Charlton & Charlton v Kenny & Kenny

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 07 September 2007
• Neutral Citation: [2007] IEHC 308
• Court: High Court
• Date: 07 September 2007

[2007] IEHC 308

THE HIGH COURT

[No. 4266P/2006]

CHARLTON v KENNY

BETWEEN

GERARD CHARLTON AND MAEVE CHARLTON

PLAINTIFFS

AND

PAT KENNY AND KATHRYN KENNY

DEFENDANTS

CORK PLASTICS & HANIMEX (IRELAND) LTD v INEOS COMPOUNDS UK LTD & TIOXIDE EUROPE LTD UNREP CLARKE 26.7.2007 2007 IEHC 247

RSC O.50 r4

BULA LTD v TARA MINES (NO 1) 1987 IR 85

PRACTICE AND PROCEDURE

Inspection

Title to land - Adverse possession - Procedural motions - Inspection of documents - Particulars - Inspection of property - Compliance with rules - Reliance on âÇÿnormal practice' - Whether constructive engagement on procedural issues by solicitors - Whether inspection of property necessary - Attendance of non-expert witnesses - Whether circulation of expert reports to be restricted - Rules of the Superior Courts 1986 (SI 15/1986), O 50, r 4 - Cork Plastics v Ineos Compounds [2007] IEHC 247, (Unrep, Clarke J, 26/7/2007) and Bula Ltd v Tara Mines Ltd (No 1) [1987] IR 85 considered - Limited inspection allowed and no costs ordered (2006/4266P - Clarke J - 7/9/2007) [2007] IEHC 308

Charlton v Kenny

the plaintiffs brought a motion for further and better particulars against the defendants and the defendants brought a motion seeking to inspect documents which had been discovered by the plaintiffs. Both motions were disposed of previously and the only issue in respect of them outstanding was in relation to the costs of the motions. The other issue before the court was the plaintiffs’ motion to inspect property which was the subject matter of the litigation between the parties.

Held by Mr Justice Clarke in making an order that the plaintiffs be allowed to inspect the property the subject matter of the litigation with their experts and making no order for costs in respect of any of the motions that where both sides were at least to some significant degree at fault in complicating and delaying interlocutory motions no order as to costs should be made.

That, as an order for inspection of property would allow some interference with a parties property in circumstances where there was no case against it, the obligation should only be imposed where there was a real need for it and, then, only to the minimum extent necessary.

Reporter: P.C.

1. Introduction

2 2 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.

3 3 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.

4 4 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.

5 5 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 2 2.1 On the 31 ^st 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 27 ^th 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.

3 3 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.

4 4 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 seems to me to be incumbent on the person receiving that request to inform the other side of that reason. If the other side is not informed, then they cannot reasonably be expected to guess what the reasons, if any, might be and are entitled to bring an application before the court seeking to enforce the procedural request if not complied with in time. On the other hand if a reason is proffered as to why the request should not be complied with, at least within the requested time frame, then it is up to the requesting party to decide whether that reason is reasonable. If, notwithstanding the reason proffered, a motion is brought to court to enforce the request, then that motion is brought on risk that if the reason proffered is considered to be a valid one, the costs may be awarded against the party bringing the motion on the basis of having unnecessarily invoked, in a premature fashion, the courts jurisdiction and added to the costs of the proceedings by so doing.

5 5 2.4 Clearly, in the ordinary way, and applying that principle, the Charltons would appear to be entitled to their costs of that motion in that at the time they issued the motion there was a request (and indeed a reminder) outstanding and no reason for not complying had been proffered. Whatever may be the answer to the question of whether the special circumstances raised on behalf of the Kennys ought to lead to a change in that situation in this case, it also seems to me to be necessary to view the costs of this issue in the light of the views which I have taken as to the procedural course of these proceedings as a whole. That is an...