knowledge 13 May 2026 |

Keep-open clauses: what landlords and tenants need to know

What is the latest position?

The High Court has made clear that, although keep-open clauses are binding, they will seldom produce an order requiring a retailer to continue trading at a loss. Their practical significance is usually different: they strengthen a claim for damages and may influence the parties’ commercial positions, but they are not usually a realistic route to court supervision of day-to-day trading.

In Tesco v Multi-Home Retail ([2026] IEHC 276), the High Court refused an interlocutory injunction that would have required the licensee to keep the unit open, staffed, stocked and trading until trial. The court accepted that there was an arguable breach, but was not persuaded that a final order compelling continued trading was likely at trial. It pointed to the established reluctance to require a business to keep trading and to the practical problems of policing an order of that kind. It also concluded that financial compensation was an adequate remedy, because the landlord’s alleged loss, including reputational impact and reduced footfall, could be assessed by reference to trading data and expert evidence.

When might an injunction still be available?

The main difficulty is practical. Courts are slow to make orders that would require ongoing supervision of how a business is run, including issues such as staffing, stock and the substance of trading. They are also cautious where the effect would be to require continued loss-making trading before trial.

Can drafting make an injunction more likely?

Careful drafting can make a clause easier to enforce, even if it cannot guarantee an injunction. The aim should be to use clear, objective obligations that can be checked without the court becoming involved in day-to-day trading decisions. For example, duties to keep the premises open during lawful centre hours, maintain lighting, signage, access and displays, and comply with centre regulations are more workable than broad promises to “carry on business.” By contrast, obligations framed by reference to trading performance, stock levels or staffing are more likely to create supervision problems and are therefore less attractive as candidates for injunctive relief.

A 2021 Scottish case offers a useful illustration of the same practical difficulty: keeping a unit technically open may still fall short of meaningful trading. For Irish purposes, the point is straightforward. Clear, objective obligations are easier to enforce, while orders requiring the court to supervise how a business trades are much less likely.

What are the practical takeaways?

A keep-open covenant usually matters most as a source of leverage and a basis for claiming loss, rather than as a means of forcing continued trading. For landlords, the priority is to draft carefully, gather evidence early, act quickly and focus on remedies that can recover or reduce loss. In some cases, landlords may also need to consider whether an unremedied breach should trigger forfeiture, bearing in mind the notice requirements, the possibility of relief against forfeiture and the commercial consequences of taking that step. For tenants, the priority is to keep clear financial records and raise operational difficulties early. Where a tenant is not compelled to trade, that does not generally relieve it of other lease obligations, including the obligation to pay rent.

Overall, the law favours practical outcomes that compensate loss, rather than requiring the court to supervise an ongoing business, although limited and carefully framed orders may still be available on particular facts.

Also contributed to by Hugo McElligott