The High Court has refused Dunnes Stores’ application to inspect six lease agreements in its €15 million dispute with Point Village Development Limited, which is in receivership.
In an ex tempore judgment delivered on 15 September 2017, Mr Justice Twomey ruled that the agreements were not necessary for the fair disposal of the case. The application concerned inspection before the substantive hearing, which was due to take place shortly in the Commercial Court. The court did not decide whether Dunnes owes the claimed €15 million.
Point Village’s action seeks damages for an alleged breach of a settlement agreement made on 7 July 2010 between Dunnes, Point Village and Harry Crosbie. Under clause 11(c), €15 million plus accrued interest was to be released after Dunnes’ solicitors received confirmation that binding agreements for lease had been exchanged for at least seven specified ground-floor units, including at least four internal units.
Dunnes had previously sought discovery of the six agreements. The High Court refused that request in 2016, and the Court of Appeal upheld the refusal in 2017. Both rules governing discovery and inspection require the documents to be necessary for the fair disposal of the matter.
Dunnes argued that a July 2017 letter from Point Village’s receivers’ solicitors, McCann Fitzgerald, revealed a “manifest error” about what it meant for an agreement to be binding. The letter addressed the replacement of tenant Martino’s, which had gone into liquidation, by Freshii. McCann Fitzgerald said the parties could agree to terminate a binding contract, and that ending it did not mean it had never been binding.
Justice Twomey found nothing illogical in that explanation and rejected Dunnes’ claim that it amounted to a manifest error. He said there was no basis to depart from the earlier decisions that access to the agreements was not necessary.
The judge added that even if there had been a manifest error, inspection would not serve a purpose in deciding the dispute. The central issue was the interpretation of clause 11(c), including whether it required Dunnes to pay Point Village—not the beliefs or alleged errors of the receivers’ solicitors. The order for inspection was refused.