Dunnes secures injunction preventing Mr Price selling food products
Posted on 3rd December 2020 at 20:23
Dunnes Stores has obtained a High Court injunction preventing a rival retailer continuing to sell food products, but not “groceries”, from a unit at a retail park in Carlow.
The injunction applies pending the outcome of the full hearing of proceedings brought by Dunnes against companies trading as Mr Price Branded Bargains.
In a judgment on Thursday, Mr Justice Senan Allen said he would grant an injunction preventing the defendants selling any food products from the Mr Price outlet at the Barrow Valley Retail Park.
However, he refused to make an order preventing Mr Price from selling any product that could be defined as a ‘grocery’ from the store. This was due to uncertainty over what products can be legally defined as ‘groceries’ and the orders sought did not state what products Dunnes claims Mr Price cannot sell in the store.
In seeking the injunction, Dunnes claimed the sale of food products and groceries from a Mr Price store next door to one of its outlets breached a restrictive covenant in lease agreements for units at the retail park at Sleaty Road on the Carlow/Laois border.
The alleged breach resulted in Dunnes Stores Unlimited Company and Camgill Property Ltd, the retail park’s landlord, suing Dafora Unlimited Company and Corajio Unlimited, trading as ‘Mr Price Branded Bargains’. The applicants, represented by Martin Hayden SC, claimed Dafora earlier this year acquired a leasehold for a unit in the park.
Dafora then allowed Corajio trade from the unit under the business name ‘Mr Price Branded Bargains’.
It began to trade from the park in October. It was claimed that Dunnes, as part of an arrangement to be the park’s anchor tenant, had entered into lease agreements with the retail park’s former owners.
Those agreements contained a restrictive covenant preventing any other unit in the park being used as a supermarket, grocery, or discount food outlet. It was claimed, in breach of that covenant, Mr Price commenced selling a variety of food, food products and groceries from its unit in the park.
The defendants opposed the injunction application and argued the orders should not be granted.
Rossa Fanning SC, for the Dafora side, said his clients had, before the hearing, offered undertakings in similar terms to the orders sought and had ceased selling food products from its store pending the outcome of the action.
Counsel also argued the term grocery was too vague and unenforceable.
In his ruling, the judge accepted, in relation to the food products, the applicants had raised a fair issue to be tried, damages would not be an adequate remedy should the injunction be refused and the balance of convenience favoured granting it.
The judge also said food products included confectionery and bottled water. He said both sides had tendered expert evidence in relation to what products should be classified as groceries.
It was unclear legally what could be defined as groceries given the changing nature of what supermarkets offer for sale, he said. No individual item or range of products had been identified by Dunnes as something that could not be sold at the Mr Price store and, if the court granted the order related to groceries, the defendant would not know what it could or could not sell from the retail park which would be unfair.
In those circumstances, he refused to grant an injunction prohibiting Mr Price from selling groceries from the retail park. As neither side had been “entirely successful” , he said the legal costs of the injunction hearing would be paid by the losing side in the full action.
Mr Hayden said his side would seek an early hearing of the full case. He indicated Dunnes may bring another application listing the individual products it claims should not be sold by Mr Price as groceries.
The judge said the courts generally do not wish to revisit matters already ruled on but Dunnes was entitled to bring such a motion if it wished to.
The matter will return before the court in January.
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