BVK Elektra 2 Liffey Phase 1 ICAV v Elite Gastrobars Ltd & Bunker Estates Ltd (High Court, O'Donnell J., 23 July 2025)
Last week, Justice Barry O'Donnell (High Court) gave judgement in an application for summary judgement brought by BVK Elektra 2 Liffey Phase 1 ICAV -V - Elite Gastrobars Limited and Bunker Estates Limited.
This was a case where the landlord of Liffey Valley Shopping Centre, Dublin brought proceedings to recover Covid-era arrears of rent, service charge, insurance contributions and licence fee against one of its tenants.
Leaving aside technical issues regarding the proof of ownership of the Landlord, exactly what sums were to be recovered, and whether the defendant Tenant had raised sufficient issues to stop summary judgement being given against it, the most interesting point was that the Court rejected a claim by the Tenant Defendant that the Landlord should have put in place some form of business interruption insurance to cover the risk that rent could be lost due to circumstances such as the Covid restrictions, which temporarily banned the opening of the premises.
The Tenant had placed emphasis on words in the Lease re Insurance suspending the rent where all means of access to the premises were prevented by any of the specified insured risks. The Court however felt that a full reading of that clause meant that there would have to be physical damage or destruction to all or part of the premises, or that the means of access to the premises was physically prevented for a rent suspension to arise. The Court held that it did not follow however that rent would be suspended if access was prevented by public health restrictions. The Tenant also felt that the reference in the Lease to the Insured Risks including not just the specified risks, but also such other risks as the Landlord might from time to time consider prudent or desirable, should have required the Landlord to put in place cover against notifiable diseases. Although the Tenant had relied upon another High Court decision (of Butler J (High Court) in the matter of Lestown Property Limited in 2021) where the Landlord in that case had in fact obtained Insurance in respect of notifiable diseases which was understood as including Covid), the Court here did not feel that that decision operated in a way to require the High Court here to find in favour of Elite Gastro Bars Limited.
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