Last year, the High Court decided that only four of the windows were the property of RGRE Grafton Ltd, landlord of the premises. It ruled that the other two belonged to the tenant – Bewley’s Cafe Grafton Street (BCGS) Ltd, and its subsidiary Bewley’s Ltd.
The six windows are reckoned to be worth something in the region of €1m.
However RGRE appealed that High Court decision – and now Ms Justice Caroline Costello, on behalf of the three-judge court, has found that all six belong to RGRE Grafton.
She said the High Court was correct to conclude that four of the windows – known as the Four Orders, as they depicted four orders of classical architecture – were part and parcel of the premises. In law, she said they were and remained the property of the original landlord and his successors in title.
However, Ms Justice Costello ruled that the High Court judge erred in concluding that RGRE had failed to prove on the balance of probabilities that the two other windows – known as the Swan Yard windows, as they overlooked this yard – were also part and parcel of the building.
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The High Court erred in concluding that, instead, they were tenants’ fixtures and therefore the property of Bewley’s Ltd on foot of an assignment from Bewley’s Cafe Grafton Street.
In her judgment, Ms Justice Costello said RGRE Grafton had proved on the balance of probabilities, having regard to the totality of the evidence, that the Swan Yard works were part and parcel of the premises and thus were the landlord’s property.
She said the High Court judge’s conclusion was “based upon impermissible speculation” which must be rejected in light of the entirety of the evidence and the inferences which it is reasonable to draw from such evidence.
She allowed the appeal and rejected a cross appeal from the defendants in relation to the other four windows.
The judge had noted that a major difficulty in this case was the incomplete nature of the evidence and the resulting difficulty in resolving the legal issues presented.
Of necessity, the High Court and Court of Appeal were required to draw inferences from this incomplete picture.
“It need not be emphasised that great care must be taken in such a task,” she said.
Ms Justice Teresa Pilkington agreed with Ms Justice Costello, while Ms Justice Máire Whelan disagreed in a dissenting judgment.
Ms Justice Whelan said she would not only affirm the High Court order that the Swan Yard windows are owned by Bewleys Ltd but grant the cross appeal and declare that the Four Orders windows are also “tenant’s fixtures”.