One of the most important cases to be heard so far this year concerns the validity of  keep open clauses.  Can a landlord force a tenant to continuing trading? 

Supervalu has a keep open clause in their anchor store lease at Carlow Shopping Centre.  Notwithstanding this clause the tenant, Musgrave, decided to close their store as they had been suffering significant operating losses.  At no point was there any suggestion that the tenant would stop paying rent.  It simply wanted to cease trading.   In January, the owners of Carlow Shopping Centre  were unsuccessful when they tried to bring an injunction stopping  the tenant from closing its store. 

The court refused the injunction as it had grave concerns about forcing a business to continue trading at a loss.  Whilst the injunction was refused, the tenant was clearly in breach of it's tenant covenant to keep the unit open and trading.  The court decided that damages would be an adequate remedy to compensate the landlord for breach of covenant. 

What of the other retailers in the Centre?  Without a doubt their trade will be affected by the closure of the anchor store. Interesting this month a lawsuit taken by the Carlow retailers against Musgrave for damages  has been withdrawn.  No doubt some deal has been struck between the parties but the details of which will remain confidential.