High Court Restricts Discovery

PUBLISHED: 1st April 2021

Photo to illustrate article https://www.lkshields.ie/images/uploads/news/Web_-_Frustration.png.

Dispute between Foot Locker and Grafton Street Landlord.

Foot Locker Retail Ireland Ltd. v Percy Nominees Ltd. [2021] IEHC 211

Many will be aware of the ongoing High Court dispute between Foot Locker and the landlord of its shop on Grafton Street, Percy Nominees Ltd. (Percy).  Last year, Foot Locker issued proceedings against Percy claiming frustration of the lease on their Grafton Street Store. 

In its Statement of Claim, Foot Locker argues that Government measures put in place due to the COVID-19 pandemic have led to “an unprecedented and dramatic collapse in the pre-existing level of footfall in Grafton Street”.  Foot Locker claims that the enforcement of a lease in a currently abandoned shopping area such as Grafton Street is a “commercial impossibility”.

On 26 March 2021, Mr Justice O’Moore delivered an interim judgment regarding Percy’s request for discovery against Foot Locker.  Percy was seeking discovery of data and correspondence between Foot Locker and the landlords of all of its shops in Ireland. There are six other Irish stores in addition to the Grafton Street premises.  Percy also sought documents evidencing the volume of trade, revenue, and accounts in relation to all seven Irish shops. 

The Court, however, was of the view that “while Percy may well like to make a point that other leases have not been stated by Foot Locker to have been frustrated, the chances are that these other arrangements have features that distinguish them from the Grafton Street operation”.  The Court, therefore, limited the discovery of this documentation to the Grafton Street shop only.

This is an interesting point and one that will likely be relied upon by other retail chains that find themselves running into such issues with their landlords.  Each and every lease will be considered separately, and the outcome regarding one lease may be very different to the outcome for another lease involving the same store in a different location.

Link to the judgment.

For more information please contact Jill Callanan at jcallanan@lkshields.ie, Clare Dowling at cdowling@lkshields.ie or Ciara Smyth at csmyth@lkshields.ie of our Litigation Department.

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