The High Court has ordered Foot Locker Retail Ireland Limited to disclose records of its decision to close all its Irish stores in March 2020, in a dispute over rent for its Grafton Street shop in Dublin.
In a judgment delivered on 26 March 2021, Mr Justice Brian O’Moore ruled on four categories of documents sought by landlord Percy Nominees Limited. The action concerns Foot Locker’s claim that the lease was frustrated by the effects of Covid-19 restrictions. The retailer seeks a declaration that it had no rent liability from 24 March 2020 onwards, or for part of that period. Percy denies much of the claim.
For Category 4, Foot Locker had offered records about the closure decision for the Grafton Street store alone. The judge ordered disclosure of records of the decision-making process and reasons for closing all its Irish stores. He said the issue was relevant because Foot Locker had pleaded that it closed all stores and explained why. Percy could not realistically be expected to contest that claim without the records, he said. Foot Locker’s evidence that an Ireland-wide search could be burdensome was not detailed enough to establish that disclosure would be disproportionate or oppressive.
The judge limited Category 5 to records of rent payments for the Grafton Street premises. Percy had sought leases, rent records and landlord correspondence for all Foot Locker stores in Ireland. O’Moore said the circumstances of the other stores were of marginal, if any, relevance to the claim about the commercial operation of the Grafton Street shop. He also took account of the likelihood that records for other stores would contain information confidential to their landlords.
For Category 6, the court ordered disclosure in Foot Locker’s proposed form: records of its trade, including online trade, from the Grafton Street premises, and its revenue from those premises, from 1 January 2019 onwards. The judge rejected Percy’s arguments for Ireland-wide financial records, saying the action did not put Foot Locker’s entire financial position in issue.
The court declined to order Category 9 as originally sought, but required a narrower category covering documents recording or evidencing the commercial impossibility of operating the Grafton Street premises from 24 March 2020 onwards. The judge said relevant meeting notes or executive emails might otherwise fall outside the other categories.
The motion was listed to return on 13 April 2021 to address the time for making discovery, costs and any further matters. The judgment did not decide whether the lease was frustrated or whether rent was due; it addressed discovery only.