The High Court has issued an injunction restricting the second named defendant, Corajio Unlimited Company, trading as Mr Price, from selling food, food products or groceries in breach of the lease for Unit 4 at Barrow Valley Retail Park in Carlow. It also declared that “groceries” under the lease extends beyond food and food products to cover specified frequently purchased household consumables.
The order followed a substantive judgment delivered on 3 June 2022. In that judgment, Mr Justice Mark Sanfey found that “groceries” was not synonymous with food or food products and included a range of non-food items. The 15 July ruling dealt with the orders to be made on foot of those findings, after the parties could not agree their wording and made submissions at a hearing.
The plaintiffs, Dunnes Stores Unlimited Company and Camgill Property A Sé Limited, had sought broad orders enforcing the lease restrictions. The defendants proposed an order tied more closely to the court’s findings. The judge said the dispute had concerned whether Mr Price breached restrictions the defendants accepted applied to their unit, rather than whether the restrictions were binding in general. A prior order had limited the hearing to liability, leaving any account of profits to be considered later.
The injunction prohibits the second named defendant, in its capacity as successor to the leasehold interest and as a tenant, sub-tenant, occupier or trader in the shopping centre, from using or permitting use of the unit in breach of Clause 20 of the lease’s Second Schedule. It specifically bars offering for sale or selling food, food products or groceries contrary to that clause and corresponding covenants by the first defendant’s predecessor in title.
The declarations say that groceries include “non-durable consumable household items which are purchased frequently”. The listed examples include healthcare and household healthcare products, cleaning and household products, pet care and pet food, toiletries, hair and oral care products, detergents, washing powder, shower gels, deodorants, shampoos, cosmetics, toothbrushes, toothpaste, kitchen towel and toilet rolls.
The judge said a comprehensive definition could not be given, as perceptions change and future products may create uncertainty. He awarded the plaintiffs the costs of the action to date, including reserved and costs-in-the-cause items and costs of an interlocutory injunction. Execution on the costs order is stayed for 28 days after the order is perfected, and, if an appeal is filed during that period, until the appeal is determined.
The matter was adjourned to the Chancery list for directions on how any quantum module should proceed. The parties were given liberty to apply over particular or unforeseen difficulties with the order.