The High Court has refused an application by Instant Upright Limited to dismiss all or parts of a claim brought by its landlord, Airscape Limited. Mr Justice Denis McDonald held that it was not sufficiently clear at this stage that the claims were bound to fail. The ruling does not decide whether the allegations are true or whether Airscape will ultimately succeed.
The dispute concerns an industrial unit in Park West Industrial Park, Dublin 12, which Airscape leased to Instant Upright. A snowstorm in March 2018 damaged the premises and caused the roof to collapse. Instant Upright moved its manufacturing operations to Citywest. Airscape says it understood that move to be temporary and carried out reinstatement works on the basis that the tenant would return. Instant Upright disputed that the works adequately restored the premises. It later served notice terminating the lease.
Airscape’s plenary proceedings claim unpaid rent and other sums, damages for breach of contract and wrongful termination, and damages for alleged misrepresentation. It also claims that some insurance proceeds received by Instant Upright should be held for Airscape or repaid. Those are claims and allegations, not findings by the court.
Airscape had first brought summary proceedings for unpaid rent. It later discontinued those proceedings on the same day it delivered its statement of claim in the plenary case. Instant Upright argued that the parallel proceedings were an abuse of process. The judge rejected that ground: the summary proceedings had not been decided, and most of the claims in the plenary case could not have been pursued in the summary proceedings. He also noted that the discontinuance meant the defendant would not have to face two ongoing proceedings, with costs in the discontinued case recoverable under the applicable rules.
Instant Upright also sought to strike out the fraud and misrepresentation claims and the insurance-related claims as bound to fail. The judge said the alleged representations about a temporary move and a return to Park West, together with the Citywest lease and later correspondence, left issues that could require discovery and examination at trial. He did not find that a misrepresentation had occurred. He also considered it possible, on the material then before him, that Airscape could establish loss, while stressing that it might fail to do so at trial.
On insurance, the judge found that the policy material before him included property damage cover, contrary to the defendant’s description of it as business interruption insurance only. The insurance claim documents were not before the court. He therefore could not rule out a claim relating to repair costs, but made no finding that any proceeds were due to Airscape.
The court refused to dismiss the proceedings or any part of them on either ground. Its provisional view was that Airscape should receive the costs of this application, stayed pending the final determination of the proceedings; the judgment provided for a further costs process if either party objected within 14 days.