Croghan and Others v Collins and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice David Holland
• Judgment Date: 31 October 2024
• Neutral Citation: [2024] IEHC 607
• Docket Number: RECORD NUMBER: 2024/4410 HP

Between

Alan Croghan

Amanda Farrelly

Melissa Kelly

Plaintiffs

and

Paul Collins

Tanya Hennigan

Townbe Unlimited Company

The Commissioner of An Garda Siochana

Roderick O'Gorman

The Minister for Children, Equality, Disability, Integration and Youth

Dublin City Council

The Government of Ireland

The Minister for Housing Local Government and Heritage

Defendants

2024 IEHC 607

RECORD NUMBER: 2024/4410 HP

THE HIGH COURT

Interlocutory injunctions – Article 191 of the Treaty on the Functioning of the European Union – Aarhus Convention – Plaintiff seeking interlocutory injunctions – Whether the plaintiffs’ case was unstateable

Facts: The plaintiffs, Mr Croghan, Ms Farrelly and Ms Kelly, by notice of motion, sought the following interlocutory reliefs: (1) “An injunction against any of the above named defendants or any of their agents or employees from housing migrants at the Coolock Crown Paints site or its environs.” (2) “A mandatory injunction on the relevant public representatives to adhere to the precautionary principle and halt this project immediately in accordance with the TFEU Article 191.” Other reliefs were also sought but were not in reality pursued. The motion was opposed on the ground that the plaintiffs’ case was unstateable. When asked to state the legal bases on which she alleged a right of action capable of supporting the interlocutory injunctions which she sought, Ms Kelly nominated two: the precautionary principle as established in EU environmental law, citing Article 191 of the Treaty on the Functioning of the European Union (TFEU); and the obligations as to public participation in environmental processes for which the Aarhus Convention (Convention On Access To Information, Public Participation In Decision-Making And Access To Justice In Environmental Matters, Done At Aarhus, Denmark, On 25 June 1998) provides.

Held by the High Court (Holland J) that Article 191 TFEU does not have direct effect in Irish law and the precautionary principle is not justiciable in Irish courts on a freestanding basis. He held that breach of the precautionary principle is not, per se, actionable in Irish courts. He held that the precautionary principle is an interpretive principle applicable to formal legal instruments. He held that the preventive principle or the “aim” of “a high level of protection” of the environment is not actionable in Irish courts, citing Power & Wild Ireland Defence v ABP, the State & Knocknamona Windfarm [2024] IEHC 108. He held that a case pleaded merely on the precautionary principle was unstateable. He held that, on that ground alone, the claim, made on an interlocutory basis, for “A mandatory injunction on the relevant public representatives to adhere to the precautionary principle and halt this project immediately” must be rejected. As to reliance on the Aarhus Convention, as an instrument of international law, he held that it too has no direct effect in Ireland and is not directly justiciable in the Irish courts, citing Jennings v An Bord Pleanála [2022] IEHC 249 – that is the effect of Article 29.6 of the Constitution. He invited Ms Kelly to identify precisely the provisions of domestic law on which she relied as giving effect to the Aarhus right of public participation for which she contended; she did not do so. He explained that the onus was on her to assert reliance on a particular domestic law and that she would have to demonstrate its stateable application to the factual matrix she alleged. In his judgment, she failed to do either. He held that the case pleaded on the Aarhus Convention was unstateable. He held that as both legal bases on which the interlocutory injunctions were sought were unstateable, all claims for such reliefs would be rejected.

Holland J rejected the plaintiffs’ application for interlocutory injunctions.

Application refused.

Interlocutory Injunction Application

JUDGMENT OF Mr Justice David Holland DELIVERED 31 OCTOBER 2024

Contents

INTRODUCTION	2
PLENARY SUMMONS – BRIEF DESCRIPTION	3
LITIGANTS IN PERSON	5
THE TOWNBE DEFENDANTS & BRIEF DESCRIPTION OF THE PROPOSED DEVELOPMENT AT THE CROWN PAINTS SITE	7
THE PROPOSED DEVELOPMENT & ITS PLANNING STATUS	7
LEGAL BASIS OF CLAIM – A FAIR ISSUE TO BE TRIED?	12
THE PLAINTIFFS' FACTUAL PLEAS & AVERMENTS	14
INJUNCTION REQUIRING PUBLIC REPRESENTATIVES TO HALT THIS PROJECT	22
AFFIDAVIT OF PAUL COLLINS SWORN 18 JUNE 2024 IN PROCEEDINGS 2024/3668	23
CONCLUSION	23

INTRODUCTION

1 By Notice of Motion the Plaintiffs, litigants in person for all of whom Ms Kelly primarily spoke, seek the following interlocutory reliefs:

1. “An injunction against any of the above named defendants or any of their agents or employees from housing migrants at the Coolock Crown Paints site or its environs.

2. A mandatory injunction on the relevant public representatives to adhere to the precautionary principle and halt this project immediately in accordance with the TFEU Article 191 ….”

Other reliefs were also sought but were not in reality pursued. Some, prematurely sought, may be pursued later – notably discovery, once pleadings have closed.

2 The principles applicable to the grant or refusal of interlocutory injunctions are authoritatively set out in Merck. 1 However, the motion was opposed on the ground that the Plaintiff's case was unstateable – did not raise a fair question to be tried. The Plaintiffs only briefly addressed the balance of convenience and then only by conclusionary assertions that the state of that balance was obvious. The Defendants' response was confined to assertions that the Plaintiffs' case was unstateable.

3 I should note that Ms Kelly is party to other, similar proceedings, in which similar interlocutory injunctive relief is sought. 2 Application has been made to strike out those proceedings as bound to fail. Judgment stands reserved on both motions in those proceedings. I do not see that this circumstance bears on my decision on the motion before me. An argument was made that the Plaintiffs' failure, in moving an application for an ex parte

injunction, to bring Ms Kelly's other proceedings and the reservation of that judgment to the attention of Mulcahy J was in breach of their duty of candour. While the criticism may be merited and might be decisive in another, similar, case, as no ex parte injunction was granted and as the argument was not pursued before me with much vigour, I prefer not to decide this motion by reference to that argument

4 I need not describe in detail the State's obligations as to the reception of applicants for international protection in Ireland. They have recently been described by O'Donnell J. 3 While those obligations may not per se and alone establish the legality of any particular steps taken to accommodate such applicants, it is notable that those the State's legal obligations include housing such applicants. It is also notable that O'Donnell J has by that judgment declared that the State's

“…….. failure to provide for the basic needs of newly arrived international protection applicants between 4 December 2023 and 10 May 2024, whether by way of the provision of accommodation, shelter, food and basic hygiene facilities or otherwise, is in breach of that class of persons rights pursuant to Article 1 of the Charter of Fundamental Rights of the European Union.”

O'Donnell J stated that he was,

“satisfied that the current State response to the needs of IP applicants who are acknowledged to be without accommodation is inadequate to the point that the rights of the class of person concerned in these proceedings under Article 1 of the Charter of Fundamental Rights of the European Union have been breached by the State. As noted by the CJEU 4 in clear and unequivocal terms in Saciri 5 and Haqbin 6, a failure to provide for the basic needs of applicants amounts to a breach of their right to human dignity.”

It is apparent from the affidavits in this case that the urgency – the emergency – represented by the need to provide such accommodation continues.

PLENARY SUMMONS – BRIEF DESCRIPTION

5 These proceedings were started by plenary summons issued on 16 August 2024, which was amended, as to the identity of the defendants, on 30 September 2024. The general indorsement of claim on the summons is not the usual short form endorsement. It states at some length the matters on which the Plaintiffs rely and the reliefs which they seek. It is no less valid by its length but it is impractical to set out here in full. While the Defendants have appeared, no Statement of Claim has been delivered. However, the Plaintiff's substantive pleaded complaints may be briefly summarised as follows:

• • They object, on various pleaded grounds, to the accommodation of migrants at the former Crown Paints Site in Coolock, Dublin 17.

• • They object, on various pleaded grounds and more generally, to the immigration of migrants to the State.

• • They allege various wrongs on the part of An Garda Síochána in and about the policing of what they describe as peaceful protests against the accommodation of migrants at the former Crown Paints Site (“the Site”). In particular, and though the torts alleged are not identified as such, the First Plaintiff (“Mr Croghan”), a Coolock resident, alleges assault and battery of his person by members of An Garda Síochána on the occasion of what he asserts was a peaceful protest outside the former Crown Paints Site on 16 July 2024. Mr Croghan sets out in the Plenary Summons a detailed narrative account of the alleged occurrences on that occasion and essentially repeats that account on affidavit in this motion. The Second Plaintiff (“Ms Farrelly”), a Coolock resident, makes similar allegations as to the policing of a protest on 15 July 2024 – though it is unclear if she complains of battery as opposed to assault. However, it should be said that these allegations did not...