“From the state of the property, something has to be done,” Justice David Barniville urged upon the parties during last Monday’s Commercial Court hearing.

After 25 years of the historic Iveagh Market lying empty, it is easy to understand the judge’s concern. But charting a future course for this iconic, listed structure in the Liberties in Dublin has at times seemed like an intractable hand-wringer of a problem.

In 2019, an architectural study found the building was unsafe and in an advanced state of dereliction due to serious neglect and several damaging interventions.

Now the market is the subject of three separate High Court actions brought by businessman Martin Keane against Dublin City Council (DCC) and Arthur Guinness, the fourth Earl of Iveagh.

The Guinness heir repossessed the building on December 8 over concerns about its condition. Because it has not been redeveloped under the council’s stewardship, he claims ownership of the market has reverted to him under a clause dating back to 1906 when his family gifted the use of the purpose-built market to Dublin Corporation. It was bestowed on the authorities to house market traders displaced by the building of the nearby Iveagh Trust on Patrick Street.

The Edwardian market with separate halls for wet and dry goods thrived for many years before stuttering to a close in the 1990s. The building had become rundown and no longer met modern health and safety standards.

Dublin City Council sought to regenerate the Francis Street premises through private development. It favoured proposals put forward by Martin Keane, the successful businessman behind Club M, Blooms Hotel, and the Oliver St John Gogarty in Temple Bar – famed for its late-night €8 euro pints. Keane secured a long-term lease on the site in 1997 and later won planning approval in 2007 to develop the market and the nearby Mother Redcaps venue. But the project never bore fruit, partly due to the chill economic effects of the recession.

Twice the planning permission lapsed, once in 2012 when it was extended for five years and then again permanently in August 2017. When Keane came knocking with new proposals in 2019, Dublin City Council turned him down prompting the current round of High Court proceedings against the local authority.

The takeover

Iveagh Market. Pic. Bryan Meade

But while that dispute rolled on the question remained, what to do with a shut-up market, covered inside by a rash of vegetation? If that sounded like a long-term or nebulous concern, it crystallised pretty fast when Lord Iveagh reclaimed the Liberties market bearing his name last month.

A Christmas tree was placed outside the Francis Street entrance  near a hand-painted multi-coloured sign that said “reclaim the Iveagh Market. My market. Your market. Our market! Save our community”. 

Keane, the developer, found himself fighting legal battles on two fronts. He instigated a suit claiming Arthur Guinness unlawfully seized the premises and is little more than a trespasser. He alleged that a “gang of men” acting on behalf of Lord Iveagh forcibly entered the market under cover of darkness and replaced the locks on the gates.

Keane is seeking a court order to take back possession of the market, claiming damages for trespass, unlawful interference with his business relations, and slander – over allegations Guinness has given a disparaging and inaccurate account of events to date.

The Guinness heir plans to fully contest the case and has sought to have the row fast-tracked into the Commercial division of the High Court to ensure its speedy resolution – Lord Iveagh argues that any delays in resolving the dispute would hamper his ability to set about urgently restoring the buildings. Entry to the Commercial Court was vigorously opposed by Keane’s lawyers on Monday because of the potential impact it might have on the businessman’s complex planning actions against DCC.

Having heard both sides, Justice Barniville asked Keane to consider applying for all of his cases to ride together in the commercial list. Putting the matter back for a fortnight, he also urged the parties to consider mediation to resolve the dispute. The Currency understands a mediator has not been appointed but discussions among the litigants’ lawyers are due to take place this coming week.

While Keane’s case for damages against the Guinness heir is only in its infancy, a copious amount of documentation has already been placed before the court, reflecting the tortuous history of this Dublin landmark. What follows in this article is a look at the claims that have shaped the litigation to date, from concerns about dilapidation to the true effect of agreements Dublin City Council signed with the Guinness family interests back in 1997 and 2006.

The reverter

The reason Martin Keane claims the repossession of the market by Arthur Guinness is a forcible occupation relates to what is described as “the reverter” clause.

When the original Lord Iveagh gifted the use of the Iveagh Market to Dublin Corporation in 1906 it was with the condition that the lands would revert back to him if they stopped being used for the purposes specified in the deed. Keane claims this right of reversion was extinguished in an agreement the Guinness family struck with the council 100 years later.

There was a further proviso in the original 1906 conveyancing deed that would later become relevant – if the property reverted back to the Earl, he could give the local authority permission to use the lands and buildings for other purposes. 

This all sounds straightforward until you consider the impact of changes to Irish land law and succession law over the course of a century. What was the exact nature of the reverter clause? What sort of interest in a property did it bestow on the holder? How was it passed down through generations? The issue came to a head in the mid-1990s when Dublin Corporation decided to shut down the Iveagh Market being of the view the building required a complete overhaul.

When Martin Keane’s MK Slattery Ltd was chosent to construct a 36 bedroom hotel on part of the premises known as the disinfectant lands this amounted to a change of use. As their name suggests, the buildings had originally been designed as disinfecting chambers and washhouses to clean old clothes and carpets brought in for sale at the market. Dublin Corporation reached an agreement with members of the Guinness family in July 1997.

The court was told the latest findings indicate there has been significant further deterioration in the buildings’ structure, fabric, and finishes since 2019, and that this could have been avoided by taking appropriate steps

Keane claims the council paid around IR£100,000 to discharge the 1906 reverter on the disinfectant lands. He claims the Guinness family also released the Iveagh Market from the charitable purpose of the original gift. But this 1997 arrangement was later deemed defective. 

According to senior counsel George Brady, who was drafted in at the time, the whole site automatically reverted to the Guinnesses after the corporation pulled the plug on the market and set its sights on building a hotel in the 1990s. This was the legal opinion he offered to the estate of the second Lord Iveagh in 2001. 

But while it was clear from the wording of the 1906 deed that the council required a change of use consent to redevelop this part of the premises, legally it was not so obvious who had the authority to give that consent. Was it the estate of the second earl Rupert Edward Cecil Lee who died in 1967, or the third earl, the late Arthur Francis Benjamin? Interpreting the law was not a simple matter and Brady’s views were at odds with the opinion of a second senior counsel John Gordon. 

Even if the appropriate party was identified and proved happy to allow a hotel developer to move in, there were question marks about how this might affect the title to the property.

The 2006 arrangement

Iveagh Market. Pic. Bryan Meade

The conundrum was evident to the parties who in 2006 arrived at a follow-up deal in respect of the deeds. According to Keane, Dublin City Council obtained a release agreement intended to “box off” the Guinness family interests and guard against any future claims that a reverter had taken place or could take place in respect of the disinfectant lands. The developer says the current heir Arthur Guinness was aware at the time that the purpose of the deeds was to facilitate the sale of the lands, and the transfer of the title, to Keane.

The businessman relies heavily on the 2006 deed in the legal filings before the court – although the deed itself does not appear to have been exhibited in the proceedings to date. Following Lord Iveagh’s recent repossession of the Iveagh Market on December 8, Keane’s lawyers claim the Guinness heir appears to have resiled from the deeds he and the Iveagh Estate entered into for “valuable consideration”. In legal correspondence his lawyers Smith Foy & Partners say it is now questionable whether Dublin City Council could ever have delivered a good marketable title to the developer.  They accuse the Guinness heir of completely disregarding the rights of the local authority.

However, Keane’s take on the 1997 and 2006 deeds is utterly rejected by Lord Iveagh’s lawyers who say Dublin City Council only ever held a conditional title subject to the original provisions agreed in 1906 made “in expectation of, and on the representations of all concerned that, the Iveagh Market and the Disinfectant Land would be redeveloped”.

It is the Guinness family’s position that if DCC ever had any authority to grant the businessman an interest in the Iveagh Market, that has now lapsed with the planning permission. The Guinness lawyers claim that the judicial review Keane lodged against DCC over his failed 2019 planning application is “now pointless” in the circumstances. 

As Dublin City Council is not a party to the current proceedings, its position in respect of the title is also not before the court at this juncture. In recent correspondence Keane’s law firm Smith Foy & Partners asks for clarity from the local authority on this issue. “If it is the case that Dublin City Council accepts there is a right of reverter, we call upon you to set out on what basis you do so. If you do not accept that there is a right of reverter, we are extremely concerned by the lack of apparent activity to address the preservation of the ownership of an asset which Dublin City Council previously claimed ownership of”, the letter requests.

Keane says his efforts to renovate the site “for many critical years” were frustrated by the council’s failure to evidence good marketable title for the property. He says this affected investment interest.

His position is that he handed over IR£700,000 to the corporation in 1997 for a lease on the market and paid a further sum of €888,816 in 2006 to buy out Dublin City Council’s residual freehold title. 

His plans then came unstuck by the economic collapse of 2008. By 2017, the planning permission he had been granted lapsed. When Keane brought a new plan to the table in 2019, DCC rejected it for want of sufficient interest.

In his legal action against the council, he alleges he has paid in full for a sales transaction DCC says it is not obliged to complete. 

Shocking condition

In an affidavit before the court last Monday, Arthur Guinness says he wants a court declaration that he is the rightful owner of the Iveagh Market which is currently in his possession on the basis that the council’s interest in the property has ceased.

The Guinness heir characterises Keane’s claims as “cynical and without merit”. He says they amount to “an orchestrated legal strategy to deflect from the shocking condition of the property, and to delay my attempts to restore and develop the property”.

The court heard the market buildings were filled with large amounts of rubbish and waste including broken washing machines and five-litre drums of used cooking oil and fat – Keane has said he doesn’t know how the drums got there.

Lord Iveagh says red bricks have been removed from the walls and stacked on upward of 28 pallets. Large metal shipping containers are also alleged to have been left on the site along with the wooden interior of one full pub, street furniture branded with “St John Gogarty Pub” in Temple Bar and what Guinness describes as “antiques of the sort used to fit out pubs”.

It is alleged the electrical installations found in the building were “perilously unsafe” to the extent the supply had to be terminated immediately. Guinness also raised concerns about the flammability of the items found on the site, particularly the used cooking oil vats. Keane denies treating the property inappropriately or that any of his companies carried out unlawful works there. 

Guinness says not only will he defend the proceedings fully, which he claims are baseless, he will counterclaim against the businessman for the cost of remediating the harm caused to the buildings as a result of Keane’s alleged neglect. He estimates the total cost of repair and restoration works may top €30 million. Essential structural repairs are likely to cost in excess of €13 million, the court was told.

Lord Iveagh says that he will apply for the lifting of a lis pendens on the property, a move made by Keane in separate proceedings against Dublin City Council. A lis pendens acts as a flag to any interested parties that the premises are the subject of a legal row.

Guinness also expresses concerns that Keane may not have the wherewithal to discharge any adverse legal costs order arising from the High Court clash.

In respect of the state of the building, Lord Iveagh says he has been advised that there may have been multiple breaches of various acts including laws around, planning, waste management and conservation. His lawyers have lodged complaints with the Environmental Protection Agency, ESB Networks, the National Monument Service, the Health and Safety Authority, the Dublin City Archaeologist and the planning enforcement and waste sections of Dublin City Council. 

In private hands

While the historic Iveagh Market is not at risk of imminent collapse, a new review by Bluett & O’Donovan architects finds immediate conservatory works are required to stop further deterioration of the protected structure.

The preliminary findings stem from an investigation commissioned by Lord Iveagh after he repossessed the buildings on December 8th. 

The team of experts and conservationists sent in to review the site included a licensed drone pilot, and the designer Diarmuid Gavin.

The interim report from Bluett updates the findings of a similar DCC commissioned study by Howley Hayes Architects in 2019 which concluded that the market was unsafe and in an advanced state of dereliction. The earlier study highlighted that the rainwater disposal system was dysfunctional and damaging the masonry walls and that ground floor slabs had been removed affecting the building’s stability. The roofs were found to be in extremely poor condition and while many of the original Westmoreland Green slate coverings had survived they were in a “very damaged and friable condition”. On a positive note, the Howley Hayes study found the damage could be fully repaired – at a cost of over €30 million.

The court was told the latest findings indicate there has been significant further deterioration in the buildings’ structure, fabric, and finishes since 2019, and that this could have been avoided by taking appropriate steps. The report raises concerns of possible non-compliances with the planning acts including broken windows and brickwork and ceramic tiles being removed in circumstances where no commencement notice for works to start was submitted to the council. For a listed building, the interim report also says there is “no evidence that conservation expertise has been brought to bear on the significant works to date”.

An archeological consultant concluded the site was at a “tipping point” and in “genuine peril”.

Findings include a concern that significant archaeological excavations in the market may be in jeopardy. The site runs close to the old city wall and may contain Anglo-Norman and early Viking moats that were filled in the fifteenth century.

In legal filings, Lord Iveagh says he plans to “undo the harm” of Keane’s alleged neglect but he does not set out specific plans.

Keane says the repossession of the markets by Lord Iveagh has the effect of taking them out of the public realm and into private ownership, but Guinness argues that the markets  – built as a charitable endeavour to address public health concerns and alleviate poverty around the Liberties in the early 1900s -have now been out of commission for a quarter of a century.

“I am advised that a restored and operational Iveagh Market will be of considerable amenity and financial benefit to the people of Dublin,” he states, adding that he exercised his alleged right of possession to ensure these elegant buildings don’t remain derelict and become a hazard to the public.

It should be noted that Keane takes issue with the claims of neglect levelled against him over the last two decades. He says he paid very substantial amounts to DCC and incurred substantial costs in relation to archaeological investigations which he says were properly carried out. He also takes issue with what he says is the delayed timing of Lord Iveagh’s intervention.

He denies the property has been treated inappropriately by him or his companies or that unlawful works have been carried out to the premises.

The complexities of the issues could result in an extensive court action or may yet be resolved in private behind closed doors.