Trial judge did not err in interpreting the meaning of a restrictive covenant

Court of Appeal - 3rd June, 2022 - Sanfey J. judgment - 15th July, 2022 - follow-up judgment relating to orders and costs - appeal regarding word "groceries" in restrictive covenant in indenture of lease - Mr. Price prevented from selling "food, food products or groceries" - 19th December, 2005 and 14th February, 2008 - leases - restrictive covenants - 29th October, 2020 and 6th November, 2020 - Dunnes Stores manager sees "food, food products and groceries" for sale - 10th November, 2020 - both sides exchange letters regarding the phrase "groceries" - 12th November, 2020 - plenary summons - 17th November, 2020 - notice of motion - interlocutory relief sought - 3rd December, 2020 - Allen J. refused interlocutory relief - statement of claim - sought a meaning for the phrase - Kantal Worldpanel market analysts referred to - Sanfey J. said no witness called from Kantar - issue in relation to ambiguity of the word "groceries" and what it actually means - judge did not have regard to affidavit evidence - had more regard to the numerous respondent witnesses called - Mr. Malachy O'Connor evidence as to meaning of word - encompasses more than food and drink - rejected defendant's belief groceries meant food or food products - appellant also called witnesses - no dispute as to meaning of restrictive covenant - trial judge said second named appellant is variety discount retailer - restrictive covenants included due to obligation on lessor to pursue rights - Dunnes Stores is anchor tenant in Barrow Valley - wanted protection from competition - trial judge held groceries includes "non-durable consumable household items which are purchased frequently" - all items at paragraph 9 of statement of claim - made order accordingly - appellants argued wrong interpretation - trial judge was correct - not wrong under "text in context" argument either - noscitur a sociis - a word is know by its companions - ejusdem generis - where general word follows a number of them it can be held to have the same meaning - objection argument not in ground of appeal - for this reason and on merits this argument does not stand - wasn't such ambiguity to permit the court to adopt a contra proferentem construction - regard had to negotiations - trial judge addressed meaning in relation to groceries business - breadth of interpretation and uncertainty in declarations - argument rejected - based on conjecture - trial judge said word meaning could change over time - parties couldn't agree terms of an order - it was clear what "included" items were - accepted expert evidence where opinion not given - picking one expert's evidence over another is to be expected - appeal allowed only to insert words "provided that such items are non-durable" to original order - Legal Services Regulation Act, 2015 - section 169(1) - 90% of costs to respondent - short costs hearing arranged - appeal dismissed.