Liberty to Apply Is for Working Out, Not Rewriting: Limits on Post‑Judgment Clarification and Retrospective Time Extension in Point Village Development Ltd v Dunnes Stores [2025] IEHC 480

Liberty to Apply Is for Working Out, Not Rewriting: Limits on Post‑Judgment Clarification and Retrospective Time Extension in Point Village Development Ltd v Dunnes Stores [2025] IEHC 480

Introduction

This commentary examines the High Court of Ireland’s follow-on judgment in Point Village Development Limited v Dunnes Stores Unlimited Company [2025] IEHC 480, delivered by Sanfey J. on 4 September 2025. The decision sits alongside an earlier “main judgment” of 10 April 2025 and resolves two pivotal post-judgment issues:

  • Whether the Court should retrospectively extend time for Dunnes to comply with a mandatory order requiring fit out works (Order 1(d)).
  • Whether the Court could, via “liberty to apply” or inherent jurisdiction, “clarify” those orders to compel a full fit out of the entire store.

The plaintiff, Point Village Development, alleged contempt arising from Dunnes’ failure to complete works within the court-ordered timeframe and further sought judicial clarification that the orders required a complete fit out of the entire store. Dunnes sought an extension of time to regularise the late completion of its more limited fit out (colloquially the “penalty-box” unit).

The judgment provides an important restatement—bordering on a refined principle—of the limits of the “liberty to apply” jurisdiction and the Court’s inherent jurisdiction in post-judgment contexts: they may be used to work out and implement an existing order, but not to adjudicate new, unlitigated issues or to rewrite the order’s substance. Simultaneously, the Court confirms it may retrospectively extend time to comply with an order while refusing to treat a discrete delay as contempt, instead marking disapproval through costs.

Summary of the Judgment

  • Clarification/Variation refused: The Court declined to “clarify” that Order 1(d) compelled Dunnes to fit out the entire store. Using “liberty to apply” or inherent jurisdiction to reach that result would, on the facts, amount to deciding a new issue that was not argued before the original orders were made (paras. 31–36).
  • Retrospective extension granted: Although Dunnes breached the deadline (10 June 2022), the Court retrospectively extended time for compliance to 27 July 2022, the date on which Dunnes completed the smaller fit out (paras. 37–43, 50(1)).
  • No contempt for delay alone: The six-week delay, while reprehensible, did not meet the legal standard for penal contempt in the circumstances of this long-running dispute (paras. 40–42).
  • Costs:
    • Plaintiff gets costs of the extension motion (paras. 44–47, 50(2)).
    • Indicative view: each party to bear own costs on the contempt motion, with an opportunity for further submissions (paras. 48–49, 50(4)).

Detailed Analysis

Precedents Cited and Their Influence

The Court’s reasoning on the scope of liberty to apply and inherent jurisdiction turned on established Irish authority, reinforced by a standard text:

  • Donegal County Council v Ballantine [1998] IEHC 203 (McCracken J.):
    • Adopted Halsbury’s Laws of England (4th ed., Vol. 26, para. 554) summarising “liberty to apply”.
    • Key proposition: Liberty to apply permits parties to return to court to clarify the extent or application of the order where necessary to work it out; it does not authorise the court to determine new matters or vary a final order except possibly on proof of changed circumstances (paras. 24–25, 27).
  • Drogheda Corporation v Gantley (Unreported, High Court, 28 July 1983) (Gannon J.):
    • Reinforces that liberty to apply serves implementation—by enforcement, variation, or suspension—but cannot be used to compel the court to revise its decision or resolve further disputes not previously submitted (para. 28–30).
  • Laois County Council v Hanrahan [2014] 3 IR 143 (McKechnie J.):
    • Contempt standard requires conduct that can properly be termed serious, outrageous, wilful, deliberate, or a gross affront to the court, and must be established beyond a reasonable doubt (para. 42).
  • Sky UK Limited v Dunbar [2025] IEHC 465:
    • Cited for the contempt standard (para. 42).

These authorities collectively anchored two central holdings:

  • Clarification via liberty to apply or inherent jurisdiction cannot be a vehicle to adjudicate fresh issues or expand an order’s scope beyond what was litigated and decided.
  • Not every breach of an order is contempt; where the criminal standard and seriousness threshold are unmet, the court may address breach through other means (such as retrospective extension and costs).

Legal Reasoning

1) Limits of “Liberty to Apply” and Inherent Jurisdiction

The plaintiff asked the Court to declare that Order 1(d)’s reference to “Fit Out Works of the Anchor Unit (as defined in the Development Agreement)” should be read as the “Fit Out Works of the Store” and to make directions mandating completion of the entire store fit out. The Court rejected this for two reasons:

  • Working out vs. new issue: Liberty to apply permits the Court to assist in working out an order, not to determine a new controversy that was neither argued nor decided when the order was made (paras. 30, 34–36).
  • No definitional anchor in the agreement: The Development Agreement did not define “Anchor Unit”. The original litigation before Barniville J. did not decide whether the order required a complete fit out of the entire floor plate or allowed a smaller installation. To decide that now would be to resolve a new, unlitigated issue, impermissible under liberty to apply or inherent jurisdiction (paras. 31–35).

The Court emphasised that inherent jurisdiction, like liberty to apply, can be used to give effect to and implement earlier orders. It cannot be used to vary those orders or to impose new obligations that were not part of the judicial determination leading to those orders (paras. 34–35).

2) Contempt and Extension of Time

The factual setting was stark: the Court of Appeal had already extended the time to 10 June 2022, yet Dunnes did not commence on-site fit out works until 16 June 2022 and completed the smaller fit out on 27 July 2022 (paras. 38–39). The plaintiff sought a declaration of contempt for the delay and to refuse any extension.

The Court:

  • Recognised repeated and egregious delay, coupled with an absence of explanation, and expressed strong disapproval (paras. 38–39, 43).
  • Nevertheless found that, in context, a six-week overrun did not meet the high threshold for penal contempt (serious, outrageous, wilful, etc.) and could not be established beyond reasonable doubt (paras. 40–42).
  • Granted a retrospective extension of time to 27 July 2022 to regularise compliance, while explicitly stating that this was not an approbation of Dunnes’ conduct (paras. 42–43, 50(1)).

3) Costs as a Regulatory Tool

Applying section 169(1) of the Legal Services Regulation Act 2015, the Court considered conduct before and during the proceedings, the reasonableness of pursuing issues, and case management conduct (paras. 44–46).

  • Extension motion: Plaintiff awarded its costs—Dunnes’ delay and breach of a court order made the plaintiff’s opposition reasonable (paras. 45–47, 50(2)).
  • Contempt motion: Indicative view that each side should bear its own costs, reflecting the complexity of issues and the role of the contempt motion in catalysing eventual compliance; the Court invited further submissions (paras. 48–49, 50(4)).

Impact and Future Significance

1) Clear Limits on Post‑Judgment “Clarification”

The decision reaffirms and sharpens the practical boundary of the liberty to apply and inherent jurisdiction:

  • Permissible: Clarifying ambiguity that arises in working out or implementing an order already made.
  • Impermissible: Using post-judgment mechanisms to resolve an issue that was not raised, argued, and decided when the order was made—especially where doing so would effectively vary or enlarge the order.

Litigants can expect courts to be slow to “clarify” in a way that substantively changes the burden or reach of an order. If a party seeks a materially different obligation (e.g., mandating fit out of an entire store where the order did not squarely decide that), fresh proceedings, appropriate pleadings, or a variation application grounded in changed circumstances—not simply liberty to apply—will be required.

2) Drafting Lessons for Commercial Agreements and Orders

  • Contractual precision: The absence of a definition for “Anchor Unit” proved fatal to a contempt finding and to post-judgment efforts to enforce a full-store fit out. Parties should define key terms and minimum performance specifications to reduce enforcement risk.
  • Order clarity: When seeking mandatory orders, draft unambiguous relief that maps directly onto defined contractual obligations (e.g., explicitly require “fit out of the entire Store,” with floor area particulars, if that is intended).

3) Enforcement Strategy: Contempt vs. Costs

The case illustrates a calibrated enforcement response:

  • Contempt remains exceptional: The criminal standard and seriousness threshold will screen out many delay-only breaches, particularly where eventual compliance occurs.
  • Costs as sanction: Courts may use costs orders to reflect disapproval of non-compliance and dilatory conduct even where contempt is not found.
  • Retrospective extensions: Courts may regularise late compliance retrospectively, which promotes legal certainty while still permitting costs consequences for wrongful delay.

4) Practical Litigation Conduct

  • Apply early for extensions: If a deadline cannot be met, move promptly for an extension with cogent reasons. Late applications invite adverse costs, even if time is ultimately extended.
  • Use of contempt as leverage: The judgment acknowledges that the contempt motion likely “prodded” compliance; however, success is not guaranteed where ambiguity clouds the underlying obligation or the breach lacks the requisite seriousness.

Complex Concepts Simplified

  • Liberty to apply:
    • A procedural doorway allowing parties to return to court to iron out practical or interpretive issues in implementing an order.
    • It is not a means of expanding or rewriting the order to cover issues that were not decided in the original ruling.
  • Inherent jurisdiction:
    • The court’s power to control its process and ensure its orders are effective.
    • It supports enforcement and implementation but does not authorise the court to decide new issues outside the scope of the original determination.
  • Contempt of court:
    • A serious sanction for disobedience of court orders. Because it can lead to penal consequences, it must be proven beyond a reasonable doubt.
    • Conduct must be serious, wilful, or a gross affront to the court—mere delay, without more, may not qualify.
  • Penal vs. coercive contempt:
    • Penal contempt punishes past disobedience; coercive contempt compels future compliance.
    • Where compliance has occurred (even late), penal contempt may be the only remaining route—and that bar is set high.
  • Retrospective extension of time:
    • Courts can extend a deadline after it has already expired, effectively regularising late compliance.
    • This does not excuse prior conduct; the court may still mark disapproval through costs.
  • “Anchor Unit” vs. “Store” and “fit out works”:
    • “Store” was defined in the Development Agreement; “Anchor Unit” was not.
    • “Fit out works” were defined by reference to what Dunnes may require in connection with use and enjoyment of the Store (Clause 1.38). An earlier court rejected Dunnes’ argument that this eliminated any obligation to fit out, but it did not decide whether the fit out must cover the entire floor area.
  • Section 169 Legal Services Regulation Act 2015:
    • Allows the court to depart from “costs follow the event” and consider conduct, reasonableness, and case management in making costs orders.

Conclusion

Point Village v Dunnes clarifies two practical pillars of post-judgment practice in Ireland:

  • Liberty to apply and inherent jurisdiction are not backdoors to recast final orders or adjudicate unlitigated issues. They exist to work out and implement orders, not to rewrite them.
  • Time can be retrospectively extended to regularise late compliance, but serious delay—especially after an appellate extension—will draw judicial censure and adverse costs, even where contempt is not established.

Substantively, the decision underscores the decisive role of contractual clarity and precise order-drafting in enforcement. Procedurally, it illustrates a measured judicial response: reserve penal contempt for truly egregious cases; promote eventual compliance; and deploy costs to reflect litigation conduct and uphold the authority of court orders. For commercial litigators and drafters, the message is plain: define obligations meticulously at the contract and order-drafting stages, move promptly for relief when deadlines slip, and do not expect liberty to apply or inherent jurisdiction to supply what the original litigation did not decide.

Case Details

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