Supermac’s boss Pat McDonagh has disputed a claim made in the High Court by former franchisees that they were unaware planners decided works on a new rival restaurant in an adjacent bowling centre in Limerick did not require planning permission.
Mr McDonagh and two of his companies, Supermac’s Ireland Ltd and Funworld Ireland Ltd, were sued by former Supermac’s franchisees John and Mary Lyons, who now operate “The Hungry Lyons” restaurant next door to Mr McDonagh’s Funworld bowling centre on the Ennis Road.
The Lyons held the Supermac’s franchise until 2019 when it ceased due to what they said was “commercial pressure” placed on them by the defendants.
Then, they claimed, Mr McDonagh decided to go into direct competition with them by operating a restaurant from the bowling alley premises, which forms part of the same building as the Lyons restaurant.
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They said this was in breach of their lease agreement which includes a non-compete clause that the landlord cannot assign or sublet any part of the premises for a fast-food restaurant or delicatessen.
After works were carried out to provide a restaurant in Funworld, including the closure of an interconnecting door, the Lyons sought an injunction from the Circuit Court declaring they were unauthorised.
The Circuit Court dismissed the application and the defendants then applied to Limerick City and County Council for retention of the works.
The Lyons lodged an appeal with the High Court and in the meantime the council told the defendants that planning permission was not needed for the interconnecting door.
The appeal was due to be heard earlier this month when the Lyons’ lawyer said it was being withdrawn but complained his side had only been informed of the council decision that the work was exempt a couple of days before the appeal was due to take place. The Lyons sought their costs in the case.
Counsel for the defendants said they assumed the Lyons already knew about the council decision and that the council would have informed them so as objectors.
Mr Justice Garrett Simons said he would give a written decision on costs after saying unauthorised development works had been carried out by the defendants and that the Circuit Court should not have dismissed the case.
The case returned before him on Thursday when he said he had put his judgment on hold after receiving correspondence from the parties on the matter.
James Charity BL, for the defendants, said the court had been supplied with a number of affidavits including one from Pat McDonagh.
In that affidavit, Mr McDonagh asserted the Lyons’ architect had told council planners last October that they were aware planners considered the subdivision of the bowling alley from the restaurant as not requiring permission.
He also said his in-house solicitor was informed by a council official that the Lyons’ side had been told of the decision (that it was exempt development) before the High Court hearing.
Daniel Cronin SC, for the Lyons, said he took issue with the fact that the defendants had the opportunity to clarify the matter when the Lyons side raised it with them before that hearing.
Mr Cronin said the Lyons architect spoke to a council official last October and he disputed the official’s view that it did not require permission. The architect asserted the first he knew of it was earlier this month when the defendants filed an affidavit.
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In his own affidavit, the Lyons architect said during the October conversation with the official he was not aware a decision had been made on an application to retain the works which had been lodged or at the time he (architect) made submissions on that application.
Mr Justice Simons said he was prepared to allow the defendants to obtain the planning file, or to subpoena the official involved to bring the file to court, to establish when the parties were informed of the planners’ decision.
However, he reminded the parties that this would simply build up more costs in the case.
The judge was told the defendants had already made an application under Freedom of Information, which was due to be made on April 16th, but they would also like to make an application to the court for “non-party” discovery. This means they can get an order requiring the council to provide the information to the court.
He adjourned the case to next month.
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