The High Court made no order for costs after an application by the owner of the Market Bar for an interim injunction over a fire-exit gate at George’s Street Arcade. The injunction application did not proceed to an inter partes hearing. The court also made no order for the costs of the later costs hearing.
Mr Justice Dignam delivered the judgment on 21 September 2022. Mercroft Taverns Limited, trading as the Market Bar, had sought to prevent Layden Properties Georges Street Limited from placing a padlock or other restriction on a gate forming part of an emergency escape route from the bar through the arcade to Drury Street.
A lease granted the bar a right of way through the arcade, including for escape purposes outside business hours. For about 20 years, the parties had followed a protocol under which the bar’s staff padlocked the gate after the bar closed, while the arcade’s staff opened it in the morning. The court did not resolve the parties’ disputed claims about the gate’s operation or the earlier events.
The dispute sharpened in November 2021, when the arcade owner padlocked the gate on two evenings after the bar raised concerns. On 11 November, the bar’s solicitors sought an undertaking that no further restriction would obstruct the escape route. The court noted that the proposed undertaking did not mention the existing protocol or the bar’s willingness to padlock the gate after closing.
The next day, the High Court granted an ex parte interim injunction, with the bar undertaking to lock the gate by 3.30am. The property company gave its own undertaking on 15 November. The bar then gave a written undertaking the following morning, and the interim order was vacated by consent on 16 November. The parties later asked the court to decide costs, with the substantive dispute unlikely to proceed and potentially subject to arbitration under the lease.
Justice Dignam said the bar was not entirely successful in obtaining the undertaking it had sought: its own undertaking to lock the gate was given to the court first, and the property company’s undertaking followed. He also considered the Friday injunction application “precipitous”, noting that the padlock had not been applied the previous evening and the property company had indicated that the gate was then secured as it should be. The bar could, in the short term, have opened with a limit of 450 patrons, the court said, because the route was a third emergency exit required only above that number.
The judge also criticised aspects of the property company’s conduct, including applying the padlock after the bar had raised concerns. Weighing the conduct of both parties, the court made no order for costs of the injunction application. It also declined to list the case for a mention on the injunction motion. Each side had indicated that its undertaking would remain in place; if circumstances changed, the parties could decide whether to apply in court or pursue arbitration. The court made no order for the costs of the costs hearing either.