The Court of Appeal has upheld an order requiring Dunnes Stores to keep the Edward Square unit’s doors to the shopping centre open while the store is trading, finding their permanent closure breached planning permission and lease covenants. It set aside compensatory damages and the finding that Dunnes committed the tort of causing loss by unlawful means, but left intact an award of €45,000 in aggravated damages.
The appeal concerned automatic doors connecting Dunnes’ anchor unit in Edward Square Shopping Centre in Galway with its courtyard. The High Court had ordered Dunnes not to disable the doors’ automatic opening mechanism during store opening hours and to keep them open then. It also awarded compensatory and aggravated damages. Dunnes appealed the judgment and orders.
In a judgment delivered on 9 May 2019, Ms Justice Costello said the planning permission, read with the application documents and plans, committed the development to pedestrian links between Edward Square and Eyre Square Shopping Centre through the doors and across the anchor unit. The planning permission had no express condition naming the doors, but the court held that Condition 1 incorporated the commitment shown in the documents. The link had to operate while the anchor unit was open for business; the judgment did not require Dunnes to keep the store open for trade.
The court also upheld findings that closing the doors breached lease covenants relating to common areas, alterations, planning compliance, statutory notices and fire safety. Galway City Council had issued a warning letter in July 2015 alleging unauthorised closure of the pedestrian access. The judgment explained that such a warning letter begins an enforcement process and does not itself legally require compliance under planning law. However, the lease covenants required Dunnes to comply with notices of that kind. The court also upheld the finding that Dunnes failed to comply with fire officers’ directions and recommendations to reopen the doors while a proposed change was being addressed.
The Court of Appeal rejected Dunnes’ argument that a lease clause allowing it not to keep the unit open for trade entitled it to close the doors while the store was trading. It held that the clause did not authorise indefinite closure or excuse breaches of other covenants. The landlord was entitled to an injunction requiring the doors to remain open during trading.
The court overturned €53,860.50 in compensatory damages linked to rent withheld by tenant HMV and €10,000 in general damages concerning other tenants. It found insufficient evidence that Dunnes’ closure caused those losses. It also overturned the finding of the tort of causing loss by unlawful means because the required causal link was not established.
The €45,000 aggravated-damages award was upheld. The court considered the evidence of the circumstances of the closure and Dunnes’ conduct before and during the proceedings sufficient to support that award. The appeal was dismissed except for the reduction of damages, leaving €45,000 in damages.