The Supreme Court has overturned injunctions requiring trader Thomas Burke to leave part of St Helena’s Shopping Centre in Finglas while Dublin Corporation’s proceedings over the property await trial.
The Corporation had bought the shopping centre from Frimley Developments Limited and intended to develop the site for housing. It claimed to have acquired vacant possession, but found Burke occupying part of the property and using a freight container from which he was trading.
The High Court granted interlocutory injunctions on July 9, 2001 requiring Burke to remove himself and his property, barring him from entering or occupying the site, preventing use of the container and restraining interference with construction works.
Burke disputed the Corporation’s account. He claimed that he had occupied a shop on the site for years, had paid rent and rates and held a tenancy which had never been terminated. His solicitors said a written tenancy agreement had existed but Burke’s copy was destroyed in a fire.
Geoghegan J, giving the Supreme Court’s reasons for unanimously allowing the appeal, said the Corporation had already been aware that Burke had operated a shop at the centre for a substantial period. If the facts advanced on Burke’s behalf were ultimately proved, the court said it appeared likely that he would be found to have held a month-to-month tenancy.
At this interim stage, the Supreme Court did not decide whether that tenancy actually existed. It held instead that Burke had advanced a sufficiently arguable property claim that removing him before trial could cause harm that damages might not adequately compensate, including possible effects on rights under landlord and tenant legislation.
The court also refused to maintain the injunction concerning the container. Burke said he had moved into it after his shop was damaged and claimed Corporation permission to use it, an assertion disputed by the Corporation. The Supreme Court considered that the status quo should be preserved until the full action determined the parties’ rights.