The High Court has ordered limited discovery in a dispute over the Ashleaf Shopping Centre car park and services, refusing several broader requests by both sides. The ruling addressed what documents each side must disclose; it did not decide the underlying claims or counterclaim.
Dunnes Stores and Almonte allege that a 2006 agreement linked money owed for the car park with sums due under Dunnes Stores’ anchor-unit lease. The receiver disputes that the set-off clause binds him. The parties also disagree about the basis on which he operated and managed the car park after his appointment in February 2013, and about service charges and access arrangements.
Justice David Barniville ordered the receiver to disclose documents showing how Gary Smith and the plaintiffs applied or gave effect to the set-off clause between the agreement’s execution on 24 November 2006 and the receiver’s appointment on 5 February 2013. He refused disclosure of documents about how the receiver himself allegedly applied the clause, saying that was not supported by the pleaded case.
The receiver must also disclose documents showing the basis for his occupation, management or control of the car park, including documents about his alleged exercise of rights reserved to the landlord under the long lease. The judge did not order further disclosure about the day-to-day manner of that management, finding that the plaintiffs could give evidence about observable actions and that some related records had already been agreed for disclosure.
On the disclaimer of Gary Smith’s interest in the car park occupational lease, the court ordered disclosure of an email dated 30 April 2015 from DLA Piper UK LLP to AIB enclosing the notice. The plaintiffs dispute the disclaimer’s validity and whether AIB received it within seven days. The judge said the validity issue was for trial and made no ruling on the jurisdictional arguments; he found the offered email sufficient for the discovery application.
The receiver sought records about alleged losses to Dunnes Stores after changes to service hours and service-yard access took effect on 1 December 2017. The court ordered disclosure of documents evidencing any resulting loss or damage from 1 December 2015 to the date of the order, and steps taken to mitigate loss since notification on 25 May 2017. It also directed Dunnes Stores to provide a supplemental discovery affidavit for later documents no later than 21 days before trial, unless the parties agree another period.
The judge refused the receiver’s requests for discovery of tax advice received by the plaintiffs about the agreements, and refused the plaintiffs’ additional requests concerning alleged breaches of the car park long lease. The receiver had already agreed to disclose specified car park records, including income statements, rates and utilities invoices, and certain leases and contracts. The court said it would hear counsel on the terms of the orders.