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2026 IEHC 311

THE HIGH COURT [2026] IEHC 311 [Record No. H.P.2026.0001619] BETWEEN INTERNATIONAL INVESTMENTS ICAV PLAINTIFF AND BLANCHE RETAIL NOMINEE LIMITED DEFENDANT JUDGMENT of Ms Justice Bolger dated the 15th day of May 2026

  1. This is the plaintiff's application for interlocutory injunctive relief restraining the defendant, pending the trial of the action, from continuing with works which the plaintiff says interfere unlawfully with its rights to use a car park at the Blanchardstown Shopping Centre. For the reasons set out below, I am refusing this application. The proceedings
  2. The plaintiff is an Irish collective asset-management vehicle and is the lessee of a property in the Blanchardstown Shopping Centre that is currently run, by the plaintiff’s tenant, as an entertainment outlet called Leisureplex (hereinafter referred to as “the property”). The lease between the plaintiff and the defendant includes the following provision about the lessee’s use of the 586-space carpark adjoining the property (hereinafter referred to as “the car park”) at clause 4; “The right in commons with all others authorised by the Landlord or the Developer to the use of the Car Park referred to as clause 8 of the Seventh Schedule for the parking by the Tenant and its customers of private cars 24 hours a day every day of the year subject to such periods of temporary interruption as may arise due to maintenance repair extension or alteration of the said Car Park and subject to such proper and reasonable rules and regulations in relation to the use of the said Car Park PROVIDED THAT any such rules and 2 regulations in relation to the use of the said Car Park shall not interfere with the right of the Tenant and the customers of the Demised Premises to use the said Car Park for parking 24 hours a day everyday of the year and provided further that no charge shall be made to the Tenant or to customers of the Demised Premises and that any charge made to other parties for the use of the Car Park shall be applied towards the costs described at Clause 8 of the Seventh Schedule.” In December 2025, the plaintiff wrote to the defendant to advise them that the defendant’s proposed development of the shopping centre included changes to the car park by the creation of a taxi area in it, which they said was not permitted under the lease and would be in breach of it. The defendant did not respond until February and acknowledged at that time that “Leisureplex customers have the right to use certain designated car parking areas free of charge pursuant to the lease" but contended that the landlord has "unequivocal rights under the lease to carry out works and to implement carparking changes". In March 2026, the plaintiff says it became aware that a section of the car park had been fenced off. The defendant maintains that this occurred earlier at the beginning of February. Further correspondence followed in which undertakings were sought and refused.
  3. The within proceedings issued on 27 March 2026 and an ex parte order for short service was made on 2 April
  4. The within interlocutory application was heard before this Court on 24 and 29 April. The defendant accepted that the creation of the taxi area will permanently remove 26 of the 586 car park spaces and the works required will remove some more of the car park spaces on a temporary basis. Reliefs sought
  5. The plaintiff seeks the following interlocutory reliefs; "
  6. An interlocutory injunction restraining the Defendant, pending the determination of the within proceedings or further Order of the Court, from carrying out any works to, or in the “Car Park” as defined in the Lease dated 23 September 1996 between

(1)Irish Commercial Properties limited
(2)Dublin West One Limited
(3)The Governor and Company of the Bank of Ireland and
(4)Nagisee Limited (the “Lease”) and more particularly shown hatched in blue on the Plan annexed thereto.
  1. An interlocutory injunction directing the Defendant, pending the determination of the within proceedings or further Order of the Court, to remove the makeshift site compound (“the compound”) which has been erected and installed in part of the 3 north-western section of the Car Park, together with all hoarding, fencing, offices, cabins, machinery, materials and detritus contained in and around the Compound.
  2. An interlocutory injunction directing the Defendant, pending the determination of the within proceedings or further Order of the Court, to reinstate the Car Park to the condition in which it was to be found immediately prior to the erection and installation of the Compound.
  3. An interlocutory injunction restraining the Defendant, pending the determination of the within proceedings or further Order of the Court, from reducing the number of car park spaces in the Car Park (save for such temporary interruption as is provided for in in Clause 4 of Part One of the Third Schedule to the Lease).
  4. Whilst elements of this application might be satisfied by a fair issue to be tried test, the effective relief sought by the plaintiff is to reinstate the car park spaces that are not currently available to them and the other tenants with whom they share the car park. Such mandatory injunctive relief requires the plaintiff to satisfy the ‘strong case’ test. Delay
  5. The defendant maintains that the plaintiff has delayed in applying to halt the works and reinstate the car park spaces, having been aware of the defendant’s intention to develop a taxi area at the car park since December
  6. In principle, a delay of four months could defeat a claim for equitable injunctive relief. However, on the evidence before me, I am satisfied that the earliest the plaintiff could have known of the works was in February when the defendant says it erected fencing, or possibly in March, when the plaintiff says it first saw it. Thereafter, correspondence followed and the within application was brought promptly after a reasonable period was, quite properly, allowed to the defendant to furnish undertakings to avoid the need to bring the within proceedings. The plaintiff’s case
  7. The plaintiff maintains that its right to a shared use of the car park pursuant to its lease with the defendant is an easement and that its right to use the car park is, therefore, a constitutionally protected property right. It says that the permanent removal of some of the car park spaces to allow for the taxi area is a detriment. It relies on AIB Plc v Diamond [2011] IEHC 505, [2012] 3 IR 549, and O’Flaherty’s (Nassau Street) Ltd v The Setanta Centre Unlimited Company [2020] IEHC 272, in arguing that interference with its easement property right is incapable of being remedied by an award of damages, as this would be allow the defendant to purchase the ability to undermine those property rights. The plaintiff says that the damage it will suffer to its business and economic 4 interest if the injunction is refused is likely to be difficult, if not impossible, to calculate. As they previously advised the defendant of its view that the lease did not permit the defendant to create a taxi area in the car park, it says the maintenance of the status quo is that which applied prior to commencement of the works, i.e. the full 586-space car park. The defendant’s case
  8. The defendant disputes the plaintiff has an easement. It says that the creation of the taxi area and permanent removal of 26 of the 586 car park spaces will still leave ample car park spaces for the plaintiff’s customers and its sub-tenant’s customers, both in that car park and elsewhere in the Centre. The defendant disputes the alteration to the car park constitutes a derogation to the grant as it says it comes within the alterations permitted by clause
  10. In any event, the defendant say that damages are an adequate remedy, even if the plaintiff has property rights in the lease, and that the balance of convenience favours the refusal of the injunction. Separately it challenges the adequacy of the plaintiff’s undertaking as to damages as it says the plaintiff has refused to give them sufficient information to allow them to properly assess the plaintiff’s undertaking. The plaintiff's rights pursuant to the lease
  11. Pursuant to clause 4 of the lease the plaintiff has the right to the shared use of the car park, 24 hours a day, every day of the year. Counsel for the plaintiff accepted that that its right to use the car park spaces is shared and is subject to competition, i.e. the right to use such car park spaces as may be available to them. However, the plaintiff says that its right is to share the entire 586 spaces that were available to it prior to the commencement of the current works, 26 of which will be taken up by the taxi area. A new taxi area is required in order to replace the shopping centre’s current taxi rank with a system that allows taxis to wait in the taxi area in the car park from where it will be called to a new, smaller taxi pick up area close to the new entrance.
  12. The parties disagree about whether the terms of clause 4 which allow the defendant to alter the car park, also allows for a reduction in the number of car park spaces available to the plaintiff. The plaintiff relies on a number of UK decisions which establish that the right of a tenant to park in shared car park is an easement (London and Blenheim Estates Ltd v Ladbrokes Retail Parks Ltd [1993] 1 All ER 307 and Duchess of Bedford House RTM Co Ltd & Ors v Campden Hillgate Ltd [2023] EWCA Civ. 1470). Neither decision is binding on this Court but they are persuasive to it, particularly in the absence of Irish authorities on whether access to shared car parking spaces constitutes an easement. 5
  13. The defendant contends that the plaintiff seeks to sterilise what is a common area, relying on the decision of the Court of Appeal in the Square Management Ltd v Dunnes Stores Dublin Company [2017] IECA
  14. Whelan J held, at para. 155, having observed that the proposed development was to reconfigure and increase the number of car park spaces available under the licence granted:"
  15. This approach accords with a purposive construction of the language contained in clause
  16. Further, this approach accords with commercial common sense and commercial logic having due regard to the fact that the parties entered into, under the terms of the E & G Lease, for a letting of a unit in the shopping centre for a term of 9,980 years. The variation of the configuration of the car parking spaces from surface parking for 289 spaces to provision of a multi-storey car park for a very substantially greater number of vehicles whilst retaining a reduced but still significant number of surface level parking spaces on the Northern Car Park Area does not amount to a permanent interference with the occupation, use or amenity or engagement of the Demised Premises, having due regard to the provisions of the Leases in their entirety. Whelan J concluded, at para. 157; "
  17. There is no reasonable construction of clause 6 which would support a contention, such as Mr. Gardiner S.C. eloquently argued for, that what the parties had in mind when they entered into same was that, in effect, it would operate to sterilise the common areas and effectively preclude any development or alteration of the Centre or the common areas as was otherwise than temporary in nature."
  18. However, the Square decision does not assist the defendant as the works in that case were to reconfigure a car park and actually led to a greater number of car park spaces. The UK decisions cited to me are persuasive that the plaintiff has an easement in its right to the shared use of the car park with the 586 spaces it had before the works began.
  19. I am therefore satisfied that the plaintiff has established a strong case that it will succeed at trial in establishing:
(1)that the creation of the taxi area, and resultant loss of 26 car park spaces from the 586 spaces originally available to the plaintiff, is not permitted by clause 4, and
(2)that the plaintiff’s shared right to allow its customers to park in the car park is an easement. 6 The balance of convenience including the adequacy of damages
  1. Having found that the plaintiff has established a strong case it will secure a permanent injunction at trial for the reliefs it now seeks, I now move to consider the balance of convenience, the most significant element of which is the adequacy of damages. This involves consideration of the nature of the property rights involved, for both the plaintiff and the defendant, and how that affects the court's analysis of the adequacy of damages.
  2. The plaintiff says, quite simply (at para. 1.6 of the submissions) that; “Further, as the Plaintiff has established the existence of a strong case and or bona fide question with regard to the existence of its property rights and the effect that the Defendant’s works will have on those rights, the Defendant is not entitled to argue that it is entitled to continue with those works nonetheless on the basis that damages would be an adequate remedy for the Plaintiff. It is a well-established principle of Irish law that a defendant may not “compulsorily acquire” a plaintiff’s property rights by advancing the argument that damages would be an adequate remedy such that even if the plaintiff succeeds at trial. Any interference with its property rights can be compensated by an award of damages. AIB plc v Diamond [2011] IEHC 505; [2012] 3 IR 549).” I do not think the situation is anything as definitive as the plaintiff asserts, which is somewhat inconsistent with the inherently flexible nature of the remedy of an interlocutory injunction, as has been determined by the Supreme Court in Merck Sharp and Dohme v Clonmel Healthcare Ltd [2019] IESC
  4. In AIB v Diamond, the court held that damages were not an adequate remedy for the breach of the plaintiff’s property rights in confidential information. However, that conclusion was reached in the specific context of the springboard injunction sought in that case and does not establish that damages can never be an adequate remedy for breaches of property rights. Clarke J (as he then was) explained, at para. 8.2, "The mere fact that it may, therefore, be possible to put a value on property rights lost does not, of itself, mean that damages are necessarily an adequate remedy for the party concerned is entitled to its property rights instead of their value. Viewed in that way, damages would not be an adequate remedy for AIB. In particular, a failure to grant interlocutory relief at this stage would mean, in practice, that imposing some form of springboard injunction after the trial would be largely redundant. If the defendants are permitted to avail of what transpires to be (after trial) an unlawful head start for the period 7 between now and trial, it will become virtually impossible to undo that head start in any practical way whatever the findings of the court at trial might be. In those circumstances it seems to me that AIB would suffer irremediable loss to its property rights in the event that it should not obtain an interlocutory injunction now but should succeed at trial" (emphasis added). Clarke J went on to find that damages were also inadequate for the defendant if an injunction was imposed at the interlocutory stage but refused at trial.
  5. The court recognised, in AIB v Diamond, that damages may be an adequate remedy for breach of property rights but is less likely where the loss to property rights is irremediable. In a similar vein, the danger of allowing a party to buy out property rights was highlighted by Gearty J in O'Flaherty's (Nassau Street) Ltd v Setanta Centre Unlimited Company [2020] IEHC 272 where she held, at para. 7.3; "If the injunction is refused due to the Defendant’s ability to compensate the Plaintiff after the fact for a breach that ought not to have taken place at all (if this easement is found to exist) such a refusal sends a dangerous message to litigants who are well-resourced. The message being that money can buy a party out of any breach of the law. That is not so…" However, the breach of the plaintiff's property rights in that decision was of a very different nature, as it involved the demolition of a building with no possibility of returning to the status quo (as found by Gearty J at para. 2.5). In effect, this was exactly the irremediable type of loss that was found to tip the balance of convenience in favour of a limited injunction in AIB v Diamond.
  6. Gearty J also recognised that some, though not all, cases can be monetised (at para. 6.3). Again, her decision does not confirm the plaintiff’s contention that once a claimant establishes a strong case in respect of its property rights and the impact of the defendant’s actions on those rights, the defendant may nonetheless proceed on the footing that damages would suffice—even if those actions are ultimately found to be unlawful—since Irish law does not permit a defendant effectively to compel the taking of property rights by treating them as compensable in damages. but rather applies the interlocutory injunction in the flexible way as was required by the Supreme Court in Merck Sharp and Dohme.
  7. The question then arises as to the nature and extent of the detriment that the plaintiff claims to have suffered and whether the loss can be remediated or not. The defendant’s deponent stated in its first replying affidavit at para. 85; 8 “The Plaintiff can be adequately compensated in damages for any loss of use of part of the Yellow Car Park between now and the hearing of the action even if the Plaintiff ultimately succeeded at trial in obtaining a mandatory injunction requiring the Defendant to reinstate the prior layout of the Yellow Car Park.” This was reiterated by counsel for the defendant in her submissions. She also confirmed that the defendant could not seek to argue at trial that its planning permission precluded removal of the taxi area. If the plaintiff succeeds in seeking injunctive relief at trial, the defendant may have to remove the taxi area and reinstate the 26 car park spaces that the creation of the taxi area will remove from the car park. Therefore, the loss is, on no analysis, irremediable as it was found to be in AIB or in O’Flaherty’s authorities.
  8. That leaves the detriment that the plaintiff asserts it will now suffer. The plaintiff’s evidence of this was singularly vague. The plaintiff is the tenant pursuant to the lease but has sublet the property, with the car park rights it has pursuant to clause 4, to a sub-tenant who took no part in the proceedings, whether on its own behalf or in support of the plaintiff’s position. The sub-tenant currently runs an entertainment business from the premises. The plaintiff contended that it would sustain damage from the works not just as its sub-tenant’s landlord but also to its own business and economic interest, including in relation to its plan to change the use of the property to retail and other different commercial activities.
  9. In his grounding affidavit, sworn 2 April 2026, the plaintiff’s deponent made a very brief reference to the defendant's actions causing damage where he stated, at para. 27, they were “likely to cause damage to the plaintiff's business/economic interests if they are permitted to continue”. In his second affidavit, sworn on 14 April 2026, the plaintiff’s deponent responded to the defendant's averments about what they said was the adequacy of damages, by stating, at para. 32, "In circumstances where the Plaintiff only became aware of the Compound less than four weeks ago, it has not been possible to engage in an actuarial calculation of the Plaintiff’s actual and anticipated loss. However, if the Plaintiff is correct in its interpretation of Clause 4, then it is indisputable that the Plaintiff will suffer loss as a result of being denied the car parking rights which it is entitled to under the lease." By the time the third affidavit was sworn on 21 April 2026, the plaintiff’s deponent had become markedly less definitive and more vague about the impact the loss of 26 car park spaces would have for the plaintiff’s business and economic interests in stating, at para. 8 of his affidavit, 9 “With regard to the damage to the Plaintiff’s business and economic interests, it is difficult to quantify the loss of passing trade to the sub-tenant’s business which is operating from the Demised Premises and which the Plaintiff may be exposed to in a claim for damages if the Plaintiff’s undoubted property right in the Car Park continues to be infringed by the Defendant. It is simply not possible to say with any degree of accuracy the level of passing trade which would or might have attended the Demised Premises but for the reduction in or unavailability of parking by reason of the continued presence of the Compound in the Yellow Car Park”.
  10. The plaintiff’s averments in relation to the damage it believes it will suffer are speculative and devoid of any evidential basis. As observed by Murray J in Ryan v Dengrove DAC [2021] IECA 38, at para. 74, "it is not open to the appellants to produce letters or affidavits from an expert witness stating that there might be an adverse impact on value simply because the property will be sold by a receiver and, without explaining the basis for that view or providing any detail of the factual assumptions on which it is based, to proclaim that they have provided evidence sufficient to ground this aspect of their proofs".
  11. I do not accept that a claimed difficulty in quantifying the plaintiff’s exposure to damages justifies the lack of any effort to perform what is not a complex actuarial calculation (as the plaintiff seems to assert) in order to set out some sort of analysis as to the plaintiff’s generation of income and profit from when its customers (or its tenant’s customers) had access to 586 car park spaces in the immediate vicinity of its premises as compared to when it had access to a lesser number of car park spaces during the works that the plaintiff wishes to halt or, indeed, to estimate the damage that would be caused by the permanent loss of 26 car park spaces if the defendant’s taxi area is permitted to stay in the car park. I made a similar finding in Somnus GMC Waterford Limited and Anor v Flynn and Anor [2025] IEHC 60 and Tesco Ireland Limited v Multi-Home Retail Limited [Trading as Choice Stores] [2026] IEHC 276 about the availability of such calculations of loss, having regard to what O’Donnell J said in Merck Sharp and Dohme should be the scepticism with which a court should approach any claim for damages are not adequate in a commercial context.
  12. The plaintiff has failed to satisfy me that damages would not be an adequate remedy for the loss it believes it will suffer if it, or its sub-tenant’s customers, have 26 less car park spaces available to them and/or have to go elsewhere in the Centre to locate a car park space. 10
  13. Given my findings on the adequacy of damages, the adequacy of the plaintiff’s undertaking as to damages does not arise. A similar conclusion was reached by Murray J in Ryan, at para.
  15. The plaintiff’s failure to establish the inadequacy of damages is part of the court's consideration of the balance of convenience. In addition, I take account of the following:
(1)Any damage caused by the replacement of 26 car park spaces with a taxi area can be remediated.
(2)Clause 4 allows the defendant to authorise users other than the plaintiff to use the car park, which must include taxis.
(3)The terms of clause 4 do not give the plaintiff the right to a minimum number of car park spaces (which is accepted by the plaintiff).
(4)The defendant has committed, through its counsel, that it will not rely on the terms of its planning permission to argue at trial that is is precluded from removing the taxi area in the event that an injunction is granted.
(5)Whilst the current works have removed 70 car park spaces temporarily from the car park, the defendant has made an additional 165 immediately adjacent car park spaces available for use by the plaintiff's sub-tenants and its customers. Conclusion
  1. For the reasons set out above, whilst I find the plaintiff has established a strong case around the nature of its right to use the car park, on the balance of convenience, in particular, taking account of the adequacy of damages, I refuse the injunctive relief that has been sought. Indicative view on costs
  2. My indicative view as to costs is that the plaintiff is entitled to its costs to be adjudicated upon in default of agreement with a stay on the execution of any such order pending the final outcome of the proceedings. I have found in Somnus v Flynn in relation to costs that the injunction should not have been sought and issues that gave rise to the refusal of the injunctive reliefs would not be revisited at trial and, in those circumstances, I made a costs order similar to the indicative order as set out above.
  3. I will put the matter in for mention for 10.00am on 11 June
  4. Counsel for the Plaintiff: Andrew Fitzpatrick SC, James Nerney BL Counsel for the Defendant: Kelley Smith SC, Anna Shanley BL 11 H.P.2026.0001619 Thursday the 21st day of May 2026 BEFORE MS JUSTICE MARGUERITE BOLGER BETWEEN INTERNATIONAL INVESTMENT ICAV PLAINTIFF AND BLANCHE RETAIL NOMINEE LIMITED DEFENDANT Upon Motion of Counsel for the Plaintiff pursuant to Notice of Motion dated the 2nd day of April 2026 coming before the Court for hearing on the 24th day of April 2026 and the 29th day of April 2026 in the presence of said Counsel and Counsel for the Defendant seeking the following reliefs: “
  5. An Interlocutory Injunction restraining the Defendant, pending the determination of the within proceedings or further Order of the Court, from carrying out any works to, on or in the “Car Park” as defined in the Lease dated 23 September 1996 between
(1)Irish Commercial Properties Limited
(2)Dublin West One Limited
(3)The Governor and Company of the Bank of Ireland and
(4)Nagisee Limited (the “Lease”) and more particularly shown hatched in blue on the Plan annexed thereto. 12
  1. An Interlocutory Injunction directing the Defendant, pending the determination of the within proceedings or further Order of the Court, to remove the makeshift site compound (the “Compound”) which has been erected and installed in part of the north-western section of the Car Park, together with all hoarding, fencing, offices, cabins, machinery, materials and detritus contained in and around the Compound.
  2. An Interlocutory Injunction directing the Defendant, pending the determination of the within proceedings or further Order of the Court, to reinstate the Car Park to the condition in which it was to be found immediately prior to the erection and installation of the Compound.
  3. An Interlocutory Injunction restraining the Defendant, pending the determination of the within proceedings or further Order of the Court, from reducing the number of car park spaces in the Car Park (save for such temporary interruption as is provided for in Clause 4 of Part One of the Third Schedule to the Lease).
  4. Such further or other Order(s) or direction(s) as this Honourable Court deems meet
  5. Costs.” And upon reading the said Notice the Plenary Summons herein the Affidavits
(3)of Patrick Gorman filed on the 2nd day of April 2026 the 14th day of April 2026 and the 21st day of April 2026 respectively the Affidavit of David O’Flaherty filed on the 10th day of April 2026 the Affidavits
(3)of Connor Owens filed on the 10th day of April 2026 the 17th day of April 2026 and the 22nd day of April 2026 respectively the Orders
(2)of this Court made on the 2nd day of April 2026 and the 7th day of April 2026 respectively and the exhibits referred to in said respective Affidavits And on reading the written legal submissions of Counsel for the Plaintiff and of Counsel for the Defendant 13 And the proceedings herein being reported by a shorthand writer And upon hearing said respective Counsel And the Plaintiff by said Counsel undertaking to abide by any Order which this Court may hereafter make as to damages in the event of this Court being of opinion that the Defendant or either of them shall have suffered any damage by reason of this Order which the Plaintiff ought to pay The Court was pleased to reserve judgement in this matter And the same coming on accordingly for judgment on the 13th day of May 2026 in the presence of said respective Counsel and the Court orally informing the parties of its decision with written judgment to follow as soon as possible And said written judgment being delivered thereafter electronically on Friday the 15th day of May 2026 And the matter being adjourned to Thursday the 21st day of May 2026 for the purpose of final Orders And same coming on accordingly on this day in the presence of said respective Counsel And on hearing said Counsel in respect of costs and the question of a typographical error contained in the Court’s indicative view on costs as set out in paragraph 29 of the written judgment herein in particular whether reference to the “plaintiff” should be to the “defendant” And the Court noting that such a typographical error is contained in the said indicative view IT IS ORDERED that the said Motion be refused And IT IS ORDERED that the Defendant do recover its costs of this Motion from the Plaintiff such costs to be adjudicated in default of agreement between the parties 14 And IT IS ORDERED that execution on foot of the said costs Order be stayed pending the determination of the proceedings herein And IT IS ORDERED that the Defendant be at liberty to apply in respect of the within stay on the Order for costs And IT IS FURTHER ORDERED that a copy of this Order be appended to the judgment published herein bearing neutral citation [2026] IEHC 311 CHELSEA DELAHUNTY REGISTRAR th Perfected: 4 day of June 2026 William Fry LLP Solicitors for Plaintiff Arthur Cox LLP Solicitors for Defendant

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