[ad_1]
Dunnes Stores obtained a Supreme Court injunction preventing a rival retailer from continuing to sell food products, but not groceries, in a unit in a retail park pending the outcome of the full hearing.
Judge Senan Allen said today that he is pleased to grant the court order preventing Price from selling any food products at his point of sale in Barrow Valley Retail Park, Carlow.
However, the judge was not satisfied with issuing an order preventing a point of sale under the brand name ‘Mr Price’ from selling any product that could be defined as a ‘supermarket’ in the store.
This was because there was uncertainty about which products could be legally defined as “groceries” and the requested orders did not indicate which products, according to Dunnes, Mr. Price cannot sell in his store.
When requesting the court order, Dunnes Stores claimed the sale of food and grocery products, from a Mr Price store next to one of its points of sale, violates a restrictive agreement contained in the lease contracts of units in the retail park, located on Sleaty Road in Carlow / Laois Border.
The alleged breach resulted in Dunnes Stores Unlimited Company and Camgill Property Ltd, which is the owner of the retail park, suing Dafora Unlimited Company and Corajio Unlimited Trading as ‘Mr Price Branded Bargains’.
The plaintiffs, represented by Martin Hayden SC, claimed that earlier this year Dafora acquired the lease of a unit in the park.
Dafora then allowed Corajio to trade from the unit under the trade name ‘Mr Price Branded Bargains’. which began trading in the park in October.
It was claimed that Dunnes entered, as part of an agreement to be the park’s primary tenant, into leases with the former owners of the commercial park.
Those leases contained a restrictive covenant that prevented any other unit in the park from being used as a supermarket, grocery store, or discount food store.
It was alleged that, in violation of that agreement, Mr. Price began selling a variety of food and grocery products and groceries from his unit in the park.
The defendants opposed the request for precautionary measure and that the requested orders should not be granted.
Rossa Fanning SC said that its client prior to the hearing had offered commitments on similar terms to the requested orders and had stopped selling food products in its store pending the outcome of the action.
The lawyer also claimed that the term groceries was too vague and inapplicable.
In his judgment, the judge accepted that in relation to food products the plaintiffs had raised a fair issue for judgment, that damages would not be an appropriate remedy for Dunnes, and that the balance of convenience favored the granting of the court order.
For the sake of clarity, the judge said this also included items that included candy and bottled water.
He said that during the hearing both parties had presented expert evidence regarding which products should be classified as edible.
It was not legally clear what could be defined as groceries given the changing nature of what supermarkets offer for sale.
The plaintiffs had not identified any individual item or range of products in their action as something that could not be sold in Mr. Price’s private store.
If the court granted the order requested by the plaintiffs, it would not know what it could or could not sell in the commercial park, which the judge said would be unfair.
In those circumstances, the court was not prepared to grant a court order prohibiting Mr. Price from selling groceries in the retail park.
The judge said that since neither party had been “totally successful,” it was paying the legal costs of the court proceeding costs in the case, meaning that the party who wins the full action will receive the legal costs paid by the party. loser.
Following the court’s decision, Mr. Hayden said his side would seek an early hearing of the full trial of the action.
Counsel also indicated that Dunnes could file another motion listing the individual products that he claims Mr. Price should not sell as groceries.
In response, the judge said the courts generally do not want to re-examine the issues already resolved, but added that Dunnes has the right to file such a motion if he wishes.
The matter will return to court in January.
[ad_2]