High Court orders discovery of documents regarding interpretation of 1985 Conveyance and parking rights dispute.

THE HIGH COURT

[2025] IEHC 598

[2023/3526P]

BETWEEN

NICOLA MURRAY AND DONAL MURRAY

PLAINTIFFS

AND

GOLDSTEIN PROPERTY ICAV

DEFENDANT

JUDGMENT of Ms. Justice Siobhán Stack delivered 3 November, 2025.

Introduction

1. This is an application by the defendant for discovery of certain documents relating to a dispute about the interpretation of a Deed of Conveyance dated 20 September, 1985, made between Sundry Suppliers Ltd one part and Kizba Investments Ltd of the other part (“the 1985 Conveyance”). The plaintiffs and the defendant are the successors-in-title of Sundry Suppliers Ltd and Kizba Investments Ltd, respectively. By virtue of the 1985 Conveyance, the premises known as No. 86A Upper Leeson Street, together with “the right of the [purchaser], its successors, assigns and lessees to four car-parking places in the premises outlined in green on the Map annexed hereto”, were conveyed to the defendant’s predecessor-in-title for an estate in fee simple. The 1985 Conveyance refers to these rights being given to the Vendor, but it is agreed by the plaintiffs and the defendant that this is an error and that this was intended to be a reference to the Purchaser.

2. The area outlined in green on the map annexed to the 1985 Conveyance is marked “parking” and appears to be a relatively large area facing onto Waterloo Lane in Dublin 4.

3. There are some references in the correspondence to the defendant holding under a lease but this has not been clarified and does not appear to be correct. This may be a misunderstanding based on the fact that the property conveyed by the 1985 Conveyance was conveyed in fee simple “subject to and with the benefit of” a Lease made 5 November, 1984, between Sundry Suppliers Limited, of the one part and Professional Video Limited of the other part, whereby the lands subsequently conveyed by the 1985 Conveyance (together with the four parking spaces) were leased to Professional Video Limited for the period of 35 years from

1 July, 1984.

4. Notwithstanding that the defendant is the fee simple owner, it is, in my view, undoubtedly material to a consideration of this discovery application that the parking spaces the subject of these proceedings were in being by 1 July, 1984, and were apparently already being used by the tenant of the premises originally owned and let by the plaintiffs’ predecessorin-title before those premises were sold to the defendant’s predecessor-in-title. As the 1985 Conveyance appears to equate the parking rights being conveyed to those enjoyed by the tenant under the 1984 Lease, I think there is no doubt that this is relevant to the interpretation of the 1985 Conveyance and I return to this issue below.

5. It is not in dispute that the defendant is entitled, on foot of the 1985 Conveyance, to park four cars within the area outlined in green on the map annexed to that Conveyance, an area which faces onto Waterloo Lane. The essential dispute between the parties is that the defendant says that it can park four cars anywhere on the lands outlined in green, whereas the plaintiffs say that the defendant can park four cars on the lands outlined in red on the map annexed to the plenary summons. (There are various references in the pleadings to a map annexed to the Statement of Claim but there is in fact no such map and it is accepted that these are references to the map annexed to the plenary summons). The plaintiffs seek a declaration that the defendant’s parking rights are limited to a right to park four vehicles in the area outlined in red.

6. Discovery is ordered where it is relevant and necessary for resolution of the issues in the proceedings. As the critical issue in the proceedings is the interpretation of the 1985 Conveyance, and as the 1985 Conveyance was not exhibited in the affidavits nor was the map annexed to it annexed to any of the pleadings, production of a copy of the 1985 Conveyance was directed in the course of the motion, in order to understand not only the principal dispute between the parties, but its relationship to the map annexed to the plenary summons. On production of a copy of the 1985 Conveyance, it was readily apparent that the lands outlined in red on the map annexed to the plenary summons constituted a small portion – perhaps about one quarter - of the lands outlined in green on the map annexed to the 1985 Conveyance.

7. The Statement of Claim does not identify the basis upon which the portion of lands outlined in red, and to which it is said the defendant’s parking rights should be confined, was selected, although there is reference elsewhere in the papers to an allegation that the defendant and its predecessors-in-title have always in practice parked within the lands outlined in red. On the defendant’s part, there is also an indirect suggestion – aired directly, it would appear, in the course of a planning application made by the plaintiffs in 2021 – to the fact that if the plaintiffs are strictly confined to the lands outlined in red, they might find it difficult to gain access to and egress from the spaces. It appears that the planning authority was ultimately satisfied that there would be reasonable access to and egress from the spaces but its decision is not in any way binding on the issue of the correct interpretation of the 1985 Conveyance. I assume that the lands outlined in red encompass the spaces as represented to the planning authority as being available to the defendant, but I have no evidence of this.

8. In any event, the central issue at the trial will be the correct interpretation of the 1985 Conveyance, and not the planning documentation. The plaintiffs resist discovery on the basis that the issue turns on the correct interpretation of the 1985 Conveyance and that no discovery is necessary as the 1985 Conveyance falls to be determined on its own terms and not by reference to extrinsic evidence. It seems to follow from this that the plaintiffs assert that the 1985 Conveyance is unambiguous and that the only document required is the 1985 Conveyance itself. They seem to take the view that this disposes of the application for discovery as no documents other than the 1985 Conveyance is required to resolve the substantive issue as to the extent of the defendant’s parking rights. (They do not explain why the defendant has sworn an affidavit of discovery which presumably was done on foot of the plaintiffs’ request for voluntary discovery, indicating that they have previously asserted that documentation other than the 1985 Conveyance is required for the fair disposal of the issues in the case.)

9. Before considering whether the plaintiffs’ current position is correct, I think it is worth noting that, while the defendant agrees that the 1985 Conveyance is unambiguous, it contends for an entirely a different meaning. It argues that if the parties to the 1985 Conveyance had intended the parking rights to be limited to the lands outlined in red, that would have been the area outlined on the map attached to the 1985 Conveyance, rather than the much larger area represented by the lands outlined in green.

10. It is a matter for the trial judge to say which of these positions is correct, or whether indeed the Deed is unambiguous as both parties – albeit to differing effect – appear to contend. For now, the important point is that both parties seem to say the 1985 Conveyance is unambiguous and it is not necessary, therefore, to order the discovery of documents relating to extrinsic evidence, properly so called, as extrinsic evidence is not admissible to interpret a deed the meaning of which is clear: see Wylie and Woods, Irish Conveyancing Law, Bloomsbury Professional, 4th Edition, 2019 at 245.

11. In my view the plaintiffs’ position is too simplistic. The purpose of an application of this kind is to ensure that documents which are necessary for the fair resolution of the issues are disclosed to the other party, and it is by no mean certain that the trial judge will accept that the deed is unambiguous, still less that it the plaintiff’s interpretation will be accepted. That these are realistic possibilities would seem to follow, first of all, from the fact that the parties assert quite different interpretations of the 1985 Conveyance neither of which could be regarded as unstateable at this stage. Secondly, the plaintiffs rely in these proceedings on a map for the purpose of confining the area over which the defendant’s parking rights exist to an area much smaller than that plainly identified in the map attached to the 1985 Conveyance. Both of these factors suggest an uncertainty for which the plaintiffs have not allowed in refusing discovery and in seeking to confine the relevant documentation to the 1985 Conveyance itself.

12. As a result, I do not think it can be ruled out that the 1985 Conveyance, properly interpreted, will be found to be ambiguous. If the trial judge becomes satisfied of that, documents providing extrinsic evidence of intention will be necessary to the resolution of the issues. In my view, this is something which must be borne in mind in determining what discovery (if any) is now appropriate.

13. Furthermore, even if extrinsic evidence itself proves not to be material, it is nevertheless the case that the 1985 Conveyance must be interpreted “in context”: see Point Village Development Ltd (In Receivership) v. Dunnes Stores [2019] IECA 233, where the Court of Appeal (per Whelan J.) stated (at para. 77):- “No contract is concluded in a vacuum. There is always a setting and a context in which it takes place. In a commercial agreement it is material that the Court should have regard to and an understanding of the commercial purpose of the contract and that in turn presupposes an understanding of the background which framed the transaction, its context and the material circumstances which led to its conclusion.”

14. Therefore, the 1985 Conveyance will be interpreted in light of the context in which it was concluded and not just as a single document, isolated from the circumstances in which its contents were agreed and executed. This begs the question of what the relevant context is and whether discovery will help establish what that context was.

15. There were no explicit submissions made on this point but I think it is reasonable to assume that the relevant context undoubtedly includes the grant of the 1984 Lease, just one year previously. It may be that the parking rights were first created in 1984, when that Lease was negotiated, or it may have been that the 1984 Lease was either a renewal of a pre-existing lease - its term is such that it may have been granted on foot of a business equity within the meaning of the Landlord and Tenant (Amendment) Act, 1980, for example - or as a formalisation of a pre-existing informal tenancy during which the user of the spaces by the tenant may or may not have developed with the acquiescence of the landlord or in some other way.

16. In addition, the context in which the 1985 Conveyance falls to be understood will probably require a knowledge of the situation on the ground in 1985, as the physical condition and user of the lands outlined in green may have altered somewhat since the 1984 Lease was granted and the 1985 Conveyance was executed. I stress that I am not deciding what is material to the context at this point, as this is solely for the trial judge. However, it might be relevant, for example, if the lands outlined in green were an open car park at the time with a variety of different people – not just the tenants holding under the 1984 Lease - parking in non-designated spaces. I have no information, let alone evidence, about any of these matters and they are mentioned purely as example of what may prove to constitute relevant context for the interpretation of the Deed.

17. Secondly, although the subsequent acts of the parties cannot change the meaning of the 1985 Conveyance, the course of dealing between the predecessors-in-title of the plaintiffs and defendant may, by their subsequent conduct, have shown a clear understanding of what they believed the 1985 Conveyance to mean. This may be particularly so if they obtained that understanding from the original parties to the 1985 Conveyance. While the subjective intention of the parties does not override the clear provisions of a deed, the mutual understanding of the parties to the 1984 Lease, for example, as to the nature of the rights to be enjoyed by the tenant holding under that 1984 Lease, may be relevant, either as part of the context within which the 1985 Conveyance should be read, or if the 1985 Conveyance is ultimately found to be ambiguous.

18. Bearing those remarks in mind, I now turn to consider the four categories of discovery sought.

The categories of discovery sought

Category 1.

19. The first category of discovery sought is: “all documents evidencing the plaintiffs’ assertion that the defendant is only entitled to park four cars at the four particular car parking spaces [on the lands outlined in red on the map attached to the plenary summons]…”

20. After an exchange of correspondence the detail of which it is not necessary to recite, the plaintiffs suggested that this should be refined and suggested that they would discover “all documents evidencing the plaintiffs’ assertion that the defendant only ever parked four cars at the identified four particular parking spaces at the yard area as indicated on the plan at Schedule 1 appended to the statement of claim”. This appears to be a reference to the four spaces apparently referred to by both sides in correspondence with Dublin City Council in connection with the planning application in 2021. In the course of that application, it seems that the defendant made submissions on the basis that it had four particular spaces, but, again, this is not entirely clear. Furthermore, the circumstances in which those spaces came to be designated and whether this impacts on the correct interpretation of the 1985 Conveyance is not clear at this stage.

21. By way of preliminary comment, neither Category 1 as drafted nor the revised Category

1 suggested by the plaintiffs comply with the Rules of the Superior Courts (Discovery) 2009 which requires that the notice of motion seeking discovery shall “specify the precise categories of documents in respect of which discovery is sought”. That requirement is contained in O.31, r.12, which was first introduced by the Rules of the Superior Courts (No. 2) (Discovery), 1999, r.1, with effect from 3 August, 1999.

22. Regrettably, neither party has identified the categories of documents they are, respectively, seeking and offering. Examples of such categories would be: photographs, correspondence relating to the designation of the spaces or their subsequent user, conveyancing documentation, and so on. It therefore falls to the court to try to suggest the types of documents that might be relevant.

23. It seems to me that the following categories of discovery might throw light on the correct context in which the trial judge will have to interpret the 1985 Conveyance:-

A. All correspondence, memoranda or attendances created in the course of the

conclusion of the agreement for sale between the parties to the 1985 Conveyance, the drafting and execution of the contract underlying same, and the drafting and execution of the 1985 Conveyance itself, together with any objections or requisitions on title and replies thereto, and any pre-contract enquiries which mention parking spaces or parking rights;

B. All correspondence, memoranda and attendances created in the course of the

conclusion of the agreement for lease between the parties to the 1984 Lease recited in the 1985 Conveyance, to the drafting and execution of any contract for that Lease, or the drafting and execution of the 1984 Lease itself, together with the contract for Lease itself, any objections or requisitions on title and replies thereto, and any precontract enquiries which mention parking spaces or parking rights.

C. All maps or photographs not otherwise publicly available which tend to show the layout and condition of the lands outlined in green on the map attached to the 1985 Conveyance, between 1 January, 1984, and 31 December, 1985.

D. All documents recording the location at which the defendant and its predecessorsin-title actually parked the four vehicles the subject of the parking rights conveyed by the 1985 Conveyance from 1 January, 1984, to the date of institution of the within proceedings.

E. All documents recording the location at which the original tenant named in the 1984 Lease recited in the 1985 Conveyance and its successors-in-title actually parked the four vehicles the subject of the parking rights granted by the 1984 Lease.

24. As already alluded to above, there appears to have been some concern about access to and egress from the parking area at the time of the planning application in 2021. The nature of the access to and egress from the lands outlined in green in 1985 may be material to a proper identification of the rights granted by the 1985 Conveyance. However, the nature of that access should become clear from the documents falling within para. 23 A to E above, and it is not necessary to make any further order.

25. It should be noted that the Defendant acquired the parking rights in 2018 from what appears to be a related company. That related company had acquired the parking rights as part of a purchase in 2016 from Promontoria (Aran) Ltd, acting as mortgagee. There had been a previous conveyance from the original purchaser, Kizba, to third parties who had mortgaged the lands to Ulster Bank Ireland Ltd. It seems likely that, on the occasion of each of these conveyances, there would have been reference to the parking rights as part of the investigation of title for the purposes of each transaction.

26. I note that the defendant has made discovery of certain title documents, including the objections and requisitions in title completed at the time of the sale from Promontoria (Aran) Ltd to its predecessor-in-title. Presumably this was requested and agreed on the basis that it would shed some light on the nature of the rights, at least as understood by subsequent purchasers (though whether that is material to the interpretation of the 1985 Conveyance is, as already indicated, a matter for determination at trial).

27. It seems to me that the documentation tending to show that the defendant only ever parked within the lands outlined in red on the map appended to the plenary summons would be something which might be evidenced by enquiries made by various purchasers over the years and this requires disclosure of documentation relating to the plaintiffs’ prior title.

28. I will therefore order discovery of:

F. All documents of title comprising the plaintiffs’ chain of title, and all objections and requisitions on title raised in the course of each sale, together with the replies thereto, the relevant contracts for sale, and any pre-contract inquiries and replies which refer to parking rights or parking spaces.

Category 2.

29. The second category sought is: “All documents relied upon by the plaintiffs’ expert/planning consultant in preparing the updated drawings illustrating, inter alia, suitable access and egress vehicle manoeuvres in respect of parking spaces.”

30. This appears to arise out of the planning application made by the plaintiffs in 2021, in the course of which the defendant expressed concern about his access to the four car park spaces which are apparently contained within the lands outlined in red in the plenary summons. Dublin City Council requested that the plaintiffs submit updated drawings to demonstrate that the defendant would have access to the car spaces and I surmise that the lands outlined in red are those which are indicated on the drawings submitted for the purposes of the planning application as I assume that the plaintiffs have not sought to resile from the parking rights or spaces as indicated in the planning application. As a result, I surmise that the map appended to the plenary summons is derived from the maps prepared in connection with that planning application, though this is not clear.

31. The plaintiffs say that the defendant’s expert can measure the land outlined in red in the plenary summons and gauge for himself or herself the ease of access to and egress from them at any time. That is correct, so far as it goes. However, it does not explain where the map attached to the plenary summons comes from. It is clearly different from the map attached to the 1985 Conveyance. The plaintiffs sue on foot of that map and seek a declaration that the defendant’s parking rights are confined to the lands outlined in red on that map. The basis on which that map was created is quite simply not clear from the pleadings. It is not pleaded that it is derived from the planning drawings in 2021, or from a depiction of the spaces normally used by the defendant and its predecessors-in-title over time. There is simply no clarity about this at all.

32. Under this heading, given that the plaintiffs have come to court on foot of a particular map and asserted that the defendant’s rights are confined to the lands outlined in red on that map, I will also order the following discovery.

G. All documents relied upon by the plaintiffs for its assertion that the defendant’s right to park is confined to the four spaces contained within the lands outlined in red in the map appended to the plenary summons herein, insofar as they do not fall within any other category of discovery ordered.

Category 3.

33. The third category is: “All documents evidencing the plaintiff’s claim that it had a right to prohibit and/or block the defendant from accessing the car parking spaces in 2019 and the basis upon which the plaintiff proclaimed that the defendant’s lease was about to expire.”

34. By way of preliminary remark, the defendant owns in fee simple and it is not clear where this reference to a lease comes from. However, I suspect that someone may have mistakenly read the 1985 Conveyance as assigning the interest under the 1984 Lease. In fact, the 1985 Conveyance is a conveyance subject to and with the benefit of that Lease – that is, subject to the tenant’s right to exclusive possession but with the benefit of the payment of rent and the observance by the tenant of its other covenants. That Lease expired in 2019.

35. So far as the request for discovery is concerned, there is no claim for damages or any relief arising from any dispute between the parties in 2019 in the course of which the defendant was prevented from accessing car parking space. As the events of 2019 are not relied upon in the defence or indeed mentioned anywhere in the pleadings, this category is simply not relevant to the issues in the case.

Category 4.

36. The fourth category sought is : “All documents that the plaintiff intends to rely upon evidencing their claim that the plaintiff is entitled to prevent the defendant from parking in a car parking other than the four parking spaces which it identifies and furthermore that the defendant is only entitled to park in the said four specified parking spaces.”

37. I do not think that this adds anything to category 1 and no further documents will be ordered under this heading.

Conclusion

38. I will therefore make an order directing discovery of the documents at categories A to G as set out above.

39. I will hear the parties as to the time required to make the discovery, the identify of the deponent, and on the issue of costs.