High Court of Ireland Decisions

1. The first named Plaintiff (hereinafter referred to as 'Redfont') is a company incorporated within the State with limited liability and having its registered office at 37 Dawson Street, in the City of Dublin. The second named Plaintiff (hereinafter called 'Wrights') is a company incorporated within the State and having its registered office at West Pier, Howth in the County of Dublin. Custom House Docks Management Limited is the company responsible for the management of the International Financial Services Centre in Dublin (hereinafter referred to as 'the IFSC'). The second named Defendant, Hardwicke Property Management Limited, has its registered offices at 14 Wellington Road in the City of Dublin and is a management company retained by the first named Defendant in relation to its property management affairs.

Redfont opened for business in the Autumn of 1994 in the IFSC. It was a fully licensed public house at that time. Thereafter it proceeded to develop a restaurant business and presently 50% of its activities relate to its restaurant business. The company has been extremely successful since it first commenced business and it now proposes to increase its floor space by some 100% at a cost to it of some £1,000,000. When it originally opened in 1994, it was operating its business five days per week but, due to the demand for the services which it provided, it commenced in October 1995 to run its business on a seven day a week basis. From October 1995 until January 1998 the customers of Redfont parked on the public areas within the IFSC. It does not appear that during this period of time there was any complaints from other lessees within the centre or from the Custom House Docks Development Authority (being the owner of certain of the lands situate at the IFSC) of congestion being caused as a result of patrons of Redfont parking on the public areas adjoining its premises. No provision for car parking spaces had been expressly provided for in the lease that had originally been granted by the Custom House Docks Development Authority to the first lessee of the Harbourmaster Pub. However, by a Licence dated the 20 July, 1994 and made by and between the Custom House Docks Development Authority (hereinafter referred to as the Authority) and Redfont, the Authority granted to Redfont permission to use certain parts of the land comprised in the IFSC and outlined in red on a map attached to the Licence, as a temporary car-park for its customers. The terms of the Licence were such that it was clearly envisaged that the temporary car-park would house at least fifty cars of patrons availing of the facilities of the Harbourmaster Pub. The Licence provided that it could be terminated on seven days notice in writing on the part of the licensor and, in fact, the Licence was duly terminated on the 14 December, 1995. The evidence established that the area for which parking was provided, by virtue of the Licence, was an area located in front of what was described as Stack A of the IFSC and was not an area which was readily accessible to the patrons of Redfont and, accordingly, it was not used very often by their patrons.

Wrights carry on business at premises within the IFSC known as "Wrights Fisherman's Wharf Seafood Bistro". The business was started some fourteen months ago at the location in the middle of the IFSC and adjoining the Harbourmaster Bar. The business now employs four chefs and five other staff and is presently extremely successful. Like Redfont, Wrights enjoyed the fact that their patrons could park their cars on the public areas within the IFSC up until January 1998.

THE LEASES AND THE SUB-LEASES

By an Indenture of Lease made the 20 July, 1994 between Custom House Docks Development Authority, Custom House Docks Management Limited and Harbourmaster Pub Limited, the Authority demised to Harbourmaster Pub Limited the demised premises (being the lands described in the first schedule to the lease) for a term of two hundred years commencing on the 20 July, 1994 and terminating on the 19 July, 2194. This is the premises which has been sub-leased to Redfont. Part One of the Second Schedule of the lease provided for certain rights to be granted to the lessee. In particular, at Clause 1, it was provided as follows:-

"There are granted to the tenant the following rights (as rights appurtenant to the demised premises and each any every part thereof):-

1. Right to pass and repass over the Public areas. Subject to the same being formerly opened full free right and liberty (in common with the landlord and all other authorised by the landlord from time to time and all other similarly entitled from time to time for the tenant, its under-tenants, servants, agents and visitors) to pass and repass at all times and for all purposes:-

(a) with or without vehicles over all the roads now or hereafter within the perpetuity period forming part of the public areas and

(b) by foot over all the walkways, malls, squares and other pedestrian areas now or hereafter within the perpetuity period forming part of the public areas;

subject to the right of the landlord to alter or vary such rights provided always that at all times the tenant shall have access for all purposes to the demised premises and provided further that nothing in this lease shall prevent the tenant from using any of the public areas which form part of the demised premises.

'Public areas' are defined in the lease as:-

"All formerly opened areas from time to time within the development area (excluding the units save any part thereof which is agreed to be a public area) including without prejudice to the generality of the foregoing the public walks, malls, roads, bridges, decks, lifts, stairs, staircases, and other similar features provided always that if the landlord shall cause or permit any alterations in the development area which shall in any way reduce, alter or extend the area or location of the public areas or any part thereof then the definition of public areas shall as and where necessary be modified accordingly".

Part Two of the Second Schedule provides at Clause 6 as follows:-

Right to make Rules and Regulations.

The right from time to time to make reasonable rules and regulations and to make additional amendments or revisions thereof where the orderly convenient and proper operation, management and maintenance of the development area as a whole or any part thereof and in particular the public areas.

It is clear from a perusal of Part Two of the Second Schedule that the right to make rules and regulations of the kind set out in Clause 6 are expressly excepted and reserved to the landlord and its management company, its servants and agents. The lease to Harbourmaster Pub Limited to which I have referred above, was a lease which was used commonly by the Authority in relation to most of its lessees within the IFSC. Neither of the Plaintiffs took a lease directly from the Authority. Redfont took a sub-lease from Harbourmaster Pub Limited and Wrights from the original lessee of its premises (Unit 3). Both of them entered into sub-leases which were substantially the same as their head leases. The sub-leases each contained the same right of way as was contained in the head lease; the sub-lease also contained the right in the landlord, the superior landlord and others to make rules and regulations for the orderly convenient and proper operation, management and maintenance of the development area as a whole or any part thereof and in particular the public areas. In addition, the sub-lessees specifically covenanted (at Clause 3.11) not without the consent in writing of the landlord to stand or place or permit or suffer to be placed or deposited outside any part of the demised premises or on any part of the development area or the public areas, any automatic machine, display case, board, vehicle (other than while loading or unloading) or article of any description whatsoever or to solicit for customers or to transact business upon the same, or to obstruct the same in any way whatever but at all times to co-operate in keeping all such areas free and unobstructed.

THE RESTRICTIONS OF THE 21 JANUARY, 1998

On the 21 January, 1998 Dominic Long, an employee of Hardwicke Property Management Limited, issued a memorandum which appears to have been circulated to most of the lessees in the IFSC. That memorandum stated as follows:-

"I refer to last Thursday's meeting of Custom House Docks Management Limited representatives at which I was requested to seek legal advice regarding improved security measures being considered in light of the current political climate.

I enclose for your attention a copy of the subsequent letter to Frys together with their response. In light of Frys comments and in line with the opinion voiced by the majority of attendees at last Thursday's meeting, it is our intention to implement the existing restrictions on parking within the IFSC 24 hours per day, 7 days per week from this Friday the 23 January. To recap, restrictions on parking will be as follows:-

1. Entry will be granted to all vehicles with access to a valid parking space within the IFSC.

2. Access for deliveries and set down purposes will be allowed. These vehicles will require a permit and a strict 30 minute limit will apply.

3. Any vehicles not complying with these procedures may be clamped and will be subject to a £50 fine prior to release.

Please note that with effect from today we have instructed Securiforce to provide a man for at least 8 hours per day, in order to assist with the policing of these procedures. Please also note that the existing procedure at the main entrance allows for known members of staff and/or cars displaying passes to be 'waved through'. This regime has applied in the past in an effort to avoid traffic congestion in this area. We have been requested by one representative to amend the existing procedures to ensure that every single car entering the LFSC is stopped and the driver questioned as to their business. However, we have deferred making these changes until the views of all representatives are known. I would very much appreciate if you would revert to David Cullen in writing by Friday morning at the latest with your views on:-

(a) the extension of current parking restrictions, and

(b) changes to existing checkpoint procedures.

Any queries also be addressed verbally to David by phoning either 8365922 or 087-527318.

Regards

Dominic Long"

Both Mr Heagney (of Redfont) and Mr Wright deposed to the fact that the implementation of the memorandum, the contents of which I have just quoted, was far more severe than in fact its contents might have indicated. Mr Heagney, in particular, says that in the days following the circulation of the memorandum, patrons intent on visiting his establishment were not even allowed access to the IFSC. In particular, Mr Heagney says that on the 26 January, 1999 a person who intended to visit his premises was told by a security man that "there is no parking anywhere in the complex". He himself says that on the 29 January, 1998 and on the 1 February, 1998 he himself was told by a security man that there was no parking within the IFSC; while this latter account of Mr Heagney is hotly disputed by Mr Cullen, Mr Heagney does not resile from what he deposed to.

Mr Dominic Long is a director of Hardwicke. He says that he attended regular management meetings which involved Redfont, Wrights and other tenants within the Centre. He drew attention to the fact that the management company was empowered to introduce rules and regulations under the provisions of the leases with each of the lessees and, in particular, was permitted to introduce the restrictions on parking which came into effect on the 23 January, 1998 by reason of Clause 6 of Part 11 of the second schedule to the lease, which provided for the introduction of rules and regulations where "it was necessary for the orderly convenient and proper operation and management of the public areas of the Irish International Financial Services Centre". Mr Long indicated that as far back as August 1997 he had had discussions with Mr Heagney in relation to possible use of a multi-storey car parking facility which was due to open. He indicated to Mr Heagney that the owners of the multi-storey car-park (Alanis Limited) were prepared to open the car-park at weekends for the purposes of facilitating the Harbourmaster Bar and, indeed, Wrights Restaurant, provided that mutually agreeable terms could be arrived at. Mr David Cullen who is a property manager employed by Hardwicke, recalls the same meeting in August 1997 which was attended by a Mr McCormack from Alanis Limited, Mr Heagney and Mr Long. He recalls Mr Heagney proposing a valet service for patrons of the Harbourmaster Bar and Mr McCormack of Alanis saying that he personally would be interested in the idea. Mr Cullen recalls Mr Heagney suggesting a charge of some 90p per patron for the use of the car-park at night. It was Mr Cullen's recollection that Mr Heagney, after the meeting, was to submit proposals concerning the idea of a valet service but he never did. Mr Heagney agrees that indeed the idea of providing a valet parking service was discussed between him and representatives of the multi storey car-park but he said that a valet parking service required a set down area outside the Harbourmaster Pub and David Cullen had indicated to him that he would not give permission for such a set down area. Mr Long's present position is that the Defendants are willing apparently to make a set down area available to the Plaintiffs to facilitate the valet parking proposal that was first mooted at the August 1997 meeting.

Mr Heagney is adamant that security is not the real reason why the parking restrictions were introduced in January 1998. He says that if security was the real reason, he cannot understand how there is such ready access for cars to other parts of the IFSC and the residential part of the Centre, namely, the Custom House Plaza.

WRIGHT'S COMPLAINT

Mark Wright is a director of the second named Defendant. He specifically recalls Paul Byrne of the first named Defendant promising, prior to their entering into the sub-lease, that there would be no difficulty or problems with parking on the public roadways within the IFSC at night time and that this would be permitted by the Authority. He says that had he not received such an assurance, his company would not have entered into the lease which they entered into. Mr Byrne has no recollection of making any such representation and neither does Mr Brannigan of Jones Lang Wootton who negotiated the sub-lease with the second named Plaintiff. Mr Byrne draws attention to a letter from Messrs William Fry Solicitors to Messrs McCann Fitzgerald (who are acting for Wrights) dated the 30 January, 1996 in the course of which letter William Fry stated:-

"With regard to car parking I reiterate the comments made in my letter of the 24 January. The unit was not marketed with car parking spaces and there are no such spaces available for lease with the unit. The car spaces directly outside the unit may at a future date be marketed for use on a licence basis".

THE PRESENT POSITION

The Plaintiffs complain that the traffic restrictions imposed at the end of January 1998 have had a disastrous effect on their trade: in Wright's case it may be necessary to cease trading; in Redfont's case, custom has significantly diminished since the imposition of the traffic restrictions. Damages, say the Plaintiffs, will not be an adequate remedy. As to the traffic restrictions, there is some controversy as to the current position: there is undoubtedly no parking on Mayor Street permitted: this of course is the road on which both Plaintiffs' premises are accessed from by their patrons. The Defendants say that they are permitting cars to set down passengers at the premises of each of the Plaintiffs and that they are prepared to arrange a set down point if a valet service is arranged with the owners of the multi-storey car-park, (Alanis Limited). The Defendants, however, will not allow the patrons of the Plaintiffs to gain access to the multi-storey car-park other than by going through Mayor Street, Custom House Quay and hence to the multi-storey car-park at Common Street. From the multi-storey car-park at Common Street it is some 200 yards to each of the premises of the Plaintiffs. There is a gate at the Common Street junction with Mayor Street which presently is closed after normal business hours.

THE SUBMISSIONS

The Plaintiffs say they are entitled to interlocutory relief. They say they have a right of way which includes a right to park. That right of way they say is being interfered with by the Defendants to such an extent that if the Court does not restrain the interference, the damage caused will be irremediable. The Plaintiffs say that each of their sub-leases contains an express right of way so widely drawn as to include a right to park cars on the way, providing no obstruction is caused. Even if the Court did not agree that the right of way is sufficiently widely drawn to permit parking, it is argued that such an easement (of parking) is enjoyed by them pursuant to Section 6 of the Conveyancing Act, 1881. The Plaintiffs go further and say that if the express grant to pass and repass does not include the right to park, such should be implied by the words of the grant. Finally, both Plaintiffs say that the Defendants are estopped from denying the right of their patrons to park outside their leased premises. Wrights in particular, contend that they were assured that parking would not be a problem if they entered the sub-lease and that they would not have done so had they known the true position which was to obtain in January 1998.

The Defendants say they have no privity of contract with the Plaintiffs. They submit that the express grant of right of way does not admit of an interpretation allowing the parking of cars on the way over which the right is granted. They submit that Section 6 of the Conveyancing Act, 1881 has no application to circumstances such as the present where there has not been a previous demise of the property and where there have not been prior lessors or lessees of the premises of the Plaintiffs. The Defendants further submit that the wording of the express grant of the right of way in each of the sub-leases is of such clarity that there can be no room for implying into it any right to park cars. The suggestion that any conduct of the Defendants gives rise to an estoppel is vehemently denied by them. The Defendants' case is that under the provisions of the lease (and indeed the sub-leases) they are entitled to manage the IFSC and to make all reasonable and necessary rules to that end: the traffic restrictions of January 1998 were to that end, having regard to security and other considerations. In addition the Defendants point to the fact that in the Clause which grants the express right of way, the landlord is given the express right to "alter or vary the right granted".

THE LEGAL PRINCIPLES

This is an application for interlocutory relief. Whether or not that relief is granted is a matter for the Court's discretion. That discretion is to be guided by the principles laid down by the Supreme Court in Campus Oil Limited and Others v The Minister for Industry and Energy [1983] IR 88: in summary, before granting interlocutory relief, the Court should satisfy itself that the plaintiff has shown that his case is an arguable one, that damages are an inadequate remedy and that the balance of convenience favours the grant of such relief.

The Plaintiffs say that they are possessed of easements which the Defendants are interfering with. The existence of the easements the Plaintiffs contend for and the nature and extent of any interference therewith is at the heart of this case. As Professor Wylie notes in his work on Irish Land Law, Second Edition, at paragraph 6.054, the usual method of expressly granting an easement is by deed. In the present case, the lessee under the head lease and the sub-lessee under the sub-lease is granted an express right of way. Insofar as it relates to vehicular access, the easement in the sub-lease extends to the tenant and his visitors the right "to pass and repass at all times and for all purposes with or without vehicles over all the roads now or hereafter within the perpetuity period forming part of the public areas . . . subject to the right of the landlord and the superior landlord to alter and vary such right". Clause 3.11 at page 38 of the sub-lease prohibits the sub-lessee from placing a vehicle on the public areas without the consent in writing of the landlord. Finally, Clause 6 (page 18) of the lease allows the management company to make rules and regulations for the orderly management and development of the public areas as does Clause 6 (at page 27) of the sub-lease.

Peter Bland in his work on the Law of Easements and Profits A Prendre, Dublin, 1997, notes that it was well established that an easement had four essential characteristics: firstly, there had to be a dominant and a servant tenement; secondly, the easement had to accommodate the dominant tenement; thirdly, the owners of the dominant and servient tenements had to be different persons, and, finally, that a right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant. It is commoncase that the express grant contained in the sub-leases in the instant cases is the grant of an easement possessed of all of the above characteristics. What is in dispute, however, is how the grant should be construed by the Court. Does the right to pass and repass include a right to stop? If the right of way includes an ancillary right to park, does such negate the consent required by Clause 3.11 of the sub-lease? If the right to pass and repass includes a right to stop, then for what period of time can a vehicle stop in a public area over which the right of way exists? If the owner of the easement is a restaurateur or publican (as in the present cases) can vehicles supplying such premises stop, and if so, for how long ? Can visitors intent on taking food and drink in one or other of the premises stop, and if so, for how long? Is the stopping of a vehicle on a public area outside the dominant tenement for the purposes of either unloading, depositing visitors or having a drink or having a meal within the express grant in the sense that the grant of the easement can be argued to be the grant also of such ancillary rights as are reasonably necessary to its exercise or enjoyment?

In Bulstrode v Lambert [1953] 1 WLR 1064, Mr Justice Upjohn held that a right of way included a right to halt vehicles in a yard as often and for so long as might be necessary for the purposes of unloading and loading. The right to halt, load and unload the vehicle was, he opined, necessary for the enjoyment of the right reserved. He said (at page 1071):-

"It is only an incident of the right of way expressly granted and may be described as ancillary to that easement because without that right he cannot substantially enjoy that which has been reserved to him."

Again in McIlraith v Grady [1967] 3 All ER 625 at page 627 Denning MR giving a judgment with which the majority of the Court of Appeal agreed said (at page 627):-

"Every grant must be construed in the light of the circumstances. In that case [Bulstrode v Lambed it was held there was a right to bring goods to the auction mart and by implication a right to halt, to load and unload. So here. There was a narrow passageway leading to a small yard. There was necessarily imported in addition to an actual right to pass and re-pass, also a right to stop for a reasonable time for the purposes of loading and unloading . . . suffice it to say that as a matter of construction the right of way includes a right to stop"

Gale on Easements, 15 Edition, expressed a similar view as Mr Justice Upjohn in the Bullstrode case, saying (at page 45):-

"The grant of an easement is also the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. Where the use of a thing is granted everything is granted by which the grantee may have and enjoy such use"

As to the Courts' function where there is a dispute as to the scope of an express grant of an easement, the learned authors of Gale on Easements, 15th Edition, at page 292 stated:-

"In the case of an express grant the language of the instrument can be referred to. It is for the Courts to construe that language in the light of the circumstances and in the absence of any clear indication of the intention of the parties the maxim that a grant must be construed most strongly against a grantor must be applied In particular in construing a grant the Court will consider

(i) the locus in quo over which the way is been granted,

(ii) the nature of the terminus ad quem, and

(iii) the purpose for which the way is to be used".

It therefore appears that this Court is entitled to look at the language of the grant of the right of way and to consider the fact that in the case of each of the Plaintiffs the grant is given to them as lessees of retail units to which the public resort to drink and cat food on the premises. The Court is also entitled, it seems to me, to have regard to the nature of the land over which the right of way is granted and the user of that land at the date of the respective grants to the Plaintiffs. In particular, the Court is entitled to have regard to the physical dimensions of the way for the purposes of determining whether the particular route can at one and the same time sustain, for example, the parking of vehicles on the way and the passage and re-passage of vehicles over the way: in the judgment of Sir George Jessel MR in Cannon v Villars [1878] 8 Ch D 415 at pages 420, 421 the Master of the Rolls said that:-

"Which it is, a question of construction of the grant, and that construction will of course depend on the circumstances surrounding, so to speak, the execution of the instrument. Now, one of those circumstances, and a very material circumstance, is the nature of the locus in quo over which the right is granted. If we find a right of way granted over a metalled road with pavement on both sides existing at the time of the grant, the presumption would be that it was intended to be used for the purpose for which it was constructed which is obviously the passage not only of foot passengers but of horsemen and carts".

Section 6(1) of the Conveyancing Act, 1881 provides that a conveyance of land shall be deemed to include all easements "appertaining or reputed to appertain to the land or any part thereof". Wylie, at paragraph 6.067 of his work on Irish Land Law, (Second Edition) notes that the section only operates where there has been a diversity of ownership or at least of occupation of the dominant and servient tenements prior to the conveyance: it does not apply, he says, to the creation of rights not already in existence. I respectfully agree with his analysis of the effect of the section, which, in all the circumstances, can have no application to the first leases and sub-leases of the Plaintiffs' premises.

As to the Plaintiffs' contention that it is legally permissible to imply an easement to give effect to the intention of the Plaintiffs and their lessors and that a right to park should be included or implied in the express grant, there is reasonably clear authority for the proposition that, depending upon the circumstances, a Court may well indeed imply an easement to give effect to the intention of the parties. In Pwllbach Colliery Company v Woodrian[1915] AC 634, Lord Justice Parker said at page 646:-

"The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used"

CONCLUSIONS

As this is an application for an interlocutory injunction, the first issue which the Court has to decide is whether the Plaintiffs have raised a fair issue to be tried. I am satisfied that the Plaintiffs have indeed raised a fair issue to be tried and that issue is whether on a true construction of the express grants of rights of way in each of the sub-leases it can be said that there is an ancillary right (which is being interfered with) to park cars because such a right is reasonably necessary to substantially enjoy the rights of way reserved to the Plaintiffs in the sub-leases. Another serious issue established by the Plaintiffs is whether the Defendants by their actions are also interfering with the Plaintiffs' right to pass and re-pass over the public areas in the IFSC. While there is no Irish authority directly bearing on the issue, the English cases of Bulstrode v Lambert [1953] 1 WLR 1064, and McIlraith v Grady [1967] 3 All 625 suggest that where certain "ancillary" rights are necessary for the full enjoyment of a right of way, they can be imported into the grant of the right of way. It is also suggested that a Court, engaged upon a construction of the express grant of an easement, such as a right of way, is entitled to look at the circumstances existing at the date of the grant: in particular, the Court may look at the physical dimensions of a right of way with a view to ascertaining the intended purpose for which the way was to be used. In the present case, each of the demised premises are within the IFSC; the business of one of the Plaintiffs is that of a publican and restaurateur and the business of the other Plaintiff is that of a restaurateur. The premises of each of the Plaintiffs are adjoining an internal road of the IFSC known as Mayor Street. Up to the date of the restrictions imposed on the 23 January, 1998 visitors and staff of each premises had used the facility of parking on Mayor Street. In the case of Redfont, the Harbourmaster Bar commenced to trade on a seven day basis in October 1995 (it had traded on a five day a week basis prior to that time). Thenceforth, until the 23 January, 1998 its patrons parked on the public areas (including Mayor Street) within the IFSC without complaint. As to Wrights, its patrons have, apparently, similarly parked their cars on the public areas over which Wrights have a right of way since they commenced trading in or about December 1996. The parking which I have just described does not appear to have given rise to any traffic congestion or obstruction. Mayor Street is a 'public area' as defined in each of the sub-leases and the right of way of each of the Plaintiffs is over that area and other roads within the IFSC. At the trial of this action the trial judge will be invited to construe the express grants of a right of way and to consider whether there is an ancillary right to park cars on the lands the subject matter of the rights of way. He will construe those grants in the light of such of the foregoing circumstances as existed at the IFSC at the date of the grants.

I am satisfied that while the lessor, its servants or agents has the right to "alter and vary" rights granted expressly by the leases and sub-leases and to make rules and regulations for the efficient and safe operation of the IFSC, they are not entitled to make rules or alter or vary rights the effect of which would in substance be to extinguish such rights expressly granted to the Plaintiffs under their sub-leases. To prohibit parking along Mayor Street is to extinguish the ancillary right to park which the Plaintiffs argue they are entitled too. To prevent patrons of the Plaintiffs from passing and re-passing along Mayor Street is to extinguish the Plaintiffs' right of way; to restrict the times at which such parking may occur or at which the right of way may be otherwise used may or may not be permissible on a true construction of the sub-lease: however, for the present I am satisfied that the Plaintiffs have made out an arguable case, that the Defendants by their introduction of parking and traffic restrictions on the 23 January, 1998 have interfered, in an unlawful and impermissible manner, with the Plaintiffs' right of way and the ancillary rights contended for attaching to the right of way, including the right to park on the way.

Any interference with a person's use and enjoyment of his land is actionable in nuisance; where there has been any disturbance of an easement, the appropriate cause of action is a claim in nuisance: see Paine & Company v St Neots Gas and Coke Comany [1939] 3 All ER 812. That the persons who are alleged to be interfering with the Plaintiffs' easements are not in any contractual relationships with the Plaintiffs matters not: the proper Defendants are those whose actions have diminished the Plaintiffs use and enjoyment of their lands by disturbing their easements.

I have little doubt but that damages would not be an adequate remedy in the present case in respect of each Plaintiff. Equally I believe that the balance of convenience clearly favours the grant of injunctive relief. If the Defendants have security concerns as a result of the grant of the injunctions, then they will have to take such steps that will eliminate those concerns. If those steps cost money, then those monies will have to be expended by the Defendants. If at the trial of this action the Defendants persuade the trial judge that the Plaintiffs ought not to have been granted an injunction at the interlocutory stage, then the Defendants may well look to the Plaintiffs' undertaking as to damages to compensate them for the monies they have had expend between the date of the grant of injunctive relief and the final determination of the action.

Having regard to the conclusions I have reached, I propose to make the following Orders:-

(a) An Interlocutory Injunction restraining the Defendants and each of them, their respective servants and agents from interfering with the right to pass, set down and re-pass over the public areas of the International Financial Services Centre situate at Custom House Dock, Dublin I enjoyed by the Plaintiffs and their respective servants or agents, employees and/or visitors.

(b) An Interlocutory Injunction restraining the Defendants and each of them, their respective servants and agents from interfering with the right to park on the public areas of the International Financial Services Centre, Custom House Dock, Dublin 1 enjoyed by the Plaintiffs and their respective servants or agents, employees and/or visitors.