The High Court has ordered limited discovery in a dispute over Bazsont Limited’s claim to a new tenancy for a Starbucks unit at Liffey Valley Shopping Centre. Mr Justice Woulfe allowed the company’s appeal in part, directing discovery of documents in category 3, subject to excluding communications that were pre-contractual negotiations leading to the 2016 deed of variation. He refused discovery under category 4, which sought documents about legal assistance received in connection with that deed. The judgment did not decide whether Bazsont is entitled to a new tenancy.
The underlying case concerns Unit 21. Bazsont claims that a 2010 lease ended in December 2014 and was followed by a yearly tenancy that was not subject to a deed renouncing the tenant’s right to a new tenancy. It says a further lease was granted in 2016 and was also outside that renunciation. The landlord, BVK Highstreet Retail Liffey Property Limited, disputes that account. It says the 2016 instrument varied the 2010 lease, leaving the renunciation in force, and that Bazsont exercised a break option requiring it to give up the unit in May 2018. The landlord counterclaims for possession, damages and mesne rates.
The discovery dispute arose after the County Registrar refused both categories sought by Bazsont. The Circuit Court upheld that refusal in November 2020 and awarded costs to the landlord. The High Court reheard the discovery appeal on the affidavit evidence that had been before the Circuit Court.
Justice Woulfe found category 3 relevant because the parties dispute whether the renunciation remained in force after the 2016 deed. He considered that the requested documents could form part of the factual context and might be admissible at trial, particularly given a possible ambiguity about whether the renunciation applied when the original five-year term ended or when the additional term ended. The trial court will decide admissibility. To keep discovery necessary and proportionate, the order excludes communications in the nature of pre-contractual negotiations that led to the 2016 deed.
Category 4 sought documents relating to the landlord’s legal assistance concerning the 2016 arrangement. Bazsont argued that the deed may have been intended to avoid statutory tenancy rights. The judge refused this request because the pleadings did not raise a claim that the deed, or part of it, was void under section 85 of the Landlord and Tenant (Amendment) Act 1980. He also said he was not satisfied the documents were necessary or proportionate, observing that the deed’s effect, rather than the landlord’s intention or motivation, was generally relevant to a section 85 issue.
The judge invited written submissions on the costs of the appeal if the parties could not agree. Bazsont was given until 14 January 2022 to submit, with the landlord to respond by 28 January 2022. The judgment makes no final determination of the tenancy claim or the counterclaim.