The High Court has proposed declaring that an agreement for two kiosks at Grand Canal Harbour, Dublin, remained in force, while leaving the terms of its final order for further submissions from the parties.
In a judgment delivered on 2 February 2018, Mr Justice Tony O’Connor said the agreement incorporated its terms except for the clause that had allowed either side to terminate if planning permission was not obtained by a six-month deadline. The court said the landlord had supported the kiosk project after learning of planning permission in June 2015, then sought to terminate the agreement on 6 July 2015 by relying on the missed deadline.
The dispute was between Fastwell Limited, the plaintiff, and OCL Capital plc, the defendant. Fastwell sought a declaration that the agreement remained effective, an order requiring OCL to withdraw its termination notice and facilitate the kiosk works, and damages. It also sought rectification of the agreement to include part of the basement.
The judge found that the basement had not been agreed as part of the premises to be leased. He said the written agreement did not refer to it and Fastwell had not established a continuing common intention to include it. The court proposed dismissing the rectification claim.
The planning permission granted by Dublin City Council in April 2015 covered two kiosks and stairwells. The judgment said no witness with professional experience had established that work on the kiosks and stairwell, without the basement, would breach that permission. The judge considered that the landlord’s support after June 2015 had led Fastwell to believe it would not rely on the missed deadline to terminate. He said the termination notice did not identify the breakdown in trust between the parties as the reason for ending the arrangement.
The court said the landlord might be able to give notice over Fastwell’s failure to comply with an agreed plan of action, but it had not heard submissions on that issue and could not determine it. The judge proposed allowing Fastwell to start work on the kiosks and stairwell in compliance with the planning permission, with timing and final terms to be addressed after further submissions.
The court also proposed dismissing Fastwell’s damages claim. The judge said it was not actively pursued, lacked substantive evidence of loss, and Fastwell had failed to mitigate any loss. He was not satisfied that the company had suffered loss because of the termination notice.
A note appended to the judgment said counsel were to address the court on outstanding issues, including the terms of the final order, on 2 March 2018. The judgment therefore set out proposed relief; it did not record the terms of a final order.