Supreme Court of Ireland Decisions

1. This is an appeal from an order of the High Court (Smyth J.) made the 9th of July 2001 whereby a number of interlocutory injunctions were granted relating to the appellant's occupation of portion of St. Helena's Shopping Centre, Finglas in the city of Dublin, the property of the respondent. This court has already determined the appeal by allowing it but ruled that judgments would be given at a later date. It was the unanimous view of the court that the appeal should be allowed and in this judgment I am setting out my reasons for arriving at that conclusion.

2. The factual background to this case is that the respondent on the appeal, Dublin Corporation, purchased St. Helena's Shopping Centre in Finglas from the previous owners Frimley Developments Limited, but following on the closing of the sale the appellant, Mr. Burke, was found to be in purported occupation of portion of the property and was hindering the Corporation's intended development project for housing purposes. The Corporation instituted proceedings by way of plenary summons on the 15th of May, 2001 seeking appropriate injunctions and damages and followed that up by a motion to the High Court for interlocutory injunctions. I think it important to set out in full the interlocutory injunctions granted by the High Court. They read as follows:-

3. In addition, the order of the High Court gave liberty to the plaintiff to take such steps as might be necessary to remove the container in the event of it not being removed by the fixed date. Different considerations apply to the third of the injunctions than apply to the other three and I will, therefore, separate my treatment of them and deal with the third injunction later on in the judgment.

4. The initial case of the Corporation was quite simply put in the grounding affidavit of Bartholomew Courtney, a senior staff officer of the development department of the Corporation. He claimed that the Corporation had acquired vacant possession of the entire site upon completion of the sale. The property was registered land and there was a transfer which was executed and lodged in the Land Registry but registration on foot of it was not yet effected. The kernel of the complaint was set out in paragraph 8 of the affidavit which read as follows:-

5. Mr. Courtney went on to aver that despite requests neither the defendant nor his solicitors had produced any evidence of entitlement to occupy or use any part of the site. That grounding affidavit did not adequately disclose the information available to the Corporation and, particularly, to its law agentrelating to Mr. Burke's claims. Legitimate criticism of this was voiced in the High Court on his behalf but the learned High Court judge took the view that as he was dealing with a motion for an interlocutory injunction and not an ex parte application for an interim injunction he did not have to concern himself with this aspect of the matter. No argument has been made in relation to this ruling in the Supreme Court and I, therefore, do not propose to express any view on it.

6. Prior to the purchase from Frimley a compulsory purchase acquisition had been considered and there was a public inquiry for that purpose. It is clear from the evidence given at that inquiry that Mr. Burke had a shop on the site. He expressed concern and there was concern expressed on his behalf that if the compulsory acquisition went ahead he would be given a tenancy in a shop when the new development was completed. Mr. Burke himself explained in evidence that his family had a shop on the site for eleven years and that he personally had run it for five years. He said that he supported his family including his mother from the shop. The Corporation was, therefore, put on notice of quite lengthy occupation of a shop on the site and the carrying on of business therein by Mr.Burke, and putting it at its very least, the natural assumption must have been that he was a tenant of the predecessor in title. It seems clear, however, from Mr. Courtney's grounding affidavit that the Corporation considered they had vacant possession once they were assured bythe vendor that they had it and, of course, they had got those assurances in the form of replies to requisitions on title. As the law agent for the Corporation would have well known, such assurances and replies to requisitions are not of any assistance to a purchaser if in fact there is a person in occupation and they are even of less assistance if that person has some kind of right or title to occupy. The vendor in this case transferred " as beneficial owner" and, therefore, the Corporation would have the benefit of the covenants as to title implied by the Conveyancing Act, 1881. If they found there was a clog on their title with vacant possession they would, no doubt, have recourse by way of action for damages against the vendor, but all of that is res inter alios acta and this court is not concerned with it. S. 72 of the Registration of Title Act, 1964 sets out the burdens which are without registration to affect registered land. Two of them are relevant to this case. They are at (i) and paragraph (j) and read as follows:-

7. Strictly speaking the title which the Corporation has pending registration is an "unregistered right" and, therefore, in a sense the question of section 72 burdens does not yet arise. But if Mr. Burke has any tenancy on the site it is perfectly clear that the Corporation's unregistered right would be subject to it.

8. It would be most unusual if, not unique, for a court to injunct an alleged tenant from entering the premises of the alleged tenancy in a case where the claim to such tenancy was perfectly stateable and arguable and this would be particularly so where the removal of the alleged tenant from the alleged tenanted property might adversely affect potential rights under the Landlord and Tenant Act, 1980.

9. It is important, therefore, next to consider what the appellant had to say in his replying affidavit. In it he pointed out that Unit 7 in the Shopping Centre which was the site referred to in Mr. Courtney's affidavit was also the subject matter of related proceedings in which Mr.Burke was plaintiff and the Corporation defendant. He said that in those proceedings he had clearly set out that he was a tenant in the property known as Unit 7, that he had carried on business there as a general store for upwards of seven years and that he had always paid rent in the sum of£260 per month to his landlord, Frimley Developments Limited, as it fell due and that, furthermore, he had paid rates to Dublin Corporation which were collected from week to week. In paragraph 3 of the affidavit he says the following:-

10. He then refers to a letter from his solicitors dated the 13th of February, 2001 which is from Michael J. Staines and Co., solicitors for Mr. Burke and addressed to Mr. Courtney of Dublin Corporation. That letter reads as follows:-

11. From the evidence given at the inquiry supplemented by that letter in particular it should have been perfectly clear to the Corporation that Mr. Burke was claiming a tenancy and that if the facts, as set out in the letter, were even close to the truth he almost certainly did have a tenancy. There are other parts of Mr. Burke's affidavit to which I will be referring later but at this stage I would move to the replying affidavit of Mr. Courtney, sworn the 4th of July, 2001. On the title issue Mr. Courtney essentially makes the case in that affidavit that there is no written evidence of a tenancy. In reply to a letter for particulars sent by the law agent of the Corporation and dated the 27th of June 2001, Michael J. Staines and Company in a letter of the 6th of July, 2001, set out further particulars relating to the tenancy. Neither this letter nor the contents thereof appear to have been incorporated in an affidavit but for the purposes of considering whether interlocutory injunctions should be granted it is of relevance in indicating the more precise nature of Mr. Burke's claim. It is not necessary to set out the letter for particulars in full. It is essentially looking for particulars of the alleged tenancy and any documentary proof thereof, but I think it worthwhile to set out in full the reply of the 6th of July, 2001. This reads as follows:-

12. If the facts as set out in that letter prove correct it would seem likely that Mr. Burke would be held to have been a tenant from month to month of the unit which he occupied. If so, it is not suggested that that tenancy has ever been terminated. As long as it has not been terminated and assuming that the tenancy exists, Mr. Burke is entitled to occupy the unit in whatever form he wishes and irrespective of whether Landlord and Tenant Act rights would arise or not upon termination by notice to quit. But given the possibility of rights under the Landlord and Tenant Act, there can be no doubt, in my view, that if the position is to be viewed on the basis of balance of convenience, the balance of convenience can only be in favour of refusing an injunction in so far at least as it relates to the unit the subject matter of the alleged tenancy. It would be extremely speculative and difficult to assess damages and given that asolid property right might effectively be lost on foot of an interlocutory injunction I would not consider that damages could be an adequate remedy. But even before one comes to consider the balance of convenience, I am extremely doubtful that there would even be a prima facie case for an injunction where a defendant with some back-up evidence (if ultimately accepted) is alleging an actual tenancy in the premises and the plaintiff is for all practical purposes merely sceptical of the truth of the allegation.

13. There is still another important matter to be considered. I mentioned at an earlier stage of this judgment that I was initially going to deal only with the first, second and fourth injunctions granted by the High Court and leave over the question of the third injunction. It follows that the views I have expressed so far relate to those three injunctions. I now turn to the third injunction and to explaining why it is in a different position. In order to do so, I intend to goback to other parts of the affidavit of Mr. Burke. In particular I would refer to paragraph 6 which reads as follows:-

14. Mr. Burke goes on to describe in the affidavit how following on the transfer to the Corporation a number of Corporation workers called to his shop premises and drilled holes in the roof allowing the rain to penetrate and thereby making it impossible for him to trade from that premises. He then goes on toadmit that he climbed on the roof of the container which he had brought in in an effort to save the shop. Mr. Courtney has disputed the facts in so far as they relate to him in the replying affidavit. Even on the appellant's own case, however, what emerges is that Mr. Burke, by necessity, had to bring in a container and place that container on territory which was not part of his alleged " take" and trade from there. He claims that he did this with the permission of Mr. Courtney which is denied. But if all the facts as alleged by Mr. Burke prove to be true, questions would arise as to the nature of the interest which Mr. Burke had in the territory covered by the container and above all the occupation of the territory covered by the container could, on the peculiar facts of this case, prove relevant on the landlord and tenant application, if there was one. At this stage Mr.Burke on his own case has made out a prima facie right to remain for the time being at least in the area covered by the container, and it would be wrong for this court to consider any further what the legal position might ultimately be. But it seems obvious that it is highly desirable that the status quo be retained pending the hearing of the action and, therefore, the third injunction ought not to have been granted notwithstanding that it related to territory which strictly speaking is outside of the original alleged tenancy " take". These are my reasons for favouring the allowing of the appeal in full.