The High Court has found that a lease covenant at Barrow Valley Retail Park in Carlow barred Mr Price from selling frequently purchased, non-durable household items as well as food and food products. The court held that Mr Price was not a supermarket or another listed type of food retailer, and was not similar to those premises under the covenant.
The judgment, delivered by Mr Justice Mark Sanfey on 3 June 2022, followed a five-day hearing on liability. Dunnes Stores Unlimited Company and Camgill Property A Sé Limited had sued Dafora Unlimited Company and Corajio Unlimited Company, which trades as Mr Price Branded Bargains. The dispute concerned a unit next door to Dunnes Stores’ units at the retail park.
A 2007 lease for the unit prohibited its use as specified food retailers and prohibited the sale or display of “food, food products or groceries”. Dunnes argued that “groceries” included non-food items such as cleaning products, toiletries and household supplies. The defendants argued the word meant food and food products, and that the covenant was too unclear to enforce against other goods.
The court concluded that, in this lease, “groceries” extended beyond food. It accepted evidence from the plaintiffs’ experts that the term included non-durable consumable items that must be repurchased frequently. The judge said the covenant’s purpose, known to the parties, was to protect Dunnes from competition in its core trading activities. The court rejected the plaintiffs’ request to use Kantar product lists to define the term, finding the evidence about how those lists were compiled inadequate for that purpose.
The court’s finding did not settle the final form of the orders. It said the proposed wording would include the categories listed in the plaintiffs’ claim and that removing the relevant items would comply with the covenant. But the judgment recognised that borderline items could be difficult to classify and encouraged the parties to reach a business agreement about any remaining uncertainty.
The court gave the parties 14 days to agree appropriate orders, including costs, or file written submissions of up to 2,000 words. Because the hearing addressed liability only, it also asked them to say what further orders were needed to progress any quantum issues. The judgment did not set an amount or make a final award on those issues.