The Court of Appeal has upheld an injunction temporarily restraining a media firm from purchasing a west Dublin site for developing a state-of-the-art film centre without its alleged partners.
Mr Justice Seamus Noonan said Dublin-based Lens Media, whose directors include producer Gary Levinsohn (Saving Private Ryan) and Windmill Lane founder James Morris, failed to establish that any injustice has arisen due the High Court’s injunctive order.
He said the High Court’s Mr Justice Michael Twomey correctly analysed the balance of justice in the case, which is “firmly in favour” of granting the injunction.
The order, to last until the full court dispute resolves, was secured last May by Carlin and Tyrone McKillen’s Plus Development LLC, a real estate firm based in Los Angeles, and Cooper Plus Holdings Limited, a financing vehicle of Los Angeles entrepreneurs Matthew and David Cooper.
Plus Development and Cooper Plus say they and Lens Media agreed to acquire and develop a media park on council lands at Grange Castle Business Park in Clondalkin.
They claimed they have spent about €600,000 on the venture and feared Lens Media would pursue the project with alternative backers. They say the three companies together agreed to acquire and develop 48 acres of land in Clondalkin as a media park.
The case centres on a clause in a memorandum of understanding, entered into by the three firms in June 2020, which the plaintiff companies allege states they “specifically agree that none of them will seek to pursue the project without the others” unless the others voluntarily agree to withdraw.
Plus Development and Cooper Plus say this memorandum continues to be binding and enforceable. Lens Media, which has an address on Adelaide Road, says the failure of the parties to agree a subsequent operating/shareholders’ agreement ended the obligations under the memorandum.
Mr Justice Twomey noted in his ruling last year that the memorandum “specifically does not address” what would occur if there was a failure to later agree operating/shareholder terms. He granted the injunction after concluding there was “at the very least” a fair issue to be tried at a substantive hearing.
In the Court of Appeal ruling on Monday, Mr Justice Noonan said it is “at a minimum arguable” that the memorandum did not simply expire due to the failure to agree operating/shareholder terms.
The court did not agree with Lens Media that the plaintiffs’ claim was frivolous and vexatious.
He said the plaintiffs seek to prevent their exclusion from the project, but they are not attempting to interfere with negotiations to acquire the Clondalkin site from South Dublin County Council.
The plaintiffs do not dispute that they would be required to put up about €2.5 million for a deposit on the contract for the sale of the lands and a further €1.5 million for planning application costs.
It was not disputed that Lens Media is balance sheet insolvent, making it unable to meet any award of damages the plaintiffs might be able to obtain, said the judge.
A suggestion that Lens Media may ultimately be in a position to meet such an award if it is permitted to proceed alone with the project is “highly speculative and falls far short” of establishing a likelihood it will be able to pay damages.
The court, which includes Ms Justice Caroline Costello and Ms Justice Nuala Butler, dismissed the appeal.
