Donatex Ltd and Another v Dublin Docklands Development Authority
| Jurisdiction | Ireland |
| Judge | Mr Justice Charleton |
| Judgment Date | 31 July 2012 |
| Neutral Citation | [2012] IEHC 318 |
| Court | High Court |
| Date | 31 July 2012 |
[2012] IEHC 318
The High Court
Between
and
NORTH WALL PROPERTY HOLDING CO LTD & DUNNE v DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY UNREP FINLAY GEOGHEGAN 9.10.2008 2008/46/10025 2008 IEHC 305
DONATEX LTD & MCNAMARA v DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY UNREP CLARKE 29.3.2012 2012 IEHC 168
RSC O.84
DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S25
DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S18
DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY ACT 1997 S18(2)
O'DONNELL v DUN LAOGHAIRE CORP 1991 ILRM 301 1990/8/2084
O'REILLY & ORS v MACKMAN & ORS 1983 2 AC 237 1982 3 WLR 1096 1982 3 AER 1124
GILLICK v WEST NORFOLK & WISBECH AREA HEALTH AUTHORITY & DEPT OF HEALTH & SOCIAL SECURITY 1986 AC 112 1985 3 WLR 830 1985 3 AER 402
ROY v KENSINGTON & CHELSEA & WESTMINSTER FAMILY PRACTITIONER COMMITTEE 1992 1 AC 624 1992 2 WLR 239 1992 1 AER 705
BROWNE v DUNDALK URBAN DISTRICT COUNCIL 1993 2 IR 512 1993/1/126
CREDIT SUISSE v ALLERDALE BOROUGH COUNCIL 1997 QB 306 1996 3 WLR 894 1996 4 AER 129
DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33 2001/6/1371
PRACTICE AND PROCEDURE
Amendment of pleadings
Contract for sale of land - Amendment of statement of claim - Allegation defendant acted ultra vires in agreeing contract - Whether public law or private law dispute - Whether plaintiff outside of time limit for judicial review - Whether extension of time limit warranted - Whether defendant prejudiced - Whether amendment to statement of claim to be disallowed - De Roiste v Minister for Defence [2001] 1 IR 190 considered - Dublin Docklands Development Authority Act 1997 (No 7), s 18 - Application refused (2009/8128P - Charleton J - 31/7/2012) [2012] IEHC 318
Donatex Ltd v Dublin Docklands Development Authority
Facts: The parties had engaged in lengthy litigation regarding the purchase of a site in Dublin's docklands. The plaintiff alleged the defendant had misrepresented the position as to the extent of the defendant's statutory powers, and would not have dealt with the defendant had the true position been revealed. Permission to plead this point and amend the statement of claim had been granted in an earlier hearing (2012] IEHC 168).
The defendant now sought to challenge the grant of permission, arguing that the matter was a public law issue, and therefore subject to a time limit which had now expired and not suitable for an extension of time.
Held by Charleton J, that the current judgment turned on the permission to amend the statement of claim. Considering earlier case law as to public law disputes, the Court found that procedural problems were to be decided on a case to case basis. O'Reilly v Mackman [1983] 2 AC 237 considered.
In the instant case, nothing was to be gained by extracting an amendment to the statement of claim that was added when it was realised to be important. The application by the defendant would therefore be refused. De Róiste v Minister for Defence [2001] 1 IR 190 applied.
Mr Justice Charleton delivered on the 31st day of July 2012
1. This is the fourth preliminary ruling on this case. It will therefore be as concise as possible.
2. The defendant is a statutory authority for the development of the docklands of Dublin. As such it has certain defined powers under the Dublin Docklands Development Authority Act 1997. As a creature of legislation, any exceeding of its powers renders its actions legally questionable. If, for instance and as the plaintiffs claim, it did not have power to enter into a complex commercial agreement, then that agreement may be subject to the same infirmity as a contract made with a person of unsound mind or an infant. Powers in legislation are conferred on a statutory body for use within the scope of the purposes explicit within the legislation or which arise through necessary implication. Where a statutory body is given discretion as to the exercise of powers, it cannot bargain away that discretion or fetter what is supposed to be the outcome of the genuine balancing of interests in favour of its own advantage; North Wall Quay Property Holding Company Ltd & Anor v Dublin Docklands Development Authority [2008] IEHC 305. That is one of the points made by the plaintiffs in this case. But it is not all: pursuant to permission granted by Clarke J in these proceedings in March 2012, the plaintiffs were also entitled to plead that the defendant never could have entered into the agreement to buy the land that is at the heart of this dispute because it was beyond the statutory powers of the defendant; see this case at [2012] IEHC 168. The defendant now counters that this plea is a matter of public law and that the case is subject to Order 84 of the Rules of the Superior Courts and has been brought outside the time limit of six months for the commencement of certiorari and that an extension of time is not merited. To be clear, these proceedings were commenced in September 2009 and the first mention of this issue occurred in affidavits 14 months later in November 2010.
3. This case concerns the old Irish Glass Bottle site, comprising about 25 acres, and which is situated at the western end of Sandymount strand to the south of the Poolbeg peninsula on Dublin's docklands. The board of the defendant consisted of various disparate interests and included a well-known banker. The memoranda of the defendant opened to the court indicated that on 12 October 2006, the consortium of which it was part together with the plaintiffs in the purchase of the site, considered expending €220 million to secure it. For whatever reason, by 24 October of the same year, the sum which the consortium was prepared to pay for this brown field site had risen to €430 million. In the end, following a tender process which concluded in January 2007, the sum of €411 million was paid for this land. On 25 October 2006 heads of agreement had been entered into between the defendant and the first named plaintiff to effect the purchase of the site through the purchase of shares in a company called South Wharf plc. A shareholders agreement was necessary with a company called Becbay Limited along with a subscription agreement, which completed the necessary documentation between the parties mentioned and another party, a corporate entity called Mempal Limited. By 29 January 2007, the consortium had acquired the property. The details of this are not important at this juncture, save that the second named plaintiff, Bernard McNamara, is the guarantor of the share of the first named plaintiff Donatex Limited.
4. None of the parties in this litigation are now content to have bought this site at this price. The plaintiffs make the case that they would never have dealt with the defendant had they been aware that it was not entitled to fetter its discretion on a number of important matters in respect of which it is claimed the defendant made representations. Of these, the most important are the alleged ability of the defendant to bring a spur line of the LUAS tram system from Point Village into the site; the defendant's ability to deliver a form of planning permission that arises under section 25 of the Dublin Docklands Development Authority Act 1997; and the delivery by the defendant of a...
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