The High Court refused an interlocutory injunction application seeking to prevent the closure of the Supervalu store at Carlow Shopping Centre. Mr Justice Hedigan delivered the decision on 22 January 2016, the day the store was due to close.
The plaintiffs were Thomas Thompson Holdings Limited, Montaya Developments Limited and Carlow Centre Management Limited. They said the proposed closure would breach a lease covenant requiring the store to remain open, damage the shopping centre and affect other businesses there. They sought to keep the store operating pending a full trial. The defendants said they would continue to incur trading losses if required to operate it until the lease ended in September 2018.
The judge said the requested order was mandatory in substance because it would require the defendants to continue running the store against their wishes. He cited annual losses reported for the years ending 2012 to 2015: €136,000, €108,000, €651,000 and €582,000 respectively.
For a mandatory order, the plaintiffs had to show a strong case likely to succeed at trial. The judge said they had raised an arguable case and a bona fide question about enforcement of the “keep open” covenant, but that, in light of the authorities considered, it could not realistically be regarded as a strong case likely to succeed. He said it was not for him to decide the underlying legal issue at the interlocutory stage.
The judge also set out findings on other injunction criteria. He found no reason to conclude that damages would be inadequate or that the defendants could not pay them, and said damages could be assessed using ordinary criteria and expert evidence. The plaintiffs accepted they could not provide a meaningful undertaking in damages; given the likely continuing losses to the defendants, the judge said this would have been a bar to the order even if the other criteria had been met.
On the balance of convenience, he said he could not weigh the competing scenarios and that the court should not intervene. He also noted the lease provided for an indemnity for breaches of covenant and contemplated damages as a remedy. The court refused the injunction. The decision addressed the interlocutory application; it did not determine the covenant dispute at trial.