It seems like a lifetime ago.

On February 27, 2008, a contract was signed between Dunnes Stores and Point Village Development Limited (PVDL) to become an anchor tenant in Point Square, the retail wing of Harry Crosbie’s ambitious plan to transform the areas around the Point Depot into a village of shops, homes, offices, restaurants and cafes.

It was a perfect marriage of the times: Dunnes Stores embodies Irish retail success while Crosbie believed his development could tap into the lucrative catchment of 65,000 people living in the area, an Irish “coastal wealth belt” between Clontarf and Sandymount.

The signature building was to be a 40-storey high rise tower known as the Watchtower, which was designed to complement the proposed U2 tower on the other side of the Liffey.

Dunnes would be the key tenant at the heart of the Point Village, while the developer was meant to receive €46 million, in phased payments, for the construction of the store.

That was then; this is now. The deal never materialised and has instead been the subject of a messy 11 barrage of litigation. In the meantime, Crosbie lost control of his marquee development, with Nama installing receivers over large portions of his life’s work. Nama, however, continued the court case, opting not to sell the prized asset until the courtroom action with Dunnes Stores was ended.

Now, however, it has changed tact. The litigation has gone on too long and shows no sign of ending. It has already sold the Point Depot, now the Three Aerna, as well as the adjacent Gibson Hotel. Now, In the coming months, it will market the shopping centre and other related buildings. On a good day, sources say it could fetch more than €100 million.

Whoever buys it will have to make a decision on whether to keep the Dunnes action alive. The money at stake is significant, but any buyer will know that Dunne, led by the teak tough Margaret Heffernan, will not bow down lightly.

So, just how did we get here and what happens next?

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The promoters of Point Village designed it to be the city’s answer to Canary Wharf, an upmarket €850 million development “at the centre of Dublin’s coastal wealth belt” drawing high-value shoppers beyond the immediate Docklands catchment area from Clontarf to Sandymount.

As the story goes, Dunnes Stores was happy to be the anchor tenant for Point Village. But the timings were all wrong. The crash happened and the economy nosedived.

By February 2009, the cold winds of the recession were beginning to bite hard. The development of the project began to hit bumps in the road. Crosbie brought Dunnes to the High Court claiming the retail chain had not paid for construction works already completed at the 12-acre site.

Talks led to an accord. To solve the dispute both parties entered into a Settlement Agreement in 2010. This resulted in important changes to the terms of the original tenancy deal. The original cost of construction that Dunnes had to pay dropped from €46 million to €31 million. The obligation on PVD to build the Watchtower was taken off the table. There was also a clause in the agreement obliging Dunnes to pay €3 million to the PVDL architect, Scott Tallon Walker, within five working days of Dunnes receiving a certificate confirming Point Square had been completed in accordance with the Development Agreement. 

The Point Village Development was back on track.

But the fragile peace didn’t last. The dispute kept ping-ponging in and out of court, growing more nuanced over time as the respective parties held their corners.

Even the cast of characters changed as Crosbie’s property empire succumbed to Nama appointed receivers Paul McCann and Stephen Tennant in 2013 over a €450 million debt. In 2014, Crosbie’s solicitor wrote a letter to Nama stating which assets they could recover the money from. Point Village was one of these assets.

Crosbie agreed to have no further engagement with Dunnes Stores or with Dunnes’ chief executive, Margaret Heffernan in relation to the ongoing legal disputes to do with Point Village.

There were supplementary terms agreed along the way. But the dispute continued with a recent Supreme Court ruling hinging on an independent expert and the final €3 million sign off payment Dunnes was obliged to pay on completion of the development.

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So what happened after round one in the courts settled back in 2010?

Further hostilities broke out in the High Court as Dunnes was accused of stymying the development by failing to fit out its store on time. The two sides disagreed on whether April 2011 was the agreed deadline for completion. Dunnes was unhappy at moving into a largely vacant development. The result was something of a draw as Dunnes was ordered to furnish the store but only when seven other tenants had been secured for the retail outlet.

Again that was nowhere near the end of it. 

In 2018, the receivers of the Point Village Development were still complaining in court proceedings that Dunnes had taken “no steps whatsoever” to fit out the store. The court heard Dunnes had paid up €11.8 million in 2010 towards the costs of construction but nothing after that. The Irish retail chain had its own grievance. It claimed PVDL had agreed in the 2008 contract to secure “high end” tenants in the shopping centre. Until this obligation was met, it was loath to pay up more money.

When the Nama receivers appointed over Crosbie’s assets asked Dunnes to pay the full amount they believed to be owed, €15.5 million plus interest, Dunnes representatives then said it would be “inappropriate” to pay the outstanding monies while the two parties were in a dispute.

Despite its best efforts to put forward a case to avoid paying, a High Court judgment in 2017 by Ms Justice Caroline Costello agreed with those involved in the Point Village, that the terms of the settlement had been met and Dunnes needed to pay what was owed. This was upheld on appeal, with Justice Maire Whelan finding an Alice in Wonderland quality to the way Dunnes sought to have the deal interpreted.

So why didn’t the row end there? Why did there need to be a judgment on the appointment of an independent expert? Again, it goes back to the terms of the Settlement Agreement, Clause 11(d) and the €3 million sign-off payment. 

In the most recent iteration of the row, Paul McCann and Stephen Tennant, the joint receivers appointed by Nama in 2013 to oversee assets belonging to Harry Crosbie claimed Dunnes needed to pay the €3 million to an architect.  

But was the development finished?

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It is not in dispute between the parties that on March 15, 2013 the Point Village’s architect, Scott Tallon Walker, produced a certificate certifying that “the Point Square has been completed in accordance with the Development Agreement.” This was sent to Dunnes with a letter of demand for €3 million. Dunnes refused to release the funds on the basis that “no supporting documentation or verification whatsoever has been supplied .. . to vouch the contents of the certificate or to provide evidence that Point Square has been completed”.

A further cert was issued but again Dunnes questioned the validity of the documentation.

The two parties returned to the courts again.

Under the terms of a back-up provision in the 2010 settlement, it had been stipulated that in the event of a dispute, an independent architect could be engaged, to help resolve differences as to whether the development of Point Square was completed to agreed standards. The use of independent experts can be an efficient way of resolving rows. The architect chosen by the president of the Royal Institute of Architects was Anthony Reddy.

The problem? How does an architect decide the project was developed correctly?

At the core of the dispute was the stipulation in the original development agreement that the decision and specification for Point Square would be to a “first class standard appropriate to a prestigious shopping centre”.

Dunnes reached out to DMOD Architects to back up their belief that the Point Square was not developed under the terms agreed to. In a letter to Reddy, DMOD wrote that Point Square was to be a shopping centre similar to that of Eyre Square in Galway, Grand Canal Square and the Civic Plaza in Dundrum in Dublin.

“It is our opinion that Point Square, as currently laid out, bears no resemblance either in urban design terms or in the quality of overall specification to that which the developer was contractually obliged to provide pursuant to the provisions clause 7.71 and 7.72.,” was written in the letter. 

Scott Tallon Walker obviously made its own case to Reddy as well in which the firm stated “these are four entirely different spaces with different design criteria. Attempting to compare the designs of these spaces with the design of Point Square is completely subjective.”  The firm argued that the intention of using comparators like Eyre Square and Dundrum was to determine the quality and type of materials to be used i.e. natural stone; good quality lighting and soft landscaping.

Not backing down, Dunnes went the legal route and issued proceedings in November 2014 seeking a declaration that the development was not in compliance with the agreement. Company secretary of Dunnes, Tom Sheridan said that Scott Tallon Walker sought to place an interpretation on the terms agreed to under the Development Agreement.

The receivers responded to the legal strike by seeking to stay the court proceedings. The High Court refused the stay application but the Court of Appeal not only overturned that decision, it ruled to strike out Dunnes’ case.

In the meantime, the work of Reddy, the independent expert, was paused.

A key part of the legal row was the question raised by Dunnes as to whether Reddy was competent to determine what could be framed as a contractual row between the parties. Arguably such matters are for the courts. It was this discrete point of law that drove the case all the way to the Supreme Court.

“At the heart of this case is the question of the extent to which an expert can decide questions of law or whether it is appropriate for a court to be asked in advance to determine questions of law which may arise in the course of a determination by an expert of a dispute,” Supreme Court Justice Elizabeth Dunne noted.

Point Village argued that there was no dispute of law involved in the process before Reddy, the independent expert. He was being asked to use professional judgment about the weight that ought to be attached to certain factors in determining the dispute between the parties as to whether the development was finished to a first class standard.

Is this the end?

The Supreme Court delivered a written judgment on the appeal on January 22, 2020. The decision found that the independent architect is meant to act as an expert and not an arbitrator in this dispute and no matter what decision this expert arrives at, it does not mean that the matter can never go before a court for consideration. 

When it comes to the issue of interpretation, Justice Dunne said in her judgment that the stance taken by Dunnes to challenge the role of the expert, in this case, was premature and that he should be allowed to get on with the task assigned to him by both parties.

“In the circumstances, it seems to me that the proper course is to permit the independent expert to carry out the function which the parties to these proceedings had given him,” writes Justice Dunne.

Dunne concluded her judgment by stating she would dismiss the appeal of this case. 

However, now Crosbie’s Nama receivers are letting go of the development meaning others will have to come in to finish the job, a source told The Currency. The shopping centre and Point Village apartments are being teed up for sale by the receivers in a deal that is likely to fetch over €100 million.

It’s been a decade since the dispute broke out between Dunnes and those at the Point Village Development. Since then, Harry Crosbie could not reach a final agreement with Dunnes and neither could Nama. Now we wait to see if new entrants in the ongoing battle will be able to close off a Dunnes deal.