Interlocutory Relief and Alleged Easement Interference: Strong Case Is Not Enough Where Loss Is Remediable and Damages Are Quantifiable

1) Introduction

The plaintiff, an Irish collective asset-management vehicle, was the lessee of premises at Blanchardstown Shopping Centre operated by its sub-tenant as an entertainment venue (“the property”). Under a 1996 lease, the plaintiff enjoyed (in common with others authorised by the landlord/developer) a right for the tenant and its customers to use an adjoining 586-space car park free of charge, 24/7, subject to temporary interruption for maintenance/repair/extension/alteration and subject to reasonable rules that must not interfere with the right to use the car park.

A dispute arose when the defendant landlord commenced works to create a taxi area within the car park. The defendant accepted the taxi area would permanently remove 26 spaces (and temporarily remove additional spaces during works). The plaintiff sought interlocutory relief, including mandatory orders to remove a site compound and reinstate the car park pending trial.

2) Summary of the Judgment

Ms Justice Bolger refused the plaintiff’s application for interlocutory injunctive relief. The Court:

• held there was no disqualifying delay on the evidence;
• accepted the plaintiff had established a strong case that (i) the taxi area’s permanent removal of 26 spaces was not permitted by the relevant lease clause, and (ii) the plaintiff’s shared car-parking right was an easement;
• nevertheless found, on the balance of convenience, that the plaintiff failed to demonstrate damages would be inadequate, because the loss was not irremediable and the plaintiff’s evidence of commercial detriment was speculative and unsupported by meaningful analysis;
• noted additional balance-of-convenience factors, including that the defendant could later remove and reinstate, that taxis were within the class of “others authorised”, that the lease did not guarantee a minimum number of spaces, and that the defendant made alternative spaces available.

3) Analysis

A. The interlocutory standard applied: “strong case” for mandatory relief, then balance of convenience

The Court treated the plaintiff’s application as seeking, in substance, mandatory relief (reinstatement/removal), not merely preservation. Accordingly, while some elements might meet a “fair issue to be tried” threshold, the effective relief required the plaintiff to satisfy the “strong case” test (and then still succeed on balance of convenience).

B. Lease construction and the nature of the right: strong case of an easement

Clause 4 granted a 24/7 shared right to use the car park, subject to temporary interruption and reasonable rules that must not interfere with the tenant/customer right to park free of charge. The parties disputed whether the landlord’s permitted alterations could include a permanent reduction in spaces.

Although not binding, the Court found UK authority persuasive in the absence of Irish decisions directly on point as to shared car-parking rights constituting an easement:

• London and Blenheim Estates Ltd v Ladbrokes Retail Parks Ltd [1993] 1 All ER 307
• Duchess of Bedford House RTM Co Ltd & Ors v Campden Hillgate Ltd [2023] EWCA Civ. 1470

The Court also addressed the defendant’s reliance on Irish authority warning against “sterilising” common areas:

• Square Management Ltd v Dunnes Stores Dublin Company [2017] IECA 256

The Court distinguished Square Management on its facts: the reconfiguration there increased parking provision, whereas the present works permanently removed 26 spaces. The Court therefore held the plaintiff had a strong case that the taxi area was not permitted by clause 4 and that the shared parking right was an easement.

C. “Property right” does not automatically mean damages are inadequate: Merck-driven flexibility

A major theme was the Court’s rejection of an absolute proposition that, once a strong case exists of interference with property rights (here, an easement), the defendant cannot resist interim relief by arguing damages are adequate. The Court considered that proposition inconsistent with the inherently flexible interlocutory injunction analysis mandated by:

• Merck Sharp and Dohme v Clonmel Healthcare Ltd [2019] IESC 65

D. Precedents cited on adequacy of damages and “buying out” rights

1) AIB Plc v Diamond [2011] IEHC 505, [2012] 3 IR 549

The plaintiff relied on AIB Plc v Diamond for the idea that damages are inherently inadequate where property rights are interfered with, because otherwise a defendant could “purchase” the right to breach. The Court read AIB Plc v Diamond more narrowly:

• It was decided in the context of a springboard injunction and confidential information.
• Clarke J’s reasoning stressed irremediability: if an unlawful “head start” were allowed before trial, it could not practically be undone later, making damages inadequate.
• The decision also recognised symmetry: damages could be inadequate to the defendant if wrongly restrained.

Accordingly, AIB Plc v Diamond did not establish that damages can never be adequate for property-right interference; rather, it highlighted circumstances where loss cannot realistically be reversed.

2) O'Flaherty's (Nassau Street) Ltd v The Setanta Centre Unlimited Company [2020] IEHC 272

The Court accepted that O'Flaherty's (Nassau Street) Ltd v The Setanta Centre Unlimited Company contains a caution against well-resourced litigants treating damages as a licence to breach (“money can buy a party out of any breach of the law”). But it distinguished that case because it concerned demolition and a practical impossibility of restoring the status quo—again, irremediable harm. It also noted that Gearty J recognised some cases can be monetised.

3) Ryan v Dengrove DAC [2021] IECA 38

On evidential sufficiency, the Court invoked Ryan v Dengrove DAC [2021] IECA 38 to underline that a party cannot rely on vague assertions of adverse impact without explaining the basis, assumptions, or detail. This was deployed to critique the plaintiff’s speculative claims about “passing trade”, exposure to claims by its sub-tenant, and unspecified future re-use plans.

4) The judge’s recent commercial-injunction approach: 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

The Court aligned the present case with its approach 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: commercial parties who claim damages are inadequate are expected to engage with quantification where feasible, reflecting the Supreme Court’s instruction in Merck Sharp and Dohme v Clonmel Healthcare Ltd [2019] IESC 65 that courts should be appropriately sceptical about inadequacy-of-damages assertions in commercial settings.

E. Legal reasoning: why the injunction was refused despite a strong case

1) Remediability was decisive

A key factual/legal concession was that, if the plaintiff succeeded at trial, the taxi area could be removed and the 26 spaces reinstated; the defendant also confirmed it would not argue that planning permission prevented removal. The Court therefore treated the alleged infringement as not irremediable. That single conclusion sharply reduced the force of the plaintiff’s reliance on “property rights” authorities focused on irreversibility.

2) The plaintiff did not prove non-compensable commercial harm

Although the plaintiff asserted that the loss was hard to quantify, it provided no meaningful evidential foundation:

• the plaintiff was a head landlord; the sub-tenant did not participate to evidence actual trading impact;
• affidavit evidence moved from “likely” damage to “difficult to say with accuracy”;
• no analysis was offered comparing revenue/profit or footfall with 586 spaces versus fewer spaces, nor an estimate of loss from the permanent removal of 26 spaces.

The Court regarded this as insufficient, especially given that such an exercise was not inherently complex in a commercial case.

3) Additional balance-of-convenience considerations

Beyond adequacy of damages, the Court weighed factors pointing away from mandatory interim relief, including:

• the lease allowed the defendant to authorise other users of the car park (which “must include taxis”);
• the lease did not confer a right to a minimum number of spaces (a point accepted by the plaintiff);
• temporary disruption was partly offset: while 70 spaces were temporarily removed, the defendant made 165 adjacent spaces available.

F. Impact and significance

• Property-right framing is not a trump card at interlocutory stage: Even where a claimant shows a strong case of easement interference, the Court may still refuse interim relief if the harm is remediable and damages appear quantifiable.
• Evidential discipline in commercial injunctions: The decision reinforces a trend (consistent with Merck) requiring concrete, assumption-explained evidence on loss, rather than generalized statements about “passing trade” or quantification difficulty.
• Shared car-parking rights as potential easements: The Court’s willingness to treat a shared right to use a defined car park as potentially an easement—supported by persuasive UK authority—may influence pleading and drafting in shopping-centre leasing disputes.
• Planning permission arguments can be neutralised early: The defendant’s commitment not to rely on planning permission to resist later reinstatement reduced the “fait accompli” risk, affecting balance-of-convenience analysis in development-related disputes.

4) Complex Concepts Simplified

• Interlocutory injunction: Temporary court order pending trial. The court weighs probability of success and practical consequences.
• Mandatory vs prohibitory injunction: A prohibitory injunction stops conduct; a mandatory injunction compels action (e.g., removing a compound, reinstating spaces). Mandatory relief typically requires a stronger merits showing.
• Strong case: A higher threshold than “fair issue to be tried”, often used where the interim order would effectively grant the claimant the main relief.
• Balance of convenience: The court asks which course (grant/refuse) carries the lower risk of injustice, with special focus on whether damages can adequately compensate either side.
• Adequacy of damages: Damages are “adequate” if money can realistically compensate the likely loss and the loss is measurable. They are less likely adequate where harm is irremediable (cannot be undone).
• Easement: A property right attached to land (e.g., a right of way or to park) that binds successors and is constitutionally significant; but its existence does not automatically dictate the interim remedy.
• Derogation from grant: A landlord must not take back, by later acts, what it has granted; disputes often turn on the scope of the grant and permitted alterations.

5) Conclusion

International Investments ICAV v Blanche Retail Nominee Ltd [2026] IEHC 311 illustrates that establishing a strong case of lease-breach and even easement interference may not secure mandatory interlocutory relief. The decisive inquiry remains the balance of convenience, particularly whether the harm is irremediable and whether the claimant has provided a solid evidential basis for asserting that damages are inadequate. The judgment also signals that, in commercial disputes, courts will expect practical quantification efforts where feasible, and will resist treating “property rights” as automatically immune from monetary compensation at the interlocutory stage.

Costs (indicative): The Court indicated a provisional view that the plaintiff should have its costs (adjudicated if not agreed), with a stay on execution pending the final outcome—reflecting the Court’s approach in Somnus GMC Waterford Limited and Anor v Flynn and Anor [2025] IEHC 60.