Anonymized Summary of High Court (Commercial) Judgment

Factual and Procedural Background

Judge Sanfey delivered this judgment on 4 September 2025. The matter arises from an application by the Plaintiff seeking a declaration that the Defendant was in contempt of an order of the High Court made by Judge Barniville on 20 October 2021, as amended by the Court of Appeal on 28 January 2022 (together "the Orders"). The central allegation in the original application was that the Defendant breached paragraph 1(d) of the Orders by failing "to procure the execution and completion of the Fit Out Works of the Anchor Unit (as defined in the Development Agreement), in accordance with Clause 11.5 of the Development Agreement within 26 weeks of 10 December 2021" (as presented in the main judgment).

In a prior (main) judgment delivered on 10 April 2025, Judge Sanfey found that the Plaintiff had not proven beyond reasonable doubt that the Defendant was in contempt because the fitout ultimately installed covered a substantially smaller area than the total floor area available for the unit and the term "Anchor Unit" was ambiguous in the Agreement. The Defendant conceded it had not complied with the temporal requirement of paragraph 1(d), acknowledging that the fitout was not completed until 27 July 2022—more than six weeks after the 10 June 2022 deadline. The Defendant had filed an application on 7 June 2022 to vary the Orders to extend the time for compliance to 27 July 2022 ("the extension motion").

Judge Sanfey reserved certain issues for further consideration, invited written submissions on any further orders, and heard oral argument on 25 June 2025. The parties provided written submissions (the Plaintiff was permitted retrospectively to exceed a word limit), and the present judgment addresses the remaining issues arising from those submissions and the main judgment.

Legal Issues Presented

1. The Defendant's application for an extension of time to comply with paragraph 1(d) of the Orders (the extension motion).
2. Whether the court should interpret or "clarify" the effect of the Orders—specifically, whether the Orders require the Defendant to procure the fitout of the entire Store (as defined in the Development Agreement) rather than a smaller area.
3. Costs arising from the extension motion and the contempt motion.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff argued that the Defendant's application to amend the Orders to extend time should be refused and sought a declaration that the Defendant was in contempt for failing to complete, or even commence, the works within the time stipulated (written submissions, para. 20).
• The Plaintiff contended that, if contempt could not be established beyond reasonable doubt, the Court should nonetheless clarify the effect of the Orders and make further directions to ensure compliance; the Plaintiff's position was that the Orders required the Defendant to fit out the entire Store (written submissions, paras. 39–41).
• The Plaintiff submitted there was no "good reason" to extend time, noting that the deadline had previously been extended by the Court of Appeal, and that the Defendant's delays were entirely of its own making; the Plaintiff relied on prior judicial characterisations of the delay as "enormous" and "extraordinary" and pointed out that the fitout was contractually required to be finished in September 2016 (written submissions, paras. 15–19).
• Oral submissions by Attorney Doherty described the conduct as "a serious contempt" and emphasised that the Defendant knew what was required of it (transcript references in the judgment).

Defendant's Arguments

• The Defendant accepted non‑compliance with the temporal aspect of paragraph 1(d) but emphasised that by the time the contempt motion was heard (28–29 July 2022) the fitout had been completed and the store had commenced trading; deponents apologised for the delay and highlighted the significant work and extra expense incurred to complete the works (written submissions, para. 28).
• The Defendant submitted that granting the extension would regularise its compliance with the Orders and suggested that the Court should make no order as to costs of the extension motion (written submissions, paras. 29–30).
• The Defendant opposed the Plaintiff's attempt to obtain a court "clarification" of the Orders, arguing that the critical question of whether the Orders required fitout of the entire Store had not been litigated and therefore was not a matter for the Court to decide under a liberty to apply or under the inherent jurisdiction; the Defendant relied on authorities to contend that liberty to apply does not permit revisiting matters not previously determined (written submissions, paras. 7–21).
• In oral argument Attorney Murphy submitted that not every failure to comply with an order amounts to contempt and characterised the present case as "something which is … falling short of contempt" (transcript references in the judgment).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Company A v. Company B [1998] IEHC 203	The judgment (Judge McCracken) and an extract from Halsbury's Laws of England were cited for the proposition that "liberty to apply" permits parties to return to court to work out the rights declared by an order — to clarify its extent or application — but "does not enable the Court to deal with matters which do not arise in the course of working out the judgment, or to vary the terms of the order except possibly on proof of change of circumstances."	The Court relied on this authority to conclude that the Plaintiff could not use a liberty to apply simply to decide a new substantive issue (the extent of the fitout obligation) that had not been the subject of the original determination.
Company C v. Company D (Unreported, High Court, 28 July 1983)	Judge Gannon's judgment was cited for the statement that the "liberty to apply" wording is used to enable further application for implementation (enforcement, variation or suspension) of an order but is not a mechanism for revising the court's decision or entertaining further matters omitted from the original proceedings.	The Court relied on this passage to reinforce the view that liberty to apply is for implementation of an order and not for introducing or resolving new disputes that were not before the original court.
Company E v. Company F [2014] 3 IR 143	Judge McKechnie's statement of principle was cited for the high threshold required for a penal contempt finding: a penal sanction must be established beyond reasonable doubt and the conduct must be "serious" or "outrageous" or "wilful" or "deliberate" or amount to a "gross affront" to the integrity of the court (para. 133 of that report).	The Court applied this standard when deciding that, although the Defendant's delay was significant and reprehensible, a six‑week delay in the context of a long‑running commercial dispute did not meet the threshold for a penal contempt finding or penal sanction.
Company G v. Company H [2025] IEHC 465	This later decision was noted as having cited the passage from Company E and was used to situate the standard for penal contempt in subsequent authority (the judgment records that Company E was cited by that Court at para. 70).	The Court referenced this authority as supporting the established high threshold for penal contempt and to corroborate the Court's conclusion on the insufficiency of the six‑week delay to warrant a penal sanction.

Court's Reasoning and Analysis

The Court's analysis follows from its earlier (main) judgment and is focused on three linked questions: (i) whether the Plaintiff had established contempt; (ii) whether the Court could "clarify" the Orders by way of a liberty to apply or inherent jurisdiction; and (iii) whether the extension of time should be granted and what costs orders should follow.

Ambiguity and standard of proof: The Court reiterated that Order 1(d) refers to the "Fit Out Works of the Anchor Unit" but that the Development Agreement did not define "Anchor Unit". This ambiguity meant the Plaintiff could not prove beyond reasonable doubt that fitting out a much smaller area amounted to contempt. The Court emphasised that penal sanctions for contempt require proof beyond reasonable doubt and a high threshold of culpability, citing established authorities.

Liberty to apply and inherent jurisdiction: The Plaintiff sought to rely on the Court's inherent jurisdiction and on the "liberty to apply" language in the Orders to obtain a declaration clarifying that Order 1(d) required a fitout of the entire Store. The Court reviewed authorities addressing the ambit of a liberty to apply (Company A and Company C) and concluded that while a liberty to apply permits parties to return to Court to work out and implement an order, it does not permit the Court to decide new issues that were not before the court when the original order was made. The Court also held that the inherent jurisdiction is concerned with enforcement and cannot be used to decide issues that were not previously determined and thereby effectively vary the original order.

Application to the facts: Because the issue of whether the Agreement required a fitout of the entire floor area was not litigated before Judge Barniville, the Court could not treat the Plaintiff's proposed declaration as a permissible "clarification" of the Orders. The question was, the Court held, a new substantive issue rather than a matter arising in the course of working out the earlier judgment.

Extension of time: On the extension application the Court noted the Defendant's eventual completion of the fitout and the efforts and expense incurred. The Court also found significant and repeated delay by the Defendant in complying with the Orders and no adequate explanation for that delay. Nevertheless, applying its discretion and the high standard required for penal contempt, the Court concluded that a six‑week delay in the broader context did not merit a penal sanction. The Court therefore retrospectively extended the time for compliance with paragraph 1(d) to 27 July 2022 for the sake of good order, while expressly disavowing any approbation of the Defendant's conduct.

Costs: The Court applied the factors in section 169(1) of the Legal Services Regulation Act 2015 (conduct before and during the proceedings; reasonableness in raising, pursuing or contesting issues; and manner of conduct). The Court ruled that the Plaintiff was entitled to its costs of the extension motion (to be adjudicated in default of agreement). As to the costs of the contempt motion, the Court expressed an indicative view that each side should bear its own costs but allowed the parties an opportunity to make further submissions, to be heard on 8 October 2025.

Holding and Implications

Final disposition (core rulings):

• Extension of time granted: The Court retrospectively extended the time for execution and completion of the fitout works required by paragraph 1(d) of the Orders so that the relevant deadline is 27 July 2022.
• Costs of the extension motion: The Plaintiff is entitled to its costs of the extension motion; those costs are to be adjudicated in default of agreement.
• Clarification refused: The Court declined the Plaintiff's request to "clarify the effect of the Orders" in the manner sought; the Court will not decide the substantive question whether the Orders required a full‑floor fitout, because that question was not previously determined.
• Further procedure: The Court will hear submissions on the costs of the contempt motion (and any other orders the parties consider necessary) at 10.30 am on Wednesday 8 October 2025.

Practical implications:

• The direct consequence is that the Defendant's deadline for compliance is treated as 27 July 2022 and the Defendant must pay the Plaintiff's costs in respect of the extension motion unless the parties agree otherwise.
• The Court refused to resolve the outstanding substantive issue about the scope of the fitout obligation by way of a liberty to apply or inherent jurisdiction; that substantive question remains undetermined by these proceedings.
• The Court applied established authorities concerning the limits of "liberty to apply" and the high threshold for a penal contempt finding; the Court criticised the Defendant's delays but did not impose a penal sanction for contempt in respect of the six‑week delay.