Diamrem Ltd v Clare County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 16 June 2021
• Neutral Citation: [2021] IEHC 408
• Date: 16 June 2021
• Docket Number: [2017 No. 5599 P]
• Court: High Court

Between

Diamrem Limited

Plaintiff

and

Clare County Council

Defendant

[2021] IEHC 408

[2017 No. 5599 P]

THE HIGH COURT

Want of prosecution – Inordinate and inexcusable delay – Balance of justice – Defendant seeking to have the proceedings dismissed – Whether there was inordinate and inexcusable delay

Facts: The plaintiff, Diamrem Ltd, sought the following reliefs in the plenary summons it issued on 20th June, 2017: damages for misfeasance of public office; a declaration that the defendant, Clare County Council, deliberately and consciously continued to use the car park on the eastern side of the Cliffs of Moher, Co. Clare (the Eastern Car Park), despite knowing that the continued use was unlawful; an order prohibiting the County Council from continuing to use the Eastern Car Park; and a declaration that the County Council had interfered with Diamrem’s constitutional rights. The amended plenary summons which Diamrem sought permission from the High Court to file sought in addition to the foregoing, damages for breach of legitimate expectations. The County Council sought to have the proceedings dismissed on the grounds of inordinate and inexcusable delay. Dismissal was further sought on the grounds that Diamrem had failed to deliver a statement of claim within the time permitted by O. 27, r. 1 of the Rules of the Superior Courts. In response to the motion to dismiss, issued by the County Council on 15th May, 2019, Diamrem put forward a number of reasons for the delay in progressing the proceedings and issued a motion to amend their plenary summons and to extend the time in which to deliver a statement of claim.

Twomey J held that the delay by Diamrem in prosecuting the proceedings was inordinate and inexcusable and that the balance of justice was in favour of the dismissal of the proceedings. The Court therefore granted the order sought by the County Council.

Twomey J held that the motion brought by Diamrem to amend the plenary summons and extend the time for delivery of the statement of claim necessarily became moot.

Proceedings dismissed.

JUDGMENT of Mr. Justice Twomey delivered on the 16th day of June, 2021

INTRODUCTION

1 This is a case in which this Court considers the effect of the call by the Supreme Court in Comcast International Holdings Incorporated & Ors. v. Minister for Public Enterprise & Ors. [2012] IESC 50 (“ Comcast”) for a sea-change in the indulgent attitude of the courts to litigants who are guilty of delay in the prosecution of their proceedings.

2 The context is a delay of 22 months from the date when the plenary summons was issued by the plaintiff to the date when the motion to dismiss was issued by the defendant.

3 For the reasons set out below, and despite the fact that the plaintiff can point to cases in the past where longer delays were tolerated by the Irish courts, this Court finds, in reliance on Comcast, that the proceedings should be dismissed for delay.

SUMMARY

4 In the substantive proceedings, the plaintiff (“Diamrem”) claims that the operation by the defendant (the “County Council”) of a car park located adjacent to the Cliffs of Moher Visitor Centre in Co. Clare has prevented Diamrem from implementing a park and ride facility for visitors to the Cliffs of Moher.

5 In essence, it is Diamrem's case that the car park the subject of these proceedings, on the eastern side of the Cliffs of Moher (the “Eastern Car Park”), was only to be used on a temporary basis during the construction of the Visitor Centre at the Cliffs of Moher and that the continued use by the County Council of that car park is unlawful. Diamrem claims that the use of the Eastern Car Park was to cease as soon as the construction period ended and that the County Council was then obliged to facilitate the implementation of the park and ride service, with a view to having visitors access the Visitor Centre using that service.

6 In brief terms, Diamrem seeks the following reliefs in the plenary summons it issued in this case on 20th June, 2017:

The amended plenary summons which Diamrem is seeking permission from this Court to file seeks in addition to the foregoing, damages for breach of legitimate expectations.

• • damages for misfeasance of public office,

• • a declaration that the County Council deliberately and consciously continued to use the Eastern Car Park despite knowing that the continued use was unlawful,

• • an order prohibiting the County Council from continuing to use the Eastern Car Park, and,

• • a declaration that the County Council has interfered with Diamrem's constitutional rights.

7 The kernel of the dispute centres on the opposing views of the parties in relation to the continued use of the Eastern Car Park. That car park is located to the east of the R478 – the road which runs north to south alongside the Cliffs of Moher. The Visitor Centre is located next to the Cliffs and to the west of the R478.

8 In particular, Diamrem claims that the grant of planning permission for the Visitor Centre provided for a permanent car park on the western side of the R478 and on the site of the Visitor Centre (the “Western Car Park”) and also provided for the Eastern Car Park on the eastern side of the R478 to be used only during the period of construction. In effect, it is Diamrem's case that certain representations were made to it that the County Council no longer planned to build the Western Cark Park and that instead, a mobility strategy would be put in place, with a view to access being provided to the Visitor Centre through park and ride facilities. Diamrem says that representations were made by the County Council that the use of the Eastern Car Park would cease once the necessary permissions were obtained for the park and ride facilities.

9 For its part, the County Council says that a decision was made by it not to build the Western Car Park on the site of the Visitor Centre and that modifications were made to the design proposals following certain consultations pursuant to Part 8 of the Planning and Development Regulations, 2001. As a result of those modifications, the County Council says that it is entitled to continue to use the Eastern Cark Park, with the effect that this temporary car park would become the permanent car park.

10 The County Council now seeks to have the proceedings dismissed on the grounds of inordinate and inexcusable delay. Dismissal is further sought on the grounds that Diamrem has failed to deliver a Statement of Claim within the time permitted by O. 27, r. 1 of the Rules of the Superior Courts. In response to this motion, Diamrem has put forward a number of reasons for the delay in progressing the proceedings. These reasons are considered in detail in this judgment.

11 The motion to dismiss was issued by the County Council on 15th May, 2019. Some six months later, Diamrem issued a motion to amend their plenary summons and to extend the time in which to deliver a Statement of Claim.

12 Having considered the submissions made by the respective parties, and for the reasons set out herein, this Court is of the view that the delay by Diamrem in prosecuting the proceedings is inordinate and inexcusable and that the balance of justice is in favour of the dismissal of the proceedings. This Court will therefore grant the order sought by the County Council. It follows therefore that the motion brought by Diamrem to amend the plenary summons and extend the time for delivery of the Statement of Claim necessarily becomes moot.

BACKGROUND

13 There is a somewhat protracted history to the case.

14 Planning permission was granted by An Bord Pleanála for the Cliffs of Moher Visitor Centre on 17th December, 2002 (An Bord Pleanála ref. 03/128695). It is not necessary at this stage to detail what was contained in that grant of planning permission, although it is relevant to point out that it included permission for the development of a permanent car park on the site of the Visitor Centre – the Western Cark Park. It should be noted however, that the contents of that planning permission have been the subject of significant dispute between the parties over a number of years, the core issue being the provision in that planning permission for a temporary car park – the Eastern Car Park — which is the subject of these proceedings.

15 Following the grant of planning permission, construction of the Visitor Centre took place. It is common case however that the permanent car park, the Western Car Park, permitted in the planning permission was never built on the site of the Visitor Centre. Instead, the temporary car park, the Eastern Car Park, has continued to be used as a car park for the Visitor Centre.

16 Planning permission was subsequently granted to Atlantis Limited for the park and ride facilities. Mr. John Flanagan is a director of Atlantis Limited and Diamrem and he has sworn affidavits on behalf of Diamrem. There are two park and ride facilities currently in existence, located in Liscannor and Coogyulla, Doolin, respectively, and both are owned and operated by Diamrem and an associated company (Diamrem Equity Holdings Limited).

17 Reference is made below to separate proceedings taken by Diamrem against the County Council in relation to the Eastern Car Park. Those proceedings were taken under s. 160 of the Planning and Development Act, 2000 (as amended) with claims made therein that the Eastern Car Park was an unauthorised structure which ought to be removed (the “s. 160 proceedings”). For ease of reference, the within plenary proceedings will be called the “ misfeasance proceedings” throughout the course of this judgment. It is relevant to note there was a period of some seventeen months where both the s. 160 proceedings and the misfeasance proceedings were live in the High Court. It is part of the County Council's case in the present application that Diamrem failed to progress the misfeasance proceedings during...