Atlas GP Ltd v Kelly

• Jurisdiction: Ireland
• Judge: Ms. Justice Emily Egan
• Judgment Date: 19 July 2022
• Neutral Citation: [2022] IEHC 443
• Court: High Court
• Docket Number: [2021 6260 P]

Between

Atlas GP Limited

Plaintiff

and

David Kelly, Julie Kelly, Tony Dalton, Mary Dalton, Sean Mooney, Grainne Mooney, Marie Forrester and Rosalind Matthews

Defendants

and

Attorney General

Notice Party

[2022] IEHC 443

[2021 6260 P]

THE HIGH COURT

Maintenance – Champerty – Bound to fail – Defendants seeking an order striking out the proceedings as bound to fail – Whether the plaintiff had established a stateable case of maintenance and champerty

Facts: The plaintiff, Atlas GP Ltd (Atlas), made the case that the defendants, Mr and Ms Kelly, Mr and Ms Dalton, Mr and Ms Mooney, Ms Forrester and Ms Matthews (the JR applicants), had committed the torts of maintenance and champerty. By notice of motion dated 1st December, 2021, the JR applicants sought an order striking out the proceedings pursuant to O. 19 r. 28 of the Rules of the Superior Courts or pursuant to the inherent jurisdiction of the High Court as failing to disclose any reasonable cause of action and/or as being bound to fail and/or as being frivolous and/or vexatious and/or as constituting an abuse of process, and/or as being brought for an improper and/or collateral purpose and/or for being an interference with the right of access to the courts.

Held by Egan J that Atlas had not identified any evidence or any reasonable basis to believe that evidence would become available such as might establish a stateable case of maintenance and champerty.

Egan J held that the JR applicants were entitled to an order pursuant to the inherent jurisdiction of the court striking out the proceedings as bound to fail.

Application granted.

JUDGMENT ofMs. Justice Emily Egandelivered on the 19th day of July, 2022

Introduction

1 This is an application by the defendants (“the JR applicants”) to strike out these proceedings on a number of grounds. The case being made by the plaintiff (“Atlas”) in these proceedings is that the JR applicants have committed the torts of maintenance and champerty. I have concluded that these proceedings are bound to fail, and I have no hesitation whatsoever in granting the JR applicants the reliefs sought.

Background to the present application

2 The JR applicants were granted leave by Holland J. to seek judicial review of a decision of An Bord Pleanála (“the Board”) of 8th July, 2021 to grant to Atlas planning permission for the construction of a strategic housing development of 255 residential units, a childcare facility and associated works on a site off Church Road, Killiney, County Dublin (“the development”).

3 These judicial review proceedings (“the judicial review”) were issued during the long vacation on 12th August, 2021 on which date the matter was opened and adjourned to the Strategic Infrastructure List after the commencement of term. The Board and Atlas were served with a courtesy copy of the pleadings on 13th September, 2021.

4 Atlas pleads that on or about 1st September, 2021 it became aware of a flyer (“the flyer”) widely circulated in the local community. Atlas's case is that the clear purpose of the flyer was to motivate third parties having no legitimate interest in the judicial review to fund the legal costs thereof. Atlas also contends that the flyer contained false, inaccurate and defamatory statements designed to mislead third parties into providing this funding.

The flyer

5 The flyer states that it is circulated by the Watson Killiney Residents Association (“the residents association”) “ as part of our policy on informing residents of issues that will impact all of us”; that the Board recently approved planning permission for the development at Watson Road and Watson Drive; that in response to this approval a group was formed by residents representing several local areas and a representative of the residents' association; that this group discussed what actions could be taken “to protect the best interests of existing residents and amenities in our area” as a result of which members of the group have lodged an application for judicial review. The flyer indicates that “ Dun Laoghaire Rathdown's planning department strongly opposed the development stating that it would seriously and negatively impact the amenity of all residents in the area”; that most strategic housing development applications are brought for judicial review with a high success rate in overturning decisions of the board; and that the legal team engaged by the group believe there is a strong case for this approval to be overturned. The residents' association is said to welcome new housing developments which must be sustainable development that does not detract from the amenity of the area. The flyer then sets out how the proposed development will affect “ us all in Watsons” and refers to the exacerbation of problems with the Watsons sewage system, traffic on “ our” small internal estate roads (which it was said would cause lengthy delay for residents and endanger the safety of children, pedestrians and cyclists), increased and constant noise, insufficient parking and potential increase in litter, anti-social behaviour and loitering throughout the estate. Under the heading “ Costs of judicial review”, the flyer observes that a judicial review costs approximately €60,000; that “ a number of locals have already committed money to this cost but that there are thousands still to raise”; that “ the group are seeking community wide support to fund the legal process in order to protect our local amenities”; and that any contribution that the reader can give would be welcome. The flyer requests that contributions are made directly to the “ campaign bank account” the details of which are indicated and that cheques may be made out to the CSVW Residents Association and delivered to a particular address, which I understand is the address of Tony and Mary Dalton, the third and fourth named defendants herein. The flyer concludes that if the judicial review is successful, the residents' association would expect to recover a substantial amount of the legal fees.

6 In response to this flyer, Atlas's solicitor served a letter at the homes of each of the JR applicants on Friday evening 17th September, 2021. Each letter stated that the person to whom it was addressed was the author and/or was connected to the author of the flyer and maintained that the flyer was clearly defamatory, contained inaccuracies and baseless and fundamental untruths designed to emotionally inflame and mislead local recipients. The letter sought undertakings to cease and desist from circulating the flyer and inter alia, an apology, appropriate payment of damages and costs failing which High Court proceedings would be instituted. The letter also noted that if legal proceedings were issued the recipient could be held personally liable for payment of the damages and costs which would be “ very significant”.

7 On 21st September, 2021, the solicitor acting for the JR applicants replied stating that the alleged defamatory statements were manifestly not made by any of his clients and that the actual authors of the flyer had not been contacted by Atlas. The letter emphasised that this correspondence had been sent only to the JR applicants, and, moreover had been hand delivered on a Friday evening. This it was said revealed that its real purpose was to intimidate the JR applicants with threats of spurious and vexatious litigation.

8 On 24th and 29th September, 2021 Atlas's solicitor sent two letters to the JR applicants seeking information it contended was necessary to determine if the judicial review proceedings were the subject of illegal funding. This letter sought fifteen “ clarifications” from the solicitor acting for the JR applicants, including the following details:

• • The names and addresses of the directors and members of the two residents associations;

• • The identity of the ultimate beneficial ownership of both residents' associations.

• • The role of both residents' associations in the proceedings.

• • Details of the funding provided by both residents' associations.

• • The identity of the holder of the bank account identified in the flyer.

• • The names and addresses (to include Eircodes) of all the contributors to the funding of the judicial review and the interest of each funder.

9 In reply, the solicitor for the JR applicants reminded Atlas that he did not act for the residents' associations, he stated that he did not have the information sought, and that, in any event there was no legal basis in law for seeking it. Atlas thereafter sought the relevant information by way of discovery and sought an order for discovery (in advance of delivery of the statement of claim and defence) as part of its interlocutory application to this court.

10 On 30th September, 2021 Atlas instituted proceedings for defamation ( Atlas GP Limited v David Kelly & Ors Record No. 2021/5608P) (“the defamation proceedings”) against the JR applicants in relation to the flyer. A motion to strike out the defamation proceedings is currently awaiting a hearing date.

11 The present proceedings were issued on 11th November, 2021, and thus prior to the application to seek leave to apply for judicial review in the judicial review proceedings. This timing is relevant because in the present proceedings, Atlas not only seeks damages for maintenance and champerty and a declaration that the judicial review proceedings have been funded by parties with no legitimate interest therein, but also an injunction restraining the JR applicants from taking any steps including the making of applications to court. On the same day as the present proceedings issued, Atlas issued a notice of motion seeking an interlocutory injunction restraining the JR applicants from taking any steps, including the making of applications to court pending the determination of the present proceedings. Atlas also sought orders directing the JR applicants to identify the names, addresses and...