The High Court has refused both sides’ discovery applications in a dispute over a covenant restricting cinema or theatre use at Dublin’s Screen Cinema and neighbouring College House. The court said the requested documents were unnecessary for the fair disposal of the issues between the parties.
Dublin Cinema Group Limited, the former owner and seller of the Screen Cinema, seeks to prevent Balark Trading GP Limited from using the Screen Cinema and College House as a cinema or theatre for 20 years from the sale. The company alleges that such use would breach a restrictive covenant agreed when the property was sold. Balark Investments Limited was the buyer and later transferred its interest in the properties to Balark Trading.
The judgment recounts that Dublin Cinema sought an undertaking after learning of planning permission for redevelopment requiring a 500-seat entertainment venue, and of discussions involving the defendants and Press Up Entertainment Group/Paddy McKillen Junior. Balark disputed that it was bound by the covenant, but undertook not to use the properties as a cinema or theatre. It declined to undertake that the planning permission would not be implemented while an entertainment venue remained a requirement. Balark’s solicitors said no decision had been made on the venue’s use.
Dublin Cinema sought documents about the venue’s design and proposed or intended use, including communications with the defendants’ associates, potential operators, planning bodies and architects. It argued the documents could show an intention to use the properties as a cinema or theatre. The court held that the material issue at the substantive hearing would be the actual use, or the intended use if finalised by then. Past intentions would not resolve that issue. The court also noted that Dublin Cinema could seek confirmation through interrogatories, though it considered that an answer might not settle the parties’ disagreement over what qualifies as cinema or theatre use.
Balark sought documents about the alleged effect on Dublin Cinema’s Savoy Cinema business if the Screen Cinema resumed cinema or theatre operations. The court said that alleged impairment did not currently arise and that such documents would not determine the legal question of whether the covenant binds Balark as successor in title.
The court refused both motions. It did not decide whether the covenant binds Balark or whether use of a 500-seat entertainment venue would breach it. The judgment said that if there were no actual use or finalised intended use by the substantive hearing, Balark’s undertaking might make the injunction sought unnecessary, subject to any later change in circumstances or other reason for an injunction.