Odyssey Cinemas Ltd and Village Theatres Three Ltd and Sheridan Millenium Ltd
| Jurisdiction | Northern Ireland |
| Judge | Deeny J |
| Judgment Date | 2010 |
| Neutral Citation | [2010] NICh 1 |
| Court | Chancery Division (Northern Ireland) |
| Year | 2010 |
| Date | 02 February 2010 |
1
Neutral Citation No: [2010] NICh 1 Ref:
DEE7609
Judgment: approved by the Court for handing down Delivered:
2/2/10
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
_______
CHANCERY DIVISION
________
2007 No. 67262
BETWEEN:
ODYSSEY CINEMAS LIMITED
Plaintiff;
-and-
VILLAGE THEATRES THREE LIMITED
Defendant;
-and-
SHERIDAN MILLENIUM LIMITED
Third Party.
________
DEENY J
[1] The Odyssey Centre is a large entertainment complex at Queen’s
Island, Belfast. Its ownership is multi layered but for the purposes of these
proceedings it is convenient to adopt the self-description by the Third Party
that it is the landlord of the Centre.
[2] A large part of the first floor of the complex on the River Lagan side is
given over to 12 cinemas with related spaces for the sale of tickets,
confectionary and beverages. The third party herein, Sheridan Millenium
Limited, on foot of the title enjoyed by it, agreed to lease the cinema area to
the defendant for the period of 25 years from 14 May 2001 (although the
actual lease was not executed until later). The defendant then operated the
cinemas, in conjunction with or through a company in the Warner Group
from shortly thereafter until 10 May 2006 when it entered into an agreement
2
with the plaintiff by which the plaintiff took an under lease of the cinema
premises. The defendant is part of a group of companies in the leisure field
based in Australia but active at that time in the United Kingdom.
[3] The plaintiff is a company formed for the purpose of this leasehold
interest but controlled by Mr Patrick O’Sullivan who is a guarantor of the
under lease of 10 May 2006. He operates the cinemas currently as Storm
Cinemas, a trading name used by him for a chain of cinemas he controls in the
Republic of Ireland.
[4] The plaintiff’s claim against the defendant is that the defendant was
guilty of misrepresentation which induced the plaintiff to enter into the under
lease. While there was an initial period of non payment of rent the on going
rent under the under lease is onerous. Some of that agreed rent is currently
due by the plaintiff to the defendant but not yet paid because of these
proceedings.
[5] Although the pleadings initially alleged fraudulent misrepresentation
only against the defendant the plaintiff was ultimately given leave at a late
stage to amend its pleadings to rely on an allegation of negligent
misrepresentation against the defendant within the meaning of the
Misrepresentation (Northern Ireland) Act 1967. At the conclusion of the
plaintiff’s case, in the face of an application from Mr Mark Orr QC on behalf
of the defendant, Mr Kirk Reynolds QC for the plaintiff conceded, rightly in
the face of the evidence he had called, that the allegation of fraudulent
misrepresentation could only be read as meaning reckless rather than
deliberately fraudulent misrepresentation, on foot of the decision of the court
in Derry v. Peake [1889] LR 14 App Cases 337.
[6] Although a number of other matters were canvassed in the pleadings
these were not pursued at trial. In particular, Mr Reynolds withdrew the
allegation made with regard to the car park of the premises, when opening
the action. The thrust of the case from the plaintiff was that the cinemas had
been subjected to serious, persistent and longstanding noise problems giving
rise to complaints and disputes from very soon after the time that they had
opened. It was alleged that this was not disclosed to the plaintiff. It was
alleged that the non disclosure amounted to recklessness, or if not, to
negligence on the part of the defendant. The plaintiff made it clear that the
remedy which the plaintiff earnestly sought was the rescission of the under
lease because of this misrepresentation.
[7] The noise of which the Plaintiff complains emanates from licensed
premises underneath Screens 1, 6 and 7 of the cinemas. One of these, Bar 7, is
operated by Strike Four (Belfast) Limited. The court was informed that it is a
subsidiary of Sheridan Entertainments Limited a company linked to the third
party. Those premises opened in March 2002, after the opening of the
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