Supreme Court allows appeal against High Court injunctions restraining occupant from container site pending trial.

Murphy J.

Geoghegan J.

Fennelly J.

189/01

THE SUPREME COURT

BETWEEN/

THE RIGHT HONOURABLE THE LORD MAYOR ALDERMEN AND BURGESSES OF DUBLIN

Plaintiff/Respondent

and

THOMAS BURKE

Defendant/Appellant

JUDGMENT of Mr. Justice Geoghegan delivered the 9th day of October 2001

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.

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:-

1. That the defendant, his servants or agents do on or before 2.00 p.m. on Friday the 13th day of July, 2001 remove

himself and his property from the site formerly known as St. Helena's Shopping Centre, Finglas in the city of Dublin being

the property more particularly described in the Schedule to the General Endorsement of Claim in the plenary summons.

2. That the defendant, his servants or agents be restrained until after the trial of this action or until further order of this

court from entering upon or occupying the said site.

3. That the defendant, his servants or agents be restrained until after the trial of this action or until further order of this

court from occupying or otherwise using for any purpose whatsoever a container which the defendant has placed upon

the said site on its northern boundary (the defendant to be allowed until 6.00 p.m. on Friday the 13th day of July, 2001

to remove his stock from the said container).

4. That the defendant, his servants or agents be restrained until after the trial of this action or until further order of this

court from obstructing or in any other way interfering with building and other works carried out by the plaintiff on the said

site.

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.

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:-

"On or about the 5th day of April, 2001, contractors employed by the Corporation moved on to the site in order to

secure it by the erection of a palisade fence and to demolish the old shopping centre. The contractors were

unsuccessful in carrying out their work in so far as they were confronted by the defendant who climbed on to the roof

of a unit from which he appears to have previously traded thereby making it unsafe and dangerous for the Corporation's

contractors to complete its work.

It would appear that the defendant has also brought on site and located adjacent to the said unit a freight container

from which he is currently trading without the consent or authority of the plaintiff."

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 agent relating 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.

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 by the 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:-

"(i) Tenancies created for any term not exceeding twenty-one years or for any less estate or interest, in cases where

there is an occupation under such tenancies;

(j) the rights of every person in actual occupation of the land or in receipt of the rents and profits thereof, save where

upon inquiry made of such person, the rights are not disclosed;"

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.

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.

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:-

"I say that my lease with my landlord Frimley Developments Limited was never terminated by court order or otherwise.

I further say that since the issuing of these proceedings the Corporation has refused to accept my rent and more

recently my rates have not been collected; but my solicitor has indicated to them that he holds the same in trust on

my behalf."

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:-

"Your letter dated the 2nd inst. to Mr. Burke has been referred to us for our attention. As you are aware, Mr. Burke is

the occupier of the shop premises at Unit 7, St. Helena's Shopping Centre. Mr. Burke took over the leasehold interest in

the premises a number of years ago and has held the tenancy for in excess of five years. At all times Mr. Burke dealt

with a Mr. Raymond Stokes and a Mr. Martin Egan who acted on behalf of the landlord, Frimley Developments Limited.

Mr. Burke signed a written lease and paid rent of £260 per month directly to a bank account for the benefit of Frimley

Developments Limited. The lease is extant and has not been terminated by court order or otherwise.

Since in or about March of 2000 Mr. Burke began to experience difficulty with his shop premises. The locks and doors of

his premises were damaged; they were welded together, the premises were set alight destroying all of the stock; a

window was forced open and concrete poured inside so as to make it impossible to trade. Mr. Burke was forced to

purchase a container in order to carry on business from outside his shop premises. The various incidents were reported

to the gardaí in Finglas and the investigation is ongoing.

Following the conveyance of the shopping centre to Dublin Corporation in November last a number of Corporation

workers called to our client's shop premises and drilled holes in the roof with the deliberate intention of making it

impossible for him to trade. Mr. Burke continues to pay rates to Dublin Corporation on a weekly basis. We hereby call

upon the Corporation to enter into arrangements with Mr. Burke to accept the rent of £260 per month. In the event of

the Corporation failing to put forward proposals for acceptance of rent this office shall hold the rent of £260 per month

on trust for our client pending instructions as to where to pay the rent.

It is clear from our instructions that Dublin Corporation is in breach of our client's rights as a tenant in the shop

premises. As a consequence of the action of the Corporation our client has suffered and continues to suffer loss,

damage and expense by way of full use and benefit of the premises and loss of profits continuing by reason of having to

trade elsewhere.

Please note that should we fail to hear from you within fourteen days of the date hereof with your proposals to

compensate our client we have strict instructions to institute proceedings without further notice to you.

We await hearing from you.

Yours faithfully,".

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:-

"Re: The High Court

Record No. 7114P/2001

Dublin Corporation v. Thomas Burke

Injunction for hearing 9th of July 2001

Dear Sirs

We refer to the above mentioned matter and in particular your correspondence of the 27th ult. Please find following

replies to your particulars:

1. In or about April 1990 the defendant took over the business premises the subject matter of these proceedings, from

his brother Brian Burke. The landlord at that time was McMullan and Gillen Limited. In or about the month of July 1990

following a verbal agreement with McMullan and Gillen Limited the tenancy in the said business premises was formally

transferred to the defendant. McMullan and Gillen Limited were the predecessors in title of Frimley Developments Limited

who subsequently sold the premises to Dublin Corporation. In or about November 1996 the premises was sold by

McMullan and Gillen Limited to Frimley Developments Limited. Martin Egan and Raymond Stokes on behalf of Frimley

Developments Limited in or about November 1996 entered into a formal written agreement in respect of the said shop

premises with the defendant. The said agreement was made between the defendant and Frimley Developments Limited.

The rent agreed was £260 per calendar month in respect of the shop premises known as 4 St. Helena's Drive, Finglas.

2. As set out above the tenancy was reduced to writing in November 1996 and the defendant's copy of this agreement

was subsequently destroyed in the fire which is described at paragraph 6 of the defendant's affidavit sworn on the 15th

day of June 2001.

3. The parties to the tenancy were Frimley Developments Limited and Thomas Burke, the property the subject matter

of the tenancy was 4 St. Helena's Drive, Finglas, the period of the tenancy was one year and a verbal renewal

thereafter, the rent was £260 per calendar month and the tenancy commenced in April 1990 and was subsequently

reduced to writing in November 1996.

4. As set out above the tenancy agreement was destroyed in the fire. The only other documents in the defendant's

possession are in relation to payment of rent. Rent was paid from July 1990 into a bank account with Allied Irish Bank in

Finglas, Account No. 31343523, Account name McMullan and Gillen Limited until November 1996. From November 1996

rent was paid by lodgment of funds into Frimley Developments Limited bank account with Bank of Ireland, Dunshaughlin,

Co. Meath. Subsequently, the arrangement for the payment of rent was changed at the request of Frimley

Developments Limited and was paid directly by the defendant to the agents of Frimley Developments Limited who called

to 4 St. Helena's Drive, Finglas and collected each monthly payment when a receipt was handed to the defendant for

each payment. The defendant has some record of these payments but these records are not complete, such records as

the defendant has managed to gather as of the date hereof covering the period January 1998 to May 1999 are enclosed

herewith. The rent was paid up to and including December 1999. Thereafter Frimley Developments Limited ceased calling

to collect rent. In due course an application will be made for third party discovery of the bank accounts of McMullan and

Gillen Limited and Frimley Developments Limited to show these payments.

5. As set out above the tenancy was reduced to writing in November 1996 and was subsequently destroyed in the fire

described at paragraph 6 of the defendant's affidavit sworn on the 15th day of June 2001.

6. At the time of Thomas Burke's evidence to the public inquiry he was as the plaintiff well knew, a tenant of Frimley

Developments Limited and his statement referred to the position he would hope to have in any new development

proposed by Dublin Corporation.

Yours faithfully".

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 a solid 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.

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 go back to other parts of the affidavit

of Mr. Burke. In particular I would refer to paragraph 6 which reads as follows:-

"I say that prior to and after the purchase of the said lands by Dublin Corporation I suffered very great disruption and

distress in the course of running my business. On or about the 26th of March 2000 I was locked out of the premises by

my former landlord, Mark Egan of Frimley Developments Limited when the locks were welded up. I broke the locks and

moved back in to continue trading. Then my premises were destroyed by fire on the 26th of October 2000 and my stock

was destroyed. I cleared up the premises as best I could and bought fresh stock to continue trading. Thereafter, the

windows of my shop were forced open and concrete poured into the premises to stop me trading. I could not use the

premises and so I bought one large container and placed it directly outside my premises and continued to trade there

out of necessity. My container was then stolen but later recovered by the gardaí and located in the City Pound and the

gardaí helped me to recover it. The foregoing matters are currently being investigated by the gardaí at Finglas Garda

Station. I say that Mr. Bartholomew Courtney was always aware of the trouble I was having as set out herein and he

agreed to my placing the said container and using it to trade directly in front of my burned out shop until the shop was

refurbished...."

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 to admit 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.