Conway v Ireland and Others
| Jurisdiction | Ireland |
| Judge | Miss Justice Laffoy |
| Judgment Date | 21 October 2009 |
| Neutral Citation | [2009] IEHC 472 |
| Court | High Court |
| Date | 21 October 2009 |
[2009] IEHC 472
THE HIGH COURT
BETWEEN
AND
ROADS ACT 1993 S16
RSC O.19 r28
ROADS ACT 1993 S51(2)
ROADS ACT 2007 S8
RSC O.84
ROADS ACT 1993 S50
BARRY v BUCKLEY 1981 IR 306
CONSTITUTION ART 29.4
CONSTITUTION ART 29.6
HUTCHINSON v MIN FOR JUSTICE 1993 3 IR 567
CONSTITUTION ART 29.5.1
AARHUS CONVENTION ART 17
AARHUS CONVENTION ART 19
AARHUS CONVENTION ART 20
EEC DIR 85/337
EEC DIR 96/61
EEC DIR 2003/35 ART 6
COMMISSION v IRELAND C/427/2007
EEC DIR 2003/35 ART 3.7
EEC DIR 2003/35 ART 4.4
TORMEY v IRELAND 1985 IR 289
TD v MIN FOR EDUCATION 2001 4 IR 259
BOLAND v TAOISEACH 1974 IR 338
CROTTY v TAOISEACH 1987 IR 713
PRACTICE AND PROCEDURE
Strike out
Inherent jurisdiction - Unsustainable - Frivolous and vexatious - Whether proceedings unsustainable and bound to fail and/or frivolous and vexatious - Whether plaintiff's claim non-justiciable and bound to fail - Whether court has power by order of mandamus to require State to ratify international agreement - Barry v Buckley [1981] IR 306 applied; Hutchinson v Minister for Justice [1993] 3 IR 567; Boland v An Taoiseach [1974] IR 338 and Crotty v An Taoiseach [1987] IR 713 approved; Commission v Ireland (Case C/427/07) [2009] En LR 3; Tormey v Ireland [1985] IR 289 and TD v Minister for Education [2001] 4 IR 259 considered - Aarhus Convention, article 17, 19 and 20 - Council Directive 2003/35/EC, article 6 - Council Directive 85/337/EEC - Council Directive 96/61/EC - Roads Act 1993 (No 14), ss 8, 16, 17, 50 and 51(2) - Rules of the Superior Courts 1986 (SI 15/1986) O19, r 28 - Proceedings dismissed (2007/7111P - Laffoy J - 21/10/2009) [2009] IEHC 472
Conway v Ireland
Facts The first and second named defendants applied pursuant to Order 19, rule 28 of the Rules of the Superior Courts 1986 striking out the plaintiff's statement of claim as it discloses no reasonable cause of action and/or staying or dismissing the proceedings against them on the basis that they are frivolous and vexatious. Alternatively, the first and second named defendants seek an order pursuant to the inherent jurisdiction of the Court striking out the proceedings on the basis that they are unsustainable and bound to fail and/or are frivolous and vexatious. A similar application was brought by the National Roads Authority (NRA) invoking the jurisdiction of the Court under Order 19, rule 28 and the Court's inherent jurisdiction. The specific reliefs claimed by the plaintiff focus on part of a recently constructed national road, the A1/N1 Newry Dundalk Link Road (A1/N1).,
Held by Laffoy J. in dismissing the proceedings against all respondents under the inherent jurisdiction of the Court on the basis that the proceedings and all aspects thereof are bound to fail.
Reporter: C. O'C
Judgment of Miss Justice Laffoy delivered on the 21st day of October, 2009.
The plaintiff in these proceedings has described himself in the statement of claim as "a retired gentleman of humble means, a citizen of Europe and a member of a non-governmental organisation which is striving to protect, preserve and improve the state of our environment". The plaintiff does not have legal representation in these proceedings and he appeared on the applications to which this judgment relates in person.
The proceedings were initiated by a plenary summons which issued on 26 th September, 2007. In it the plaintiff sought an order of mandamus in terms which I will outline later against the first and second defendants (the State parties). He also sought an order of mandamus in terms which he reiterated in his statement of claim against the third defendant (the NRA), which is a statutory body established by s. 16 of the Roads Act 1993 (the Act of 1993), and which is charged by s. 17 thereof with the "general duty ... to secure the provision of a safe and efficient network of national roads".
The plaintiff delivered his statement of claim on 10 th December, 2007, which is somewhat unusual in format, in that it sets out certain complaints in very general terms against the State parties and the NRA and then seeks certain reliefs which go beyond the reliefs sought in the plenary summons. The reliefs sought are against the State parties solely, the NRA solely and one relief against all of the defendants.
The State parties raised particulars by notice of particulars dated 21 st December, 2007 and the particulars were furnished by the plaintiff. The State parties delivered an objection and defence on 18 th July, 2008, which contained a number of preliminary objections, including that the statement of claim did not disclose any cause of action or any legal basis for the reliefs sought against the State parties, that the proceedings are improperly constituted because the reliefs should have been sought by way of application for judicial review, that the proceedings are inadmissible to the extent that they question a decision of An Bord Pleanála other than by way of judicial review and within the material time limits and that the plaintiff is not personally affected by the matters in the proceedings and does not have locus standi to maintain the proceedings.
The NRA has not delivered a defence.
This judgment is concerned with two applications:
(1) An application by the State parties pursuant to Order 19, rule 28 of the Rules of the Superior Courts 1986 (the Rules) striking out the statement of claim insofar as it relates to the State parties on the ground that it discloses no reasonable cause of action and/or staying or dismissing the proceedings against the State parties on the basis that they are frivolous and vexatious. Alternatively, the State parties seek an order pursuant to the inherent jurisdiction of the Court striking out the proceedings as against the State parties on the basis that they are unsustainable and bound to fail and/or are frivolous and vexatious.
(2) A similar application brought by the NRA invoking the jurisdiction of the Court under Order 19, rule 28 and the Court's inherent jurisdiction.
Some of the reliefs claimed by the plaintiff are framed in very broad terms and others are framed in specific terms. The latter and the affidavit evidence adduced by the NRA cast light on the factual basis of the plaintiff's claim and what he is striving to achieve.
The specific reliefs claimed by the plaintiff focus on part of a recently constructed national road north of Dundalk. The road in question is the A1/N1 Newry Dundalk Link Road (A1/N1), which is a two-lane dual-carriageway from the Ballymascanlon Roundabout north of Dundalk to the border with Northern Ireland at Cloghoge, where it connects with a section of the A1 in Northern Ireland. The portion of the A1/N1 in respect of which the plaintiff seeks specific reliefs is the portion which lies between Feede Roundabout and Dromad former Garda Station, which, for the sake of brevity, I will refer to as "the contentious stretch". The evidence adduced on behalf of the NRA is that the "footprint" of the contentious stretch significantly impacts on the width of the old N1 road. As I understand the position, in non-technical terms, the old N1 road runs parallel to the A1/N1 almost as far as Feede Roundabout but along the contentious stretch the A1/N1 is constructed over the old N1 road.
The A1/N1 is the subject of a decision of An Bord Pleanála of 16 th September, 2003 on an application by Louth County Council made pursuant to s. 51(2) of the Act of 1993 approving the proposed road development. That decision was preceded by an oral hearing conducted by an Inspector appointed by An Bord Pleanála which took place between 29 th April, 2003 and 2 nd May, 2003. The plaintiff attended the oral hearing and made submissions, which are recorded in the Inspector's Report. It has been suggested on behalf of the NRA that those submissions related to the very same issues as are now before the Court. I am not making any finding that that is the case. The plaintiff did not challenge the decision of An Bord Pleanála by way of judicial review or otherwise following its publication.
What appears to have precipitated these proceedings was that, as part of the road scheme works in relation to the A1/N1, the filling in of the old N1 road along the contentious stretch commenced in June 2007. The evidence before the Court is that the work in issue had been part of the proposed road development as submitted to An Bord Pleanála for approval, it was approved by An Bord Pleanála and has been carried out in accordance with the terms of the decision of 16 th September, 2003. By the time these proceedings were instituted on 26 th September, 2007 the filling in work was substantially complete.
The reliefs which the plaintiff seeks against the NRA and the bases on which he seeks them, to the limited extent that such are set out in the statement of claim, are as follows:
(1) He seeks orders to reverse the work carried out on the contentious stretch, in that he seeks an order compelling the NRA to desist from any further "filling-in" of the bed of the former N1 road. As I understand it, that work is a fait accompli. However he also seeks an order compelling the NRA to excavate the filling. On the assumption that that will be done, he seeks an order that the NRA extend the former N1 roadbed to the east and directing it to lay the roadbed out as a fully surfaced and marked county road/cycle way/footpath. His view is that the contentious stretch should be a "full blown" motorway and that there should be alongside it on the alignment of the former N1 road a local...
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