High Court of Ireland Decisions

1. The Plaintiff in these proceedings asserts that he is a tenant of certain parts of a commercial premises in Blackrock, Co. Dublin, was initially a tenant to a Mr. McArdle and subsequently to a Mr. O'Reilly. Both of these persons were in turn tenants to Texaco Ireland Limited, the Defendants in these proceedings. In circumstances which are not especially relevant to the issues which now arise, the lease which Mr. O'Reilly held was assigned to the Defendants, Texaco, some time ago. Subsequent to that time Texaco decided to carry out certain renovations to the premises and these renovations have now been carried out. Prior to the take over by Texaco of the premises in question, Mr. O'Reilly, it is alleged, had permitted the premises to become a little run-down and it is common case between the parties that at the same time the car-wash on the premises which had previously been operational had not been in use. Once the renovations had been completed, however, the car-wash became fully operational and requires to be put into full use by Texaco.

2. At this time I do not propose to go into the details concerning the approaches made to Mr. Donnelly by Mr. O'Reilly or by any personnel of Texaco prior to the commencement of these proceedings, as these matters are fully in dispute and must be resolved, if anything material turns on them, in the fullness of time. Nor do I intend at this time to reach any findings of fact on Mr. Donnelly's claim to a tenancy in certain parts of the premises. It is claimed by Texaco and Mr. O'Reilly that the relationship was one of licencor/licensee. These matters will also be dealt with in due course at the hearing of the action.

3. What is claimed here is that there has been an interference by Texaco with the rights claimed by Mr. Donnelly to such an extent that Mr. Donnelly seeks certain interlocutory relief. there is no doubt but that there was, for a short period of time, an interference in that the premises were closed when Mr. Donnelly attended to endeavour to operate his business. But that was dealt with to a substantial extent on the 30th October last when Counsel on behalf of Texaco gave certain undertakings that the premises would remain open during certain hours (or that Mr. Donnelly would have access to them during those hours - the precise wording is not agreed between the parties), and that certain signs and lighting would be replaced on the forecourt.

4. There is a lesser complaint made on behalf of Mr. Donnelly that, while laying telephone cabling, his business was interfered with during one day. However that was a "once off" occurrence and I think it fair to say that Mr. Walsh considered it could have been dealt with amicably if there had been greater communication between the parties. Again nothing turns on that at this stage in the proceedings.

5. I am satisfied that there is a fair issue to be tried and Mr. McCullough on behalf of Texaco has taken a very pragmatic view on the matter, which commends itself to me. As to whether or not the absence of an injunction would result in irreparable harm for Mr. Donnelly, there is no significant material before the Court on this aspect. Certainly if there were no access for Mr. Donnelly there is no doubt but that this would cause irreparable harm and I would not need formal evidence to support that. That being so, is it the position that the presence of Mr. Donnelly and a refusal by the Court to grant an injunction would cause irreparable harm to Texaco? Again I am not asked to find that there would be irreparable harm because of the approach which has been taken by that company, which has put forward a plan to deal with matters between now and the hearing of the action. In either case it is likely that damages would not be an adequate remedy.

6. So, while I would be prepared to hold that Mr. Donnelly is entitled to some relief, a difficulty arises in relation to the form of relief which is sought or which is appropriate to be given. Fundamental to a tenancy arrangement is an exclusive right to occupy certain defined property or areas of a property. In the present case there are three issues which stand between the parties for the purposes of interlocutory relief and which impinge on the form of Order which ought to be made. There are several others but these are the three main areas and I propose to confine my Judgment to these main areas. They are:-

7. As to the first of these, Mr. O'Reilly stated in his evidence that Mr. Donnelly had access to the premises from the time they were opened (at 7.00 a.m.) until time of closing (at 11.00 p.m.). He did, however, say that Mr. Donnelly generally worked from approximately 7.30 a.m. or even later to 6.30/7.30 p.m. Mr. Donnelly in his replying affidavit to Mr. O'Reilly's averments does not deny these allegations by Mr. O'Reilly but repeats his claim to have had "unrestricted access" between 7.00 a.m. and 11.00 p.m. In the plan proposed by Texaco it is suggested that the hours should be from 8.30 a.m. to 6.00 p.m. I am of the view that, for the purposes of interlocutory relief only, Mr. Donnelly should have access to the premises and be entitled to carry on his business during the times from 7.30 a.m. in the morning until 7.00 p.m. in the evening between Mondays and Fridays, and from 10.00 a.m. to 1.00 p.m. on Saturdays and during any emergency which might arise on Sundays or during other hours, but only for emergency purposes, and not for business.

8. On the second issue, namely, the precise area to be occupied by Mr. Donnelly, I take the following view. There is no real barrier or dividing wall between the workshop on the one hand and what is called Bay 2. Mr. O'Reilly says that his employees went freely through Bay 2 to the canteen (at the back of the workshop) and to a store behind the canteen and that Mr. Donnelly's permission was not required or sought. It is also said on behalf of Texaco that Bay 2 is required for the storage of certain materials for the receipt of deliveries to the premises and for the good and efficient management of the business. On the other hand Mr. Donnelly says that he did facilitate Mr. O'Reilly and his employees in passing through Bay 2, but in effect as a matter of common courtsey not for the purposes of conceding that they had any legal rights.

9. Because of the lay out of the premises it is very difficult, without building a wall, to divide the workshop from Bay 2 and what I suspect has happened over the years is that little distinction was drawn between the two areas except when it was necessary for

10. Mr. O'Reilly to have a free area to take deliveries or otherwise, and even perhaps for certain storage. I do not think I should, at an interlocutory stage, come to any definite decision as to the rights or wrongs of Mr. Donnelly's claim to exclusive rights over Bay 2, or as to the rights or wrongs of the suggestion that it may have been shared between Mr. Donnelly and

11. Mr. O'Reilly, because it would be quite impossible to do so at this stage. I propose to permit Mr. Donnelly to have access to Bay 2 with the proviso that Texaco may permit deliveries to take place through Bay 2 if they consider this necessary, and may arrange for certain storage in Bay 2 so long as neither Mr. Donnelly's access to Bay 2 nor Texaco's entitlement to use it for the taking of deliveries and for limited storage, impinge upon the other. I appreciate that this is not an ideal solution to the matter, and that it will require both sides to have regard to what the other party is doing, but I expect both Mr. Donnelly and Texaco to act in a manner which facilitates the other in the short period between now and the hearing of the action.

12. The last matter which is the question of parking is a very vexed one indeed. It is true that Mr. Donnelly does not and cannot lay claim to exclusive rights to part of an undefined parking area, and it is equally true that there does not appear to be any particularly defined area which is designated as being only a parking area, as such. Texaco is entitled, regardless of the rights claimed by Mr. Donnelly, to have their customers utilise the car-wash facility area and to that extent to have full and free and unobstructed access to the car-wash, both from a commercial point of view and also from a safety point of view. The access to the car wash is by driving around the side and the back of the premises in question passing the workshop and the Bay 2 area as one travels. Texaco have, according to their plan, offered two designated car parking bays at the back of the building which is, at the very least, a reasonable start to resolve matters between now and the hearing of the action. What concerns me is whether or not that offer is sufficient car parking for Mr. Donnelly, pending the hearing of the action. I am of the view that Mr. Donnelly's claim that he ought to have facilities for parking ten cars around the side or at the back of the building is unreasonable, and the offer to move cars as and when they might cause an obstruction is not really viable, having regard to the fact that the Court doe s not make Orders which cannot readily be supervised, and it would be quite impossible to supervise such an Order. That is not to say that I am intent on detracting in any way from the offer to co-operate made by Mr. Donnelly, but I must endeavour to make an Order which has some certainty attaching to it. I therefore direct and order that Mr. Donnelly should have facilitates to park four cars as well as his tow truck. Two of the cars are to be parked in the designated bays at the back of the building and the remaining two cars and the tow truck are to be parked close to the side perimeter wall opposite the workshop and Bay 2 in such a manner as not to impede free and clear access by parties wishing to access the car-wash at the far side of the building. In making an Order on this basis, I take into account the fact that there will almost always be one or possibly two cars actually parked in the workshop while being worked on.

13. I will direct that pleadings should now be exchanged between the parties, strictly in accordance with time limits which I propose to fix having heard Counsel. I will allow both parties to have liberty to apply in respect of the Orders which I have made.