The High Court has refused an application by Setanta Centre landlord Setanta Centre to strike out Clydaville Investments Limited’s claim for a new tenancy of first-floor office space, ruling that the claim could not yet be said to be bound to fail.
Mr Justice Barr delivered the judgment electronically on 20 October 2021, on a de novo appeal from the Circuit Court. The application sought to end the tenant’s claim under the court’s inherent jurisdiction or, alternatively, to have the landlord’s defence tried as a preliminary issue.
The office lease expired in March 2013. The tenant sought a new tenancy under the Landlord and Tenant (Amendment) Act 1980. The landlord relied on section 17(2)(a), which can prevent a new tenancy where a landlord intends to demolish or reconstruct buildings, or requires vacant possession for a development scheme, and has planning permission.
The landlord had planning permission to redevelop the Setanta Centre, excluding the tenant’s separate ground-floor retail unit. The court said the landlord had shown a clear intention to proceed: demolition contractors had stripped internal finishes and services, removed some windows and demolished part of the upper floors. The landlord had paid Walmac Demolition EC Limited €3,613,082.80 for work carried out.
But the tenant had separate High Court proceedings concerning its ground-floor retail unit. It claimed rights in the nature of easements and other property rights over parts of the centre affected by the proposed redevelopment. The rights asserted included access across a courtyard for deliveries and rights relating to air extraction and waste compaction facilities. Those claims had not been determined.
Justice Barr said that if the tenant succeeded in that separate action, there was a realistic possibility the landlord could not proceed under its current planning permission. The court said it was not determining the likelihood of success in that action, nor making a finding on the landlord’s section 17 defence. Given the high threshold for striking out a claim as bound to fail, it was not possible at this stage to say the tenant’s new-tenancy claim could not succeed.
The court refused both the strike-out application and the alternative request to have the section 17 issue tried as a preliminary issue. It considered that the new-tenancy application should be heard in the usual way before the Circuit Court, after the position had been clarified. The judgment did not determine the tenant’s entitlement to a new tenancy or the landlord’s substantive defence. The parties were given two weeks to file written submissions on the terms of the final order, costs and any other matters.