Enright v Ballybeggan Park Company Ltd

JurisdictionIreland
JudgeMr. Justice Garrett Simons
Judgment Date24 August 2022
Neutral Citation[2022] IEHC 494
CourtHigh Court
Docket Number2022 No. 2508 P
Between
Martin Enright
Noel Leen
Tim Guiheen
Thomas Ward
Michael Hartnett
Brendan Nolan
Plaintiffs
and
Ballybeggan Park Company Limited
Defendant

[2022] IEHC 494

2022 No. 2508 P

THE HIGH COURT

Interlocutory injunction – Serious issue to be tried – Balance of justice – Plaintiffs seeking an interlocutory injunction – Whether the plaintiffs had established a serious issue to be tried

Facts: The plaintiffs, Mr Enright, Mr Leen, Mr Guiheen, Mr Ward, Mr Hartnett and Mr Nolan (the trustees and officers of County Kerry Coursing Club), applied to the High Court for an interlocutory injunction. The Coursing Club sought orders restraining the defendant, Ballybeggan Park Company Ltd (the owners of Ballybeggan Park in Kerry), from obstructing access to the former racecourse by members of the Coursing Club for the purposes of preparing the lands for a coursing meeting which was scheduled to be held in January 2023. The Coursing Club sought keys to a third and fourth gate on the lands, saying that the access provided through two other gates was insufficient.

Held by Simons J that the Coursing Club had failed to establish that there was a serious issue to be tried. Simons J also considered, de bene esse, the balance of justice and concluded that it tells against the grant of an interlocutory injunction. In particular, Simons J noted that the Coursing Club had full vehicular and pedestrian access to the lands since 6 July 2022, i.e. some two weeks before the application for an interlocutory injunction was first moved. Simons J held that the Coursing Club had failed to demonstrate any necessity for access via the Burlington Gate until, at the very earliest, October. Simons J found that the supposed urgency was contrived and the application for an interlocutory injunction was vexatious.

Simons J held that the application for an interlocutory injunction would be refused.

Application refused.

Appearances

David Sutton SC and Elizabeth Murphy for the plaintiff instructed by O'Donoghue Griffin LLP

Arthur Cush (with Henry Downing SC) for the defendant instructed by Downing, Courtney & Larkin LLP

JUDGMENT of Mr. Justice Garrett Simons delivered on 24 August 2022

INTRODUCTION
1

This judgment is delivered in respect of an application for an interlocutory injunction. The application is brought by the trustees and officers of an unincorporated association, County Kerry Coursing Club (“ the Coursing Club”).

2

The Coursing Club seeks orders restraining the owners of Ballybeggan Park in Kerry from obstructing access to the former racecourse by members of the Coursing Club for the purposes of preparing the lands for a coursing meeting which is scheduled to be held in January 2023. The Coursing Club seeks keys to a third and fourth gate on the lands, saying that the access currently provided through two other gates is insufficient.

FACTUAL BACKGROUND
3

The lands comprising Ballybeggan Park are owned by Ballybeggan Park Company Ltd (“ the Landowner” or “ the Company”). The title to the part of the lands the subject-matter of these proceedings is unregistered. (Title to part of the overall lands is registered and the relevant folios have been exhibited). It is apparent from these title documents that the lands were not donated to the people of Tralee as had, initially, been alleged by the Coursing Club.

4

The Landowner acquired ownership of the lands on 31 October 1944 for a purchase price of £4,000. It has been explained on affidavit that the acquisition of the lands was funded by fifty individual shareholders of the company each purchasing a shareholding with a nominal value of £100.

5

The Coursing Club asserts that it holds 8,126 ordinary shares in the Company through nominees, and that this represents approximately 8 per cent of the issued shares, thus making the club the largest single shareholder in the Company. The Coursing Club also asserts that it is entitled to appoint a director to the board of the Company.

6

The coursing of hares has been carried out on part of the overall lands at Ballybeggan Park since at least 1883. There is some disagreement between the parties as to the date upon which this activity was first carried out by the Coursing Club. The Coursing Club asserts that it has been responsible for coursing on the lands since at least 1937. The Landowner asserts, conversely, that it initially operated the coursing activities itself, and that it was only since the first years of the 1970s that coursing activities have taken place on the lands under a licence agreement entered into between the Coursing Club and the Landowner. In the initial years, fees were paid by the Coursing Club to the Landowner, but fees have not been sought in more recent years.

7

It is common case that the part of the lands used for coursing have been leased out to a local farmer and that he takes a cut of silage in May and September of each year.

8

To assist the reader in understanding the dispute between the parties in respect of access, it is necessary to describe, briefly, the layout of Ballybeggan Park. There are four access points. There are two gates at the northern boundary of the site. These are described as “ the main entrance” and “ the Wicket Gate”, respectively. The Coursing Club has been provided with keys to these two gates since 6 July 2022 and thus has vehicular and pedestrian access to all of the lands (save the grandstand area). There are two gates at the southern boundary of the site. These are described as “ the Five Furlong Gate” and “ the Burlington Gate”, respectively. The Coursing Club does not currently have keys to these two gates.

9

The only part of the lands to which the Coursing Club does not currently have access to is the area where the grandstand and associated buildings are located. The Landowner has stated that access to this area is provided by the caretaker on or around the date of a coursing meeting and the Coursing Club make no complaint in this regard.

10

The essence of the Coursing Club's submission in respect of access is that the club requires access from the southern end, via the Burlington Gate, from September. This is because, or so it is submitted, access from the northern end will be obstructed from September onwards, once temporary fences have been erected by the Coursing Club for the purpose of facilitating the training of the hares for the meeting in January 2023. However, as discussed at paragraphs 46 et seq. below, the Coursing Club has failed to put forward any admissible evidence to the effect that fencing has ever been erected prior to the month of October in any previous year.

11

The various gates to Ballybeggan Park are kept locked. On 18 June 2022, members of the Coursing Club discovered that the locks had been changed with the consequence that the keys which they held no longer worked. The response of the Coursing Club was to notify the Landowner's solicitors, by letter dated 21 June 2022 from the club's own solicitors, of its intention to issue High Court proceedings immediately. The proceedings were issued two days later. The procedural history is set out in detail under the next heading below. For present purposes, it is sufficient to note that as of 6 July 2022, the Coursing Club had been provided with keys to the main entrance and the Wicket Gate.

12

The Landowner has been critical of the fact that rather than seeking keys to the new locks from the chairman of the racecourse as had been done on previous occasions when the locks were changed, the Coursing Club instead sent a solicitor's letter and issued legal proceedings. The Landowner also asserts that the locks are changed from time to time for security reasons, and had been changed on 15 June 2022 on the advice of their security contractors because the lands were being accessed by third parties. It is said that the Burlington Gate and the Five Furlong Gate are at a significant remove from the grandstand area where the security contractors concentrate their operations and hence these gates cause the Landowner the most concern.

13

More generally, it is apparent from the affidavits that there is an ongoing dispute between the Landowner and the Coursing Club in respect of what the latter characterises as “ corporate governance” issues. This dispute came to the fore when the Coursing Club became aware, from newspaper reportage, that the Landowner was considering the sale of Ballybeggan Park. The Coursing Club objects to any proposed sale, at least in circumstances where an alternative venue has not been provided for coursing activities. It is said that an agreement to provide an alternative venue had been reached in the context of a previous proposal to sell the lands in 2008. The proposed sale in 2008 did not ultimately proceed because of the property crash. The Coursing Club says it might take a “ pragmatic view” to the sale of the lands now were a similar accommodation to be provided.

14

In May 2022, the Coursing Club purported to issue proceedings before the Circuit Court pursuant to Section 212 of the Companies Act 2014. This section is intended to ensure protection for minority shareholders who complain that the affairs of a company are being conducted, or that the powers of the directors of the company are being exercised, in an oppressive manner.

15

The principal complaint made in those Circuit Court proceedings had been that the directors of the landowning company were, at the time, maintaining that the board of directors alone was empowered to sell the lands and that the authorisation of the shareholders at general meeting was not required. This conduct was said to be oppressive. The Circuit Court proceedings were subsequently discontinued following a detailed letter of response from the Company's solicitors on 14 June 2022. (The notice of discontinuance was served on 11 July 2022).

16

In addition to objecting to the jurisdiction of the...

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