Clonres CLG v The Minister for Arts, Heritage and The Gaelteacht

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 28 July 2022
• Neutral Citation: [2022] IECA 172
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2020/181

Between/

Clonres CLG

Appellant

and

Minister for Arts, Heritage and The Gaelteacht

and

Ireland and The Attorney General

and

Crekav Trading GP Limited

Respondents

[2022] IECA 172

Whelan J.

Noonan J.

Binchy J.

Appeal Number: 2020/181

THE COURT OF APPEAL

Extension of time – Leave to amend – Reference – Appellant appealing from the order striking out the proceedings – Whether an extension of time should have been granted

Facts: The appellant, Clonres CLG, appealed to the Court of Appeal from the order of the High Court (Twomey J) of 28 July 2020 striking out the proceedings against the first, second and third respondents, the Minister for Arts, Heritage and the Gaeltacht, Ireland and the Attorney General, for failure to bring same within the time limits prescribed by O. 84, r. 21(1) of the Rules of the Superior Courts. Further, the reliefs sought by the appellant were refused and the proceedings against the fourth respondent, Crekav Trading GP Ltd, were struck out. In its notice of appeal, the appellant raised the following grounds: the trial judge erred in finding that the reliefs sought were out of time; the judge erred in finding that the proceedings were judicial review proceedings; the judge erred in concluding that the proceedings were a challenge to a decision of the State respondents to not designate St. Paul’s, Sybil Hill, Clontarf, Dublin 3 as an SPA; the judge erred in concluding that the appellant was seeking an order for mandamus; the judge erred in characterising the August 2018 letter as a demand and refusal and/or formal decision of the State respondents on environmental matters under European law and/or confirmation of a decision taken in 2009/2010; the judge erred in failing to consider that if time ran from the August 2018 letter, another request to designate the site could be made; the judge erred in mischaracterising the argument that the continuing failure of the State respondents meant the appellant was at liberty to judicially review the failure at any date and/or that no time limit applies to a challenge to designate the site as an SPA and erred in his consideration of authorities dealing with alleged continuing breaches and ongoing accrual of time; the judge failed to take into account that there was no evidence that the State respondents considered designating the St. Paul’s site as an SPA in 2009/2010 and that the State respondents did not aver that a decision not to designate was made; the judge erred in stating that there was no evidence produced to suggest that there was some change or additional information since 2009/2010; the judge erred in improperly imputing and/or taking into account that the primary aim of the appellant in the previous judicial review proceedings was to prevent the building of housing on the St. Paul’s site and mischaracterised and/or misunderstood the submission concerning the rule in Henderson v. Henderson (1843) 3 Hare 100 and that the designation of the site as an SPA was an ancillary claim in those previous proceedings; the judge failed to consider that there was a continuing obligation on the State respondents under European law; the judge erred in refusing to extend time; the judge failed to take into account the “exceptionally strong nature” of the environmental claims; the judge erred in failing to make a preliminary reference to the CJEU; the judge erred in mischaracterising the issue of time limits in the context of EU law requirements; the judge erred in considering that there was a lack of particularisation in the statement of claim regarding what had not been properly transposed; the judge failed to address submissions that the motion to dismiss was improperly brought; and the judge failed to consider the appellant’s motion to amend the statement of claim.

Held by Whelan J that based on the Henderson Rule the proceedings ought to be dismissed; all material issues could and should have been pursued by Clonres in the earlier judicial review proceedings record number 2018/426JR. She dismissed the appeal on all grounds. She considered that a decision on any question of European Union law had not been identified that warranted a reference of any question to the CJEU pursuant to Article 267 TFEU and she refused the said application.

Whelan J’s provisional view was that there should be no order as to costs.

Appeal dismissed.

Contents

Introduction	- 6 -
Background	- 6 -
The 2018 judicial review proceedings — the First Proceedings	- 6 -
Correspondence of July and August 2018	- 7 -
Other proceedings in relation to proposed development of St Paul's lands	- 8 -
The instant plenary proceedings	- 9 -
Application of the State parties	- 10 -
Application of the appellant	- 10 -
Judgment of the High Court	- 10 -
Notice of appeal	- 21 -
Applicability of time limits set out in O. 84, r. 21(1) RSC	- 23 -
The appellant's submissions	- 23 -
The State's submissions	- 26 -
The Developer's submissions	- 28 -
Henderson v. Henderson	- 29 -
The appellant's key submissions on Henderson Rule	- 30 -
The State's key submissions on Henderson Rule	- 30 -
The Developer's key submissions on Henderson Rule	- 31 -
Approach of this court to the Henderson ground of appeal	- 31 -
Application to extend time	- 31 -
The appellant's submissions	- 31 -
The State's submissions	- 32 -
The Developer's submissions	- 33 -
Application to amend the statement of claim	- 33 -
The appellant's submissions	- 33 -
The State's submissions	- 33 -
The Developer's submissions	- 34 -
Analysis & Context	- 34 -
The Henderson Ground of Appeal	- 34 -
Claims against State defendants in the first proceedings	- 34 -
The appellant's current proceedings — the second proceedings	- 37 -
Are the plenary proceedings in substance judicial review proceedings?	- 39 -
No decision	- 39 -
Disposal of first proceedings	- 39 -
18 July 2018 letter	- 40 -
Hearing 31 July 2018	- 42 -
Assessment of stance adopted by Clonres on 31 July 2018	- 44 -
The State's position	- 46 -
No decision	- 49 -
Political Lobbying	- 50 -
Whether both claims are substantially similar	- 52 -
Grass Cutting	- 53 -
Decision	- 55 -
Rules Governing Judicial Review Apply	- 56 -
Mandamus — Public Law Remedies	- 59 -
Henderson Rule	- 60 -
Position in Ireland	- 62 -
England & Wales	- 63 -
The decision in Johnson v. Gore-Wood & Co. (a firm) [2002] 2 A.C. 1 ( Johnson)	- 65 -
The Respondent's Motion	- 67 -
Judgment of Barniville J. on 31 July 2018	- 67 -
The determination of that issue is fact driven in each case	- 67 -
Ancillary argument	- 68 -
Hearing of first respondent's Motion	- 69 -
Henderson & Public Law	- 75 -
Procedural Context	- 76 -
Arklow Holidays Limited	- 77 -
Article 267	- 78 -
Interests of litigants	- 79 -
Special circumstances and Henderson Rule	- 80 -
Delay	- 81 -
Assessment of applicability of Henderson Rule to the facts	- 81 -
Issues are the same	- 83 -
Principle of effectiveness	- 84 -
Exercise of discretion	- 86 -
Procedural	- 87 -
Conclusion on Henderson Rule	- 88 -
Subsequent events	- 89 -
Other Grounds of Appeal	- 90 -
Ground of Appeal One	- 90 -
Ground Two	- 91 -
Ground Three	- 91 -
Ground Four	- 91 -
Ground Five	- 92 -
Ground Six	- 92 -
Ground Seven	- 93 -
Ground Eight	- 93 -
Ground Nine	- 93 -
Ground Ten	- 94 -
Ground Eleven	- 94 -
Ground Twelve	- 94 -
Ground Thirteen	- 95 -
Ground Fourteen	- 95 -
Ground Fifteen	- 96 -
Ground Sixteen	- 96 -
Ground Seventeen	- 96 -
Ground Eighteen	- 97 -
Ground Nineteen	- 97 -
Ground Twenty — Extension of Time	- 97 -
Ground Twenty-One	- 98 -
Ground Twenty-Two	- 98 -
Ground Twenty-Three — Preliminary Reference	- 99 -
Ground Twenty-Four	- 100 -
Ground Twenty-Five	- 101 -
Ground Twenty-Six	- 101 -
Ground Twenty-Seven	- 102 -
Ground Twenty-Eight	- 102 -

JUDGMENT of Ms. Justice Máire Whelan delivered on the 28 ^th day of July 2022

Introduction

1 . This is an appeal from the order of the High Court (Twomey J.) of 28 July 2020, perfected on 31 July 2020, following the delivery of a judgment on 16 July 2020, wherein the proceedings against the first, second and third respondents were struck out for failure to bring same within the time limits prescribed by O. 84, r. 21(1) of the Rules of the Superior Courts (“RSC”) Further, the reliefs sought by the appellant by notice of motion of 16 March 2020, including an order to extend time to seek judicial review and leave to amend the statement of claim, were refused and the proceedings against the fourth respondent were struck out. No order as to costs was made.

Background

2 . The appellant is a limited company with objects which include the protection of the environment of Clontarf. It is comprised of Clontarf residents and was active for over 30 years as a residents' organisation before being incorporated on 27 November 2006.

3 . These proceedings concern lands at St. Paul's, Sybil Hill, Clontarf, Dublin 3 which, it is claimed, are an important feeding ground for light bellied brent geese and black tailed godwit. For that reason, the appellant is seeking, inter alia, to have the St. Paul's site designated as a special protection area (“SPA”) for the purposes of Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (“the Birds Directive”). The appellant also seeks declarations that the Minister is required under Council Directive 92/43/EEC of 21...