dunnes had to carry out any work at all. It is certainly the case that Barniville J., in arriving at his decision, had regard to the commercial rationale behind the Development Agreement, and the fact that "it would be critical for the plaintiff, as the developer, to have an anchor tenant in terms of attracting other tenants to the Centre..." [para. 152: see para. 20 above]. However, the issue of exactly what would be comprised in an "anchor unit" was simply not something the court was required to consider.

108. Also, Order 1(d) required the defendant "to procure the execution and completion of the Fit Out Works of the Anchor Unit". As we have seen, the Fit Out Works are defined at para. 1.38 of the Development Agreement as "such fitting out or other works as Dunnes may require to carry out in connection with the intended use and enjoyment of the Store...". While Barniville J. held that this definition did not permit Dunnes to decline to carry out any fit out works at all, it cannot in my view be said that it is apparent from this definition alone that the Fit Out Works were to extend across the entire area leased by Dunnes, rather than some smaller area chosen by Dunnes.

109. The plaintiff asks the court to infer that "anchor unit" must be synonymous with "the Store": see paras. 38 to 42 above. It draws upon the terms of the Development Agreement as well as the judgment of Barniville J. to suggest that the only possible inference is that "anchor unit" must mean the entire area leased by Dunnes, and that it is evident that both parties proceeded on this basis, nor was any other interpretation of "anchor unit" suggested by Dunnes until the Fit Out Plans were proffered in March 2022. It is suggested by the plaintiff that a "small convenience store with two cashiers" could not possibly be an anchor store.

110. The issue however is whether the order of the court, and in particular the requirement that the defendant procure the execution and completion of fit out works of "the anchor unit", is ambiguous such that it should not be enforced by the civil contempt jurisdiction. The general commercial rationale for an anchor tenant is well understood, and articulated in the High Court's judgment. However, at what point may a tenant in a shopping centre be taken to have unarguably complied with the criteria required for it to be considered an anchor tenant? Must that tenant - in the absence of an express contractual commitment requiring it to do so - fit out the entire of the store it has leased in order for it to be considered an anchor tenant?

111. If Dunnes decided for commercial reasons to fit out only 75% of its leased space and trade from that, would it be considered by the plaintiff to be an anchor tenant? It might be that the plaintiff would be prepared to accept such a situation as fulfilling Dunnes' obligation to fit out an "anchor unit", as the combination of the Dunnes trading name and the store being the largest unit in the shopping centre might cause the plaintiff to be prepared to consider Dunnes an "anchor unit", even though it was not trading from the entire space.

112. But is the store an "anchor unit" if Dunnes fits out only 50% of its space and trades on this basis? Or an even lower percentage? In the absence of a contractual provision imposing an obligation on Dunnes to fit out the entire of its unit for trade - or even a substantial part of it - it seems to me that there is a lack of clarity as to exactly what the execution of fit out works for an "anchor unit" means.

113. The plaintiff relies on the pleadings to support its interpretation. At para. 5 of the statement of claim, it pleads as follow:

"Pursuant to the Development Agreement, PVDL and Mr Crosbie agreed to, inter alia, develop a shopping centre at the Point Village to the specifications set out therein (the "Point Village Centre"), to include a substantial anchor unit (the "Anchor Unit") which Dunnes would fit-out, occupy and trade as a retail store. The Anchor Unit was demised by Mr Crosbie to Dunnes for a term of 250 years pursuant to a lease dated 28 November 2008 (as amended) (the "Lease")."

114. The defendant in its defence pleads a number of matters in response to para. 5 of the statement of claim. At para. 8.1, it pleads as follows:

"8.1 It is admitted that pursuant to the Development Agreement, PVDL and Mr Crosbie agreed to, inter alia, develop the Point Village, to include the Anchor Unit."

115. Counsel for the plaintiff submits that this indicated "an admitted understanding which meant that the court didn't need to make any determination of that issue, in light of the pleadings, and it is referable back to the Development Agreement"...[day 1, p.100, lines 6 to 11].

116. Paragraph 8.1 of the defence admits that it was the obligation under the Development Agreement of PVDL and Mr. Crosbie to "develop the Point Village, to include the anchor unit". The succeeding sub-paragraphs go on to set out the position which Dunnes maintained at the hearing before Barniville J. - that Dunnes was not in fact under any obligation to trade from the anchor unit, and was not obliged to carry out any works to fit it out as it did not "require to carry out" any such works, as there was no "intended use and enjoyment of the store" pursuant to clause 1.38 of the Development Agreement.

117. It does not seem to me that there was any "admitted understanding" in these pleas as to exactly what "anchor unit" meant. Paragraph 8 of the defence was addressing a different point - whether Dunnes was required under the Development Agreement to carry out any fit out works to the anchor unit at all. Exactly what constituted an anchor unit was not an issue in dispute between the parties before Barniville J., who was not required to decide that issue and did not do so.

118. As we have seen at para. 51 above, Mr. Heron avers that "it is the bona fide, considered and reasonably held belief of Dunnes Stores that whilst it is obligated to fit out the Store it is not obligated by the Development Agreement to fit out the entire Store at any point in time". He considers that the Fit Out Plans represent "the optimum retail offer for the Store at this point in time", having regard to "the current tenant mix in the Centre and prevailing market conditions".

119. Dunnes is however obliged by the order of Barniville J. to "procure the execution and completion of the Fit Out Works of the Anchor Unit...". Can it be said that in carrying out the construction which it has executed, Dunnes is in breach of this order beyond a reasonable doubt?

120. The only expert evidence as to whether the current premises could constitute an anchor unit was that of Ms. Hargaden, whose unchallenged evidence is summarised at para. 67 above. She avers that a Dunnes Stores grocery store "irrespective of size", would be a "strong draw for footfall", but does not go as far as to say that the current premises can properly be regarded, in her professional opinion, as an anchor store. One of the difficulties is that the store as constructed was completed only as the application before the court was beginning. The court has no evidence as to how the store has performed, or whether it has in fact proved to be a "strong draw for footfall", one of the essential characteristics - one would have thought - of an anchor unit in a shopping centre. The exhibits to Mr. Krüger's affidavit, and particularly the photographs of the store as of the opening day of 27 July 2022, show that it is a retail store which appears to be selling mainly or perhaps only food products. The Dunnes Stores signage is prominently displayed. It is not comparable to "a small kiosk selling scratch cards"; it appears to function as a normal retail unit, albeit only occupying a fraction of the area leased to Dunnes for the anchor unit.

Conclusions

121. The defendant prepared and submitted Fit Out Plans. Those works were carried out. There is dispute among the professional deponents as to whether the Fit Out Plans were in accordance with the Fit Out Guide. However, the defendant did procure the execution and completion of the works in the Fit Out Plans. The defendant accepts that it is in breach of the order requiring it to complete the works by 10 June 2022, and seeks an order extending the time in this regard.

122. The real issue between the parties is as to whether those works were in breach of Order 1(d) "to procure the execution and completion of the Fit Out Works of the Anchor Unit...". The plaintiff's position is that this order compels the defendant to fit out the entire of the space it had leased for an anchor unit, and that the "convenience store" was a flagrant and "breathtakingly cynical" breach of the order.

123. The onus is on the plaintiff to establish that the court's order has been breached beyond a reasonable doubt. This in turn requires that the order is unequivocal and does not admit of any ambiguity: as points 5 and 6 of the summary by Kunc J. in Bathurst puts it, "[t]here can be no ambiguity if...the undertaking could have only one meaning to avoid being meaningless or nonsensical...there can be no contempt if the meaning of the undertaking is ambiguous."

124. The plaintiff contends that it is plain from the surrounding circumstances, the contractual documentation, the actions of the parties and the dicta of the court that the parties understood that Dunnes' obligation was to fit out the entire of its leased space. It asks this Court to draw that inference in circumstances in which there is no definition of an "anchor unit" in the Development Agreement - notwithstanding the reference in the order to such a definition - and where Barniville J. was not required to, and did not, decide exactly what would be comprised in an anchor unit.

125. For a court to be satisfied beyond a reasonable doubt that a breach of an order has occurred, it must be absolutely clear what compliance with that order would be. In my view, it is not clear exactly what is required for a court to be satisfied beyond a reasonable doubt that compliance with its order has not taken place. The term "anchor unit" connotes a store which, by virtue of its size and commercial reputation, generates footfall which is of benefit not only to the anchor store itself, but also to other tenants in the shopping centre. Can this only be achieved if the entire of a given area designated for an anchor unit is fitted out? There may be a range of economic circumstances which might justify the fit out of a smaller unit than originally intended, while retaining the essential characteristics of an "anchor unit"; in this regard, I note from Ms. Hargaden's evidence, quoted at para. 67 above, that "what does or does not constitute an anchor tenant can vary depending on context, and is not necessarily indicative of, or dependent on, the size of the retail offering from which that tenant trades...".

126. If it is the case that it is not possible to state with certainty what would constitute compliance with the order, it is ambiguous and cannot be enforced by means of the civil contempt jurisdiction. In the absence of an unequivocal contractual definition or a judicial interpretation of the term "anchor unit", the person to whom the order is directed cannot be certain as to exactly what acts are required to comply with it.

127. The plaintiff makes the case that in no circumstances can a store, the retail area of which comprises 2.9% of the total area of the store, be described as an anchor unit. It is notable that the defendant, while maintaining that the fit out of a store of this size was justified, at no point makes the case that the existing store is an "anchor unit".

128. However, if the order is ambiguous so that one could not say definitively what would constitute compliance with it, there is no standard against which the defendant's purported act of compliance can be measured. The order is either enforceable on its own terms in accordance with the established civil contempt procedures, or it is not; as Kunc J. stated at point (3) of his summary of "the correct approach" - see para. 85 above - "[g]iven the consequences for breach, an order should be interpreted recognising that its meaning should be clear on its face to the person bound, who should not be expected to need recourse either to lawyers or to subtleties such as implications or inferences (reasonable or otherwise)". The plaintiff askes this Court to infer that the meaning of "anchor unit" is so clear that it can only mean the entire space available to Dunnes. In the absence of a contractual specification or judicial determination to this effect, it cannot in my view be said that this level of clarity can be achieved, so that the order is unambiguous or that the defendant is guilty of contempt beyond a reasonable doubt in failing to fit out the entire area.

129. The requirement for clarity seems to me to apply also to Order 1(a), which requires that the Fit Out Plans be "in accordance with the Fit Out Guide...in accordance with clause 11.1 of the Development Agreement". The defendant argues that the requirement in the order that the plans comply with the Fit Out Guide "in all material respects" makes it unclear as to exactly what would constitute compliance with the order. As we have seen - at paras. 65-69 above - while Mr. Thornton on behalf of PVDL expressed the view that the Fit Out Plans did not comply with the requirements of the Fit Out Guide, the view of Mr. Krüger on behalf of Dunnes was that the Fit Out Works as completed were in accordance with the Fit Out Guide "in all material respects". It seems to me that the defendant is correct in its assertion; there could be widely differing views as to what might constitute compliance by the defendant with this order. In the circumstances, the order is ambiguous such that the defendant cannot be in contempt of the order beyond a reasonable doubt for allegedly failing to comply with it.

130. Mr. Heron, at paras. 54 to 55 of his second affidavit quoted at para. 51 above, asserted that the defendant had a "bona fide, considered and reasonably held belief" that, although obliged to fit out the store, it was "not obligated by the Development Agreement to fit out the entire store at any point in time...".

131. Leaving aside the fact that Mr. Heron is not a director of the defendant and the absence of evidence beyond Mr. Heron's own assertion as to what the belief or understanding of the defendant was, I do not consider that any such subjective belief, if it existed, would have availed the defendant if it had failed to comply with an unambiguous order of this Court, although it might have affected the court's view as to what sanction should apply in respect of any contempt found to exist. However, as I have found the order to be ambiguous, the motivation of the defendant in completing the Fit Out Works in the way it did is in my view irrelevant.

132. The plaintiff considers that the failure of the defendant to bring to the attention of Barniville J. that it intended to fit out only a small proportion of the available space if it were unsuccessful in resisting the plaintiff's application for specific performance breaches the rule in Henderson v. Henderson: see paras. 52 to 53 above and para. 64 for the defendant's response. The rule is intended to ensure that, in civil litigation inter partes, all relevant matters are brought before the court so that all the issues can be decided; it is a rule of civil procedure rooted in public policy, but in my view is ill-suited to an application in a civil contempt context. I do not think that the rule can be used to render enforceable an order which is otherwise unenforceable due to ambiguity.

133. Finally, I think that it is only fair to say that there emanated from the plaintiff in its affidavits and submissions an air of frustration and exasperation with the actions of the defendant in purporting to comply with the orders. The plaintiff considered that the terms of the Development Agreement entitled it to insist that Dunnes fit out the entire of the space leased to it for the anchor tenancy, and that the orders it procured would force Dunnes to do this. When Dunnes fitted out "half a penalty box" rather than the entire pitch, the plaintiff considered that the defendant had clearly and consciously breached the orders of the High Court and Court of Appeal.

134. However, I return to the point made at the outset of the "discussion" section of this judgment at para. 92 above. This Court is not resolving a contractual dispute between the parties. It may be that whether or not, in failing to fit out the entire area or even a substantial portion of it, the defendant is in breach of the Development Agreement, will be litigated by the parties in these or other proceedings. It would not be appropriate for me to comment on the way in which the defendant purported to perform its contractual obligations and whether or not the plaintiff is correct in characterising that performance as "breathtakingly cynical"; it is sufficient for me to hold that the plaintiff has not established beyond a reasonable doubt that the defendant is in contempt of the orders, and that the plaintiff's application must be refused.

Orders

135. There will be an order dismissing the plaintiff's application. I will permit the parties to make submissions not exceeding 2,000 words in relation to costs and any other ancillary orders which the parties may consider necessary, including the defendant's application to extend the time for completion of fit out for the unit. The submissions must be made within 14 days of this judgment. I will give the parties liberty to apply in case of doubt or difficulty. Otherwise, I will proceed at the end of the 14-day period to make appropriate orders on receipt of the respective submissions unless I consider that a short hearing would be desirable or necessary, in which case the parties will be informed.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Point Village Development Ltd v Dunnes Store UnLtd Company (Approved) [2025] IEHC 212 (10 April 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC212.html Cite as: [2025] IEHC 212

High Court of Ireland Decisions