Charlton & Anor -v- Kenny & Anor, [2007] IEHC 308 (2007)

Docket Number:2006 4266 P
Party Name:Charlton & Anor, Kenny & Anor
Judge:Clarke J.

Neutral Citation Number: [2007] IEHC 308


PAT KENNY AND KATHRYN KENNYDEFENDANTSJUDGMENT of Mr. Justice Clarke delivered the 7th day of September, 2007

  1. Introduction

    1.1 The plaintiffs ("the Charltons") and the defendants ("the Kennys") own neighbouring properties in Dalkey, County Dublin. A significant dispute has arisen between them as to the ownership of a portion of land that is close to both houses. The Charltons claim to be the legal and beneficial owners of the property. The Kennys contest the Charltons title and, in particular, suggest that any title which the Charltons may have had to the property concerned has been extinguished by adverse possession. It would be fair to say that the proceedings appear to be marked with a considerable degree of acrimony on all sides. Unfortunately, for reasons which will be apparent, it would appear that that level of acrimony has spilled over to an unusual degree into the positions which has been adopted by the solicitors on both sides.

    1.2 Two procedural motions involving three separate issues were heard by me in late July. One issue concerned inspection on behalf of the Kennys of documents which had been discovered by the Charltons by their inclusion in an affidavit of discovery. The second issue concerned a request for further and better particulars of the defence served by the Charltons on the Kennys. The third, and most substantive issue, concerned an application by the Charltons to be enabled to inspect the disputed property.

    1.3 At the hearing before me the only issues of substance relating to the inspection of documents and the replies to particulars were questions of timing. Were it not for the acrimonious atmosphere in which these proceedings seem to be conducted, it seems unlikely that any such applications would have been necessitated at all. It was, in any event, clear that inspection of the relevant documents would be facilitated in early course and that replies to the outstanding particulars would also be furnished within a short time frame. In those circumstances I did not consider it either necessary or appropriate to make any substantive orders and the only issues which remain for consideration in relation to those motions are the costs. The question of inspection of the property is, however, a matter on which I have to rule and I will deal with that issue later in the course of this judgment.

    1.4 However so far as the costs of the two outstanding motions are concerned it is necessary to say something about the circumstances in which the procedural aspects of this case have been conducted in order to properly address those costs issues. I now turn to the underlying facts relevant to those applications.

  2. The Facts - Particulars

    2.1 On the 31st May, 2007 solicitors on behalf of the Charltons served a notice seeking further and better particulars of the Defence on solicitors acting on behalf of the Kennys. On the 27th June, no response having been received, a letter was written voluntarily extending time for the furnishing of the relevant replies by a further seven days. No response was received to that letter either. The relevant motion then issued.

    2.2 In a replying affidavit the solicitors acting on behalf of the Kennys indicated that their clients were on holidays for much of the intervening period but that they were unwilling to reveal that fact to the solicitors acting on behalf of the Charltons because of concerns arising out of an alleged incident at the property which is said to have occurred on a previous occasion when the Kennys were not present in their home.

    2.3 It has been a universal practice on my part when dealing with the costs of procedural motions to ascertain whether any reason that might be put forward as a cause for not having complied with a procedural request in a timely fashion, had been communicated in correspondence at the time when the request was made. If no such reason is put forward in correspondence at the relevant time, then I have, almost invariably, disregarded any such reason in considering the costs of the matter. In other words if there was a good reason why a procedural request ought not be complied with within the time frame specified in the request (or provided for by the rules) it...

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