Cullen and Others v Wicklow County Manager

• Jurisdiction: Ireland
• Judge: O'Donnell, J.
• Judgment Date: 30 July 2010
• Neutral Citation: [2010] IESC 49
• Date: 30 July 2010
• Court: Supreme Court
• Docket Number: [S.C. Nos. 268, 270 and 271 of 2003, No. 509 of 2004, No. 24 of 2005 and No. 313 of 2009]

[2010] IESC 49

THE SUPREME COURT

Hardiman, J.

Fennelly, J.

O'Donnell, J.

268, 270, 271/03

509/04, 24/05 & 313/09

Cullen & Ors v Wicklow County Manager

Between:

THOMAS CULLEN, PATRICK DORAN AND NICHOLAS KELLY

Applicants/Appellants

-and-

THE WICKLOW COUNTY MANAGER

Respondent

-and-

AN BORD PLEANALA AND ANDREW BYRNE

Notice Parties

COUNTY MANAGEMENT ACT 1940 S17

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4(9)

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4(10)

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4(11)

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4(12)

P & F SHARPE LTD & GROVE DEVELOPMENTS LTD v DUBLIN CITY & COUNTY MANAGER & DUBLIN CO COUNCIL 1989 IR 701 1989 ILRM 565

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(3)(C)

LOCAL GOVT ACT 2001 S140

GALLIGAN & SWEETMAN IRISH PLANNING LAW & PROCEDURE 1997 220

SMITH v EAST ELLOE RURAL DISTRICT COUNCIL & ORS 1956 AC 736 1956 2 WLR 888 1956 1 AER 855

CRAIG ADMINISTRATIVE LAW 5ED 2003 390

LEWIS JUDICIAL REMEDIES IN PUBLIC LAW 3ED 2004 187

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3B)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S30

COUNTY MANAGEMENT ACT 1940 S32

COUNTY MANAGEMENT ACT 1940 S19

KEANE THE LAW OF LOCAL GOVT IN THE REPUBLIC OF IRELAND 1ED 1982 35

STREET THE LAW RELATING TO LOCAL GOVT 1955

KEANE THE LAW OF LOCAL GOVT IN THE REPUBLIC OF IRELAND 1ED 1982 181

MILEY v FLOOD (PLANNING TRIBUNAL) 2001 2 IR 50 2001 1 ILRM 489 2003/36/8641

BURSILL v TANNER 1885-86 16 QBD 1

SOLICITORS (AMDT) ACT 1994 S68

RSC O.15 r13

MCILWRAITH v JUDGE FAWSITT & GILROY AUTOMATION LTD 1990 1 IR 343 1990 ILRM 1 1989/7/1937

CURRAN v FINN 2001 4 IR 248

WHITE THE LIABILITY IN COSTS OF THE INSURER AS DOMINUS LITIS AT IRISH LAW 2003 38 IJNS 352

AIDEN SHIPPING CO LTD v INTERBULK LTD (NO 2) 1986 AC 965 1986 2 WLR 1051 1986 2 AER 409

MURPHY & ANOR v YOUNG & CO'S BREWERY PLC & ANOR 1997 1 WLR 1591 1997 1 AER 518 1997 CLC 469

FOREST PTY LTD v KEEN BAY PTY LTD & ORS 4 ACSR 107

KNIGHT & ANOR v FP SPECIAL ASSETS LTD & ORS 107 ALR 585 174 CLR 178 1992 HCA 28

BOROUGH FUNDS (IRL) ACT 1888 S3

LOCAL GOVT (IRELAND) ACT 1898 S17

COUNTY MANAGEMENT ACT 1940 SECOND SCHED

COUNTY MANAGEMENT ACT 1940 SECOND SCHED PARA 7

LOCAL GOVERNMENT

County manager

Executive function - Role of elected members - Resolution of County Council requiring county manager to carry out particular executive function of local authority - Whether county manager obliged to carry out resolution - Whether consideration of legality of resolution required -Miley v Flood [2001] 2 IR 50 approved; Wicklow County Council v Wicklow County Manager (Unrep, O'Caoimh J, 26/2/2003) not followed; Aiden Shipping Ltd v Interbulk Ltd [1986] AC 965, Murphy v Young's Brewery [1997] 1 WLR 1591 and Forest Pty Ltd v Keen Bay Ltd (1991) 4 ACSR 107 considered - County Management Act 1940 (No 12), s 17 - City and County Management (Amendment) Act 1955 (No 12), s 4 - Appeal allowed in part (268, 270 & 271/2003, 509/2004, 24/2005 & 313/2009 - SC - 30/7/2010) [2010] IESC 49

Cullen v Wicklow County Manager

PRACTICE AND PROCEDURE

Costs

Joinder of parties - Interest in proceedings - Initiation of proceedings - Responsibility for costs - Whether order for costs should be made - Whether parties properly joined in proceedings - Whether court entitled to join parties to proceedings for purpose of costs order - Whether parties commenced proceedings in name of another legal entity - Whether possible to fix non party with costs - McIlwraith v Judge Fawsitt [1990] 1 IR 343 distinguished - Rules of the Superior Courts 1986 (SI 15/1986), O 15, r 13 - Notice party's appeal against costs order allowed (268, 270 & 271/2003, 509/2004, 24/2005 & 313/2009 - SC - 30/7/2010) [2010] IESC 49

Cullen v Wicklow County Manager

SOLICITORS

Privilege

Legal professional privilege - Identity of instructing parties - Nature and extent of privilege - Legal advice - Whether identity of client privileged - Whether confidentiality of identity sought at time of instruction - Whether legal advice fully disclosed - Solicitors (Amendment) Act 1994 (No 27), s 68 - Amount of costs ordered reduced (268, 270 & 271/2003, 509/2004, 24/2005 & 313/2009 - SC - 30/7/2010) [2010] IESC 49

Cullen v Wicklow County Manager

Facts: The issue arose on appeal as to the question of costs arising from a protracted dispute concerning an application for planning permission in Co. Wicklow by Mr. Byrne, the notice party, and events which transpired in Wicklow County Council as a result. The High Court had found the actions of the appellants to have been misguided and frustratingly obstructive yet bona fides. The proceedings had been particularly lengthy and County Councillors had engaged in a dispute with the County Manger as a result to direct him to refuse the planning permission. The dispute had related to the application of s. 4 City and County Management (Amendment) Act 1955.

Held by the Supreme Court per O' Donnell J. (Hardiman, Fennelly JJ.), that the Court would allow the appeal of Mr. Byrne and substitute an order that he would be entitled to his costs as against the respondent, who was indemnified by the Council. As the applicants were acting at all times bona fide in the belief that they were entitled to so act, the Court came to the conclusion that the quantum of costs should be reduced somewhat and that the appellants should be directed to pay the respondent's costs on the basis of a two day hearing when such costs be taxed in default of agreement. The County Council would have to bear the respondents' costs and the costs of the successful country councillors and Mr. Byrne. The appellant had to pay the two days costs.

Reporter: E.F.

1 Judgment delivered by O'Donnell, J. on the 30th day of July 2010.

2 Judgment delivered by O'Donnell J. [nem diss]

3 It is difficult to credit, even now, that virtual civil war raged in Wicklow County Council in the summer in the year 2000 over a proposal to convert a milking parlour into a pet crematorium at Redcross, County Wicklow. That dispute has followed a long, tortuous and costly path to this Court, almost ten years later. The issue which was argued in this court over two days was the question of the liability for the costs of this protracted litigation.

Section 4 of the City and County Management (Amendment) Act 1955

4 Nominally the issue in dispute was the question of the grant or refusal by the planning authority, Wicklow County Council, of the planning permission sought. But the dispute which was ignited by the planning application also had its roots in a legal issue which could be traced to what has been described as the unique form of local governance first introduced into Ireland in 1929 in Cork and made of general application by the City and County Management Act 1940. It is reasonably well known that the 1940 Act grafted onto the local government system created by the Local Government Act 1898, a system of management by a professional executive headed by a county manager who could only be removed with the concurrence of the Minister for Local Government. The Act divided the functions of a local authority into those reserved functions to be carried out by the elected members, and executive functions, defined somewhat unhelpfully by s.17 of the 1940 Act, as "any other function to be performed by a local authority". The division was not however exclusive. Section 4 of the City and County Management (Amendment) Act 1955 permitted the elected representatives to give a binding direction to the Manager as to the exercise by him of any executive function of the Council.

5 That somewhat controversial section is complex both as a matter of procedure and substance. It required that a valid resolution had to be signed by three members and had to be considered at a special meeting which was on a specified day not less than seven days after the notice. The motion had to be passed by a majority constituting at least one third of the total members of the council. If the motion was returnable for the day of an ordinary meeting it was to be dealt with before any other business. The Manager was obliged to comply only "if and when and so far as money for the purpose is or has been provided". Subsection 9 of section 4 provided that any section 4 resolution could not be general in nature. Any such purported resolution would be void. Subsection 10 provided for the resolution by the Minister for Local Government of any dispute between the elected members and the Manager as to whether a resolution contravened subsection 9. Similarly, subsection 11 prohibited section 4 resolutions from purporting to apply to the health functions of a local authority and subsection 12 again provided that any dispute in this regard would be determined by resort to a Minister of Central Government, in this case the Minister for Health.

6 It is apparent from the structure of s.4 that it was intended to be exercised only exceptionally. In the event the power was exercised extensively and as Mr Justice O'Hanlon observed in P & F Sharpe and Grove Developments v Dublin City and County Manager and Dublin County Council [1988] IR 701, excessively. While the initial division of local authority powers and functions into reserved and executive functions was bound to give rise to some friction and dispute, the existence of s.4, and its statutory predecessor gave rise to the potential for even more conflict between elected members and the executive of any local authority since it gave the elected members the power to override the executive, but only if the very technical procedural provisions of the section were complied with. It is to be noted that subsections 10 and...