The Court of Appeal has largely dismissed an appeal by two companies behind Mr. Price Branded Bargains over a lease restriction on selling “food, food products or groceries” at Barrow Valley Retail Park in Carlow. It varied the High Court order to clarify that listed product categories are covered only where the items are non-durable.
The dispute arose after Corajio Unlimited Company began trading from Unit 4 in October 2020. Dunnes Stores Unlimited Company and Camgill Property A Sé Limited alleged that products sold there breached restrictions in the lease. The High Court found that “groceries” extended beyond food and food products to include frequently purchased, non-durable household consumables, and granted an injunction and declarations. The appeal concerned the meaning and scope of that restriction.
In a judgment delivered on 16 February 2024, Mr Justice Robert Haughton said he agreed with the trial judge’s reasoning and would dismiss the appeal, subject to one change. The Court of Appeal held that the lease had to be read in context, including the related leases that required restrictions intended to protect Dunnes Stores as the retail park’s anchor tenant. It upheld the finding that “groceries” in this lease included non-food items and rejected the appellants’ arguments that the term should be confined to food-related goods or treated as too uncertain to enforce.
The appellate court also upheld the trial judge’s preference for evidence from the respondents’ retail and economics experts over the evidence of the appellants’ retail expert. It said the trial judge had given reasons for that assessment and was entitled to weigh the witnesses’ evidence.
The court accepted, however, that the High Court’s list could be read to cover durable goods—for example, some pet-care, hair-care or oral-care products—that did not fit the stated definition of frequently purchased, non-durable household consumables. It directed that the words “provided that such items are non-durable” be added at the end of the third declaration.
The resulting injunction continues to prohibit the second named defendant, in its capacity as successor to the Unit 4 leasehold and as an occupier or trader, from offering or selling food, food products or groceries in breach of the lease restriction. The declarations define groceries as including “non-durable consumable household items which are purchased frequently” and specify product categories subject to the new durability qualification. The appeal was otherwise dismissed. The court proposed that the appellants pay 90% of the respondents’ appeal costs, subject to adjudication if the parties do not agree; a short costs hearing was to be arranged unless the parties notified the court of an agreed order.