Fallon v an Bord Pleanála

JurisdictionIreland
JudgeMcCarthy J.,FINLAY C.J.
Judgment Date01 January 1992
Neutral Citation1991 WJSC-SC 1911,1991 WJSC-SC 1902
CourtSupreme Court
Docket Number[S.C. No. 236 of 1990]
Date01 January 1992
FALLON v. BORD PLEANALA
FALLON
v.
AN BORD PLEANALA AND MICHAEL BURKE

1991 WJSC-SC 1902

236/90

THE SUPREME COURT

Synopsis:

PRACTICE

Appeal

Costs - Security - Provision - Plaintiff - Principles applicable - Planning code - Development - Retention permission challenged by nominal plaintiff - Rules of the Superior Courts, 1986, order 58, r. 17 - (236/90 - Supreme Court - 16/11/90) - [1992] 2 I.R. 380

|Fallon v. An Bord Pleanala|

Citations:

MIDLAND BANK V CROSSLEY COOKE 1969 IR 56

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S28

COURTS OF JUSTICE ACT 1924 S29

1

JUDGMENT (EX TEMPORE) delivered on the 16th November1990by FINLAY C.J.

2

This is an application made by the second named Respondent in an appeal pending before this Court, pursuant to the Superior Courts Rules for an Order directing that the Appellant should provide security forcosts.

3

The proceedings the subject matter of the original action, which are appealed to this Court, and in which the present appeal is pending, is an action brought by Mr. Patrick Fallon against An Bord Pleanala and a Mr. Michael Quirke as Defendants, and they are theRespondents on the appeal, in which he seeks an Order that a decision of An Bord Pleanala granting permission to retain certain premises, consisting of five bungalows at Rosses Point, in the County of Sligo, was invalid and must be quashed and set aside.

4

The application for security for costs is brought upon the basis that there are special circumstances in this case which, having regard to the previous decisions of this Court and, in particular, the decision of this Court in The Midland Bank v. Crossley Cooke, would warrant the granting of an Order for security for costs.

5

The Plaintiff is a telephonist/receptionist employed since 1984, on a temporary basis, in St. John's Hospital in Sligo, and he lives at 9 Abbeyville, Sligo. He instituted these proceedings in relation to a planning permission granted, as I have indicated, to the second-named Defendant by An Bord Pleanala. He had previously instituted proceedings in regard to a planning permission granted in 1985. He does not inany affidavit suggest that he has any means other than his ordinary earning capacity, and there is no suggestion of any description on the papers before this Court that he could be capable of paying the costs of this appeal if he failed in it, having failed in the High Court, as he did, if they were awarded in favour of the Respondents.

6

The first condition set forth in the decision of this Court in Midland Bank v. Crossley Cooke, 1969 IR, in the judgment of Walsh J., is therefore satisfied that the appellant is a person who suffers from a poverty, which makes it improbable that he could possibly satisfy costs or any substantial part of the costs of the Defendants if they were successful in the appeal.

7

The second mandatory condition, as it were, laid down in that judgment is that the Court should not ordinarily entertain an appplication for security for costs if it is satisfied that the question at issue inthe case is a question of law of public importance. That, therefore, is the next issue that this Court must determine, and I am satisfied that the issue as outlined with regard to the powers of the planning authority under Section 28 of the Act of 1963, and the events that have happened in this case and in the manner in which the issue arises in this case is not, and could not be characterised as a point of law of public importance. It is a point of law of importance, but so is every point of law arising in any case, but it is peculiarly to deal with and arising from a series of complex facts in this particular case. A simple analogy, which I think is the standard I would be bound to apply, is that if this were a point of law arising on the same character and type, and in the same way on individual facts in a criminal case, there could be no question of giving a certificate under Section 29 of the Courts of Justice Act so as to lead to an appeal from the Court of Criminal Appeal to this Court.

8

The third question, then, that arises is whether there is from those two, as it were, mandatory preconditions, being covered by the Respondent's application, whether there are special circumstances within the rule and within the decisions of this Court which warrant the making of an order for security for costs. In this regard, the Respondent's case is a staightforward one, and it is twofold: it is, firstly that this is a nominal appellant and was a nominal plaintiff, and that the history of his entry into this case and, therefore, the origin of his position as an appellant against the dismissal of his claim in the High Court, is that he was chosen as a man of straw at a meeting which was held of a number of people objecting to this development, and seeking a method of instituting proceedings. That is the first allegation, and it is a very serious one, indeed, and I will examine whether it is established or not in a moment. The second allegation, which I view with equal seriousness, becauseof the recent experiences of the Court, is that the action itself was, at the same meeting, recommended by a lawyer who was present, as having the extremely good value of being able to drag on and obstruct the development which was being proposed, and to which the parties there objected. If that is a true intention on the part of the people who were apparently supporting this action, then it constitutes something of extreme seriousness with which this Court in recent times has often been faced, and it creates a problem, of course, as between the right of persons to litigate and the right of persons, by litigation, to seek unjustly to interfere with the rights of other bodies.

9

With regard to the first of these two items, I am satisfied that the affidavit filed by Senator Farrell in the earlier proceedings and exhibited and, therefore, brought in as part of the evidence in these proceedings by the affidavit of Mr. Burke filed for this particular motion, is a very clearcut and concrete account ofstatements made by three separate people at the meeting at which Mr. Fallon was chosen, or elected, to become the Plaintiff in this action. Those three allegations made against three officers of this Court as to what they said, or to statements - they are not allegations in the sense that there was necessarily anything wrong with what they said - but the statements ascribed to them have never been denied, either by them, as one would have expected, as being the highest possible form of evidence on this point, or even denied in a specific way by the Plaintiff, who must have been present at that meeting, but he has filed a previous affidavit and a present affidavit which lack precision, and it is difficult to escape a suspicion that the lack of precision has an element of carefulness in it, that is a person who is careful about not making certain assertions. In those circumstances, I am driven to the conclusion that the probability is, and I can only deal with a probability, the probability is that thisPlaintiff was chosen as a man of straw by a number of other people, many of whom might have been a mark if they had been the Plaintiffs, and that he probably has not got any very special, he clearly has no special material interest in the result of this action, and he may not have any very special aesthetic or general interest, and he certainly has failed to meet the challenge contained in the affidavit in this application and explain to this Court why a young man of 27 or 28 years of age, starting into his career in a modest way, should imperil his entire financial future by taking on litigation of this description.

10

In those circumstances, and combined with the uncontradicted allegation that one of the intentions behind the proceedings, in the first instance, at least, was the dragging out of this matter which has proved very successful, in so far as these buildings are still unsold, and the original challenge to the planning permission of 1985, lead me to the conclusion that thisis a case in which there are special circumstances. They exist in that way. The other two conditions necessary under the decision are there, and I would grant this application.

11

rjud64

FALLON v. BORD PLEANALA

BETWEEN

PATRICK FALLON
Plaintiff/
Appellant

and

AN BORD PLEANALA AND MICHAEL BURKE
Defendants/
Respondents

1991 WJSC-SC 1911

236/1990

THE SUPREME COURT

Synopsis:

PRACTICE

Appeal

Costs - Security - Amount - Sufficiency - General rule - Constitution - Personal rights - Recourse to the Courts - Planning code - Development - Retention permission challenged by nominal plaintiff - Rules of the Superior Courts, 1986, order 58, r. 17 - Constitution of Ireland, 1937, Article 40 - (236/90 - Supreme Court - 15/5/91) - [1992] 2 I.R. 380 - [1991] ILRM 799

|Fallon v. An Bord Pleanala|

Citations:

THALLE V SOARES & ORS 1957 IR 142

PERRY V STRATHAM 1928 IR 580

SEE CO LTD V PUBLIC LIGHTING SERVICES LTD 1987 ILRM 255

MIDLAND BANK LTD V CROSSLEY-COOKE 1969 IR 56

1

JUDGMENT delivered on the 15th day of May 1991by FINLAY C.J.

2

This is an appeal by the second-named Defendant against an Order made byEgan J. in the High Court, dismissing an appeal by this Defendantagainst an Order made by the Master of the High Court on the 22ndFebruary 1991, fixing as security for costs to be paid by the Plaintiffand Appellant in respect of a pending appeal in these proceedings in asum of £2,500. Onthe 16th November 1990, this Court granted to this Defendant an Orderfor security for costs. The Court in ruling upon that application,firstly, ruled that it was satisfied that the Plaintiff was a person ofinsufficient means to meet an award of costs against him were he to failin the appeal and, secondly, held that the appeal did not involve aquestion of law of public importance.

3

In addition, the Court expressed the view that the...

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