The Court of Appeal has dismissed the bulk of the “Mr Price” group’s appeal against a ruling it cannot sell certain grocery items from a store in a retail park where Dunnes Stores is the anchor tenant.
The court upheld the High Court’s decision that Dafora Unlimited Co was in breach of its lease at Barrow Valley Retail Park on the Carlow/Laois border by selling certain items from its Mr Price store in the centre.
This was because there is a clause, or restrictive covenant, in the retail park lease that prohibits a competing business from selling goods defined as groceries alongside the anchor tenant, Dunnes.
In his High Court judgment, Mr Justice Mark Sanfey made several declarations and found that “groceries”, as contained in a lease agreement, “extends beyond food or food products” and include “non-durable consumable household items which are purchased frequently”.
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Other items include healthcare products, household and cleaning products, pet care and pet food, bathroom toiletries, hair care products, detergents, washing powder, cleaning products, shampoos, toothbrushes, toothpaste, kitchen towels and toilet rolls.
The judgment was granted in proceedings that Dunnes, and the retail centre landlords, Camgill Property A Sé Ltd, brought against Dafora, trading as “Mr Price Branded Bargains”.
Represented by Martin Hyden SC, Dunnes secured an injunction preventing the Barrow Valley Mr Price outlet from selling certain items.
Dafora had opposed the application and appealed the High Court’s judgment on several grounds including that the lower court had erred in the manner it had interpreted the lease for the appellant’s unit in the park.
It was also argued that the High Court had erred by preferring expert evidence given on behalf of Dunnes, and had granted an injunction in “ambiguous and unclear language” that Dafora was unable to know with certainty what it is prohibited from selling at the unit under the order.
Dunnes opposed the appeal and had rejected all of the appellant’s arguments.
In its ruling, the Court of Appeal - comprising Mr Justice Seamus Noonan, Mr Justice Robert Haughton, and Ms Justice Nuala Butler - dismissed the majority of the grounds raised by Dafora and said it agreed with the High Court’s findings of fact and its reasoning.
Mr Justice Haughton said that “in essence, this appeal concerns the interpretation of the word “groceries” in a restrictive covenant concerning the retail unit at the retail Park occupied by the appellants which prevents them from selling “food, food products or groceries”.
Mr Justice Haughton said the court was satisfied to dismiss the appeal and affirm the orders of the High Court.
However, it was allowing the appeal to the extent that it was amending one of the declarations made by Mr Justice Sanfey.
The declaration that “non-durable consumable household items which are purchased frequently” includes healthcare products; household healthcare products; household and cleaning products; pet care and pet food; bathroom toiletries; hair care products; oral care products and other toiletries; detergents; washing powder; cleaning products and materials; shower gels; deodorants; shampoos; cosmetics; toothbrushes; toothpaste; kitchen towel and toilet rolls.” would have the words “provided that such items are non-durable” added to the end.
This amendment, Mr Justice Haughton added, would bring “greater clarity” and would make it wholly consistent with the High Court’s other declaration that groceries from one of the park’s units at the centre of the action includes non-durable consumable household items which are purchased frequently.
Mr Justice Haughton added that as Dunnes had been “very substantially” but “not entirely successful” in the appeal the court was proposing that the appellants pay 90 per cent of Dunnes’ costs of the appeal.
The costs order is to be finalised at a later date, the judge concluded.
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