Summary Judgment in Commercial Lease Disputes: BVK Elektra v Elite Gastrobars

In a judgment delivered on 23 July 2025, Mr Justice Barry O’Donnell reaffirmed the legal principles governing summary judgment proceedings in landlord and tenant disputes.

Background

The Plaintiff, BVK Elektra 2 Liffey Phase 1 ICAV, is the freehold owner of Liffey Valley Shopping Centre and sought €276,041.44 in arrears of rent and other charges from the Defendant, Elite Gastrobars Limited, in respect of a restaurant unit, which it leased under a 20 year agreement dated 15 November 2016. The lease was originally executed between Liffey Valley Limited as landlord, Elite Gastrobars as tenant, and Bunker Estates Limited as guarantor. The Plaintiff subsequently acquired the freehold interest and was registered as owner in August 2020. The second defendant, Bunker Estates, the guarantor under the lease and was later dissolved and the proceedings continued solely against the first defendant.

The arrears arose from August 2020, coinciding with the Plaintiff’s registration as owner and the imposition of COVID-19 restrictions, which the Defendant contended had significantly disrupted its business operations.

The Court was asked to consider whether summary judgment should be granted or whether the case be remitted to a full plenary hearing. The Defendant raised multiple points of contention, which were refined for the hearing into three principal issues:

1. The adequacy of the Plaintiff’s accounts and explanation of figures claimed;
2. The entitlement of the Plaintiff to act as landlord and seek recovery; and
3. The interpretation of lease clauses concerning insurance obligations and the suspension of rent due to business interruption caused by COVID-19.

Accuracy of Figures

The Defendant also sought to challenge inconsistencies in the Plaintiff’s rental and service charge statements. The Defendant, pointed to specific entries in the statement of arrears that appeared unclear. These included issues with the transfer of service charges from the previous landlord, duplicated rent charges and reversals, and the application of credits.

The Court considered the evidence from a director of the Plaintiff and an external property manager. The evidence clarified the contested entries, offering detailed explanations for each questioned item. The judge emphasised that while the Defendant critiqued the clarity of the accounts, it failed to produce an alternative set of figures or any financial analysis contradicting the amounts claim by the Plaintiff.

Plaintiff’s Status as Landlord

The Defendant initially contested the Plaintiff’s legal capacity to act as landlord and recover rent, arguing that the documentation establishing title was insufficient. However, the Plaintiff exhibited the relevant folio showing its registration as the freehold owner from August 2020 and relied on Section 31 of the Registration of Title Act 1964, which treats such folios as conclusive evidence of ownership. The Court agreed, holding that the Defendant’s challenge could not stand given the documentary proof and the Defendant’s own subsequent participation in a rent review process with the Plaintiff. Notably, the Court stated that it would have preferred the Plaintiff to provide additional evidence of title.

Business Interruption

The most legally complex argument related to whether the lease required the landlord to procure business interruption insurance covering pandemic related losses, and whether rent was properly payable during periods when access to the premises was restricted due to public health measures.

The lease required the landlord to insure against “Insured Risks,” defined as including damage caused by fire, flood, explosion, and similar physical events. The Defendant contended that the lease should be interpreted as requiring cover for non-physical risks such as pandemic related closures, and that the landlord’s failure to procure such insurance breached the lease.

The Court firmly rejected this interpretation and found that the lease was plainly directed toward physical damage. The reference to “such other risks as the Landlord may from time to time consider prudent or desirable” did not impose a mandatory duty to insure against novel risks like pandemic closures.

The Defendant argued that COVID-19 restrictions qualified as a scenario where access was prevented under the terms of the lease citing provision which suspended rent if the premises was destroyed or damaged. The Court held that such provisions, when read in their entirety, referred to physical prevention of access caused by insured risks. Consequently, the COVID-19 closure did not trigger the rent suspension clause.

Legal Principles

The court reaffirmed the standard test for summary judgment articulated in Harrisrange Ltd v Duncan [2003] 4 I.R. 1 and Aer Rianta v Aer Lingus Ltd [2001] 4 I.R. 607. A plaintiff must demonstrate entitlement to judgment, while the defendant must establish a “fair or reasonable probability of having a real or bona fide defence” to succeed in resisting summary relief. As Hardiman J put it in Aer Rianta, the key question is whether it is “very clear” that a defendant has no case.

The Court also cited Oyster Shuckers Ltd v Agriculture Manufacture Support (EU) Ltd [2020] IEHC 527, where Sanfey J. rejected a similar attempt to rely on a rent suspension clause during pandemic restrictions. Additionally, the court referred to the English Court of Appeal decision in Bank of New York Mellon v Cine-UK Ltd [2022] EWCA Civ 1021, which likewise held that COVID-related closures did not fall within the scope of clauses contemplating physical loss or damage.

Conclusion

The Court granted summary judgment in favour of the Plaintiff for the full amount of €276,041.44 with a determination on the costs of the proceedings to follow. The Court found that the Defendant had failed to identify any triable issue of fact or law that could justify a plenary hearing. The judgment provides welcome certainty for commercial landlords and shows the Court’s willingness to enforce the terms of commercial leases by granting summary judgment.

If you would like further information on any of the issues raised in this article, please contact Jeremy Erwin jerwin@hayes-solicitors.ie or Ross Magee rmagee@hayes-solicitors.ie.