The High Court has struck out an application for an injunction by the owners of Dublin's Savoy Cinema over a plan to turn the former Screen Cinema site in Dublin 2 into a 500-seat entertainment venue.
The Dublin Cinema Group (DCG), which owns the Savoy in O'Connell Street, sought the injunction because it fears the Balark Group, to which the Screen was sold to in 2016, is going to open a cinema or theatre there.
DCG claimed, if that happened, it would breach a restrictive covenant in the sale agreement, which meant the Screen could not be used as a cinema or theatre until 2036.
The Screen site in Townsend Street is located close to the Savoy.
DCG says another cinema would substantially impair its interest in the Savoy.
Balark got planning permission to redevelop the site and the adjoining College House to include a 500-seat “entertainment venue”.
Businessman Paddy McKillen jnr’s Press Up Entertainment Group has expressed a desire to operate the venue.
DCG, after failing to get undertakings on the cinema/theatre covenant in relation to this planning permission, sued Balark Investments and Balark Trading GP.
It sought an injunction in relation to the implementing of the planning approval and declarations in relation to the restrictive covenant.
Balark then brought an application seeking to strike out the proceedings as unsustainable, bound to fail and conferred no practical benefit on DCG. The application was opposed by DCG.
During the hearing of that application, Balark gave an undertaking that a restrictive covenant in the sale agreement with DCG prevents the site’s use as a cinema/theatre and also applies to any successor in title.
Issue remained
The issue of the injunction remained and, on Wednesday, Mr Justice Michael Twomey ruled the application was bound to fail and said it must be struck out.
He said the court cannot see any legal basis for granting an injunction prohibiting construction, “as distinct from using”, the property as an entertainment venue.
The judge said it was possible DCG might be right not to trust Balark and it was possible Balark might be hoping or intending to use it as a cinema/theatre in the future if it transpires it is not in fact possible to use it as an entertainment venue without breaching the covenant and undertakings to the court.
It was also possible Balark might be intending this use in breach of those matters.
“However, that is a hypothetical situation which does not concern this court,” he said.
“It is not the purpose of the courts to police the intention or possible intentions, as distinct from the acts, of commercial parties”.
It is also not the court’s purpose to entertain or engage with possible future hypothetical situations, he said.
