The Supreme Court has found Dunnes Stores was premature in legally challenging an effort to resolve an issue over the progressing of the Point Village development in Dublin’s docklands.

A five-judge court unanimously dismissed an appeal by Dunnes against a 2018 Court of Appeal (CoA) decision halting Dunnes’ challenge until an independent expert had give a decision on the issue.

While the CoA found the Dunnes proceedings to be “entirely without merit”, the Supreme Court disagreed with the CoA that they were an abuse of process and should be struck out.

Clause

Dunnes claimed Point Village Development (PVD) had, in its construction of Point Square in the Point Village, failed to comply with a clause of a 2008 agreement regarding the quality and standing of the square in the development.

On that basis, Dunnes refused to release a €3 million sum payable to PVD on completion of the square.

Dunnes argued the agreement meant the Point Square would be of a prestigious standard similar to Eyre Square in Galway, the Civic Plaza at Dundrum Town Centre, or the Grand Canal Dock just across the Liffey from the Point.

Dunnes refused to accept the certificate of completion from PVD’s architect in relation to the €3 million payment. As a result, an independent architect was appointed by the president of the Royal Institute of Architects to resolve the dispute.

Following submissions from both sides to the independent architect, Dunnes brought High Court proceedings seeking a declaration that the Point Square design did not comply with the terms of the 2008 agreement. PVD then asked the court to stay the Dunnes’ case pending the independent architect’s decision.

The High Court refused to grant a stay saying there were significant disagreements between the parties on how the 2008 agreement should be interpreted.

That decision was appealed to the CoA by PVD receivers Paul McCann and Stephen Tennant. Last year, the CoA overturned the High Court decision and said not alone should the Dunnes’ case be stayed but it should be struck out entirely.

Dunnes obtained a further appeal from the Supreme Court which on Wednesday found it was not appropriate for the CoA to strike out the entire case.

This was a case which gave rise to an issue which had not been previously determined in this jurisdiction, Ms Justice Elizabeth Dunne said, giving the court’s decision.

It was a case in which the parties agreed to resolve this dispute by means of independent determination by an expert, she said.

Practicality

“He [the expert] should be allowed to proceed with his function,” she said.

The fact that he may be obliged, in carrying out that function, to interpret a clause in the 2008 development agreement does not preclude him from exercising this function, she said.

“His function necessarily involves the resolution of mixed questions of law and facts.”

As a matter of practicality, it was difficult to see how he could decide whether the Point Village square had been completed in an appropriate fashion without interpreting what was meant by the 2008 agreement.

In the circumstances of this case, it was premature of Dunnes to issue proceedings and the judge thought it preferable that the expert should have first been allowed complete his function.

The court adjourned the matter for two weeks to allow both sides make submissions on why costs should not be granted against Dunnes. The court is also to be informed of what will happen with Dunnes’ main challenge in relation to the square design.