Henry Tolan v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 29 July 2008
• Neutral Citation: [2008] IEHC 275
• Docket Number: [2007
• Court: High Court
• Date: 29 July 2008

[2008] IEHC 275

THE HIGH COURT

[320 CA/2007]

Tolan v Bord Pleanála

BETWEEN

HENRY TOLAN

PLAINTIFF

AND

AN BORD PLEANÁLA

DEFENDANTS

LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) REGULATIONS 1994 SI 86/1994 REG 72A

MEDICAL PRACTITIONERS ACT 1978 S52

INVESTMENT INTERMEDIARIES ACT 1995 S77(2)

1 Mr. Justice Hedigan delivered on the 29th July, 2008

2 This is a case comes before me as an appeal from the Circuit Court. In it, the plaintiff claims,

3 (a) A mandatory injunction directing the defendant to remove from the planning file a letter written by one Gerard Lynam, dated 13 ^thOctober, 1999, and all documents referring thereto;

4 (b) Damages for defamation;

5 (c) Other reliefs;

6 (d) Aggravated damages.

7 The case arises from the act of a public representative in writing and having delivered to the defendants, a letter that contained false and scurrilous allegations against the plaintiff. This letter purported to be written in connection with the plaintiff's application for planning permission for a house. The letter was received by the defendant, even though it acknowledged at the time of reception, that it contained nothing relating to planning issues. It remains on the file to this day. From this reckless and irresponsible act by a public representative, has flowed enormous distress, grief and suffering for the plaintiff and his wife, whom everyone agrees, and this court reiterates and emphasizes, are entirely innocent of the scurrilous allegations made against them. When the existence of this letter came to his notice, the plaintiff and his wife made enquiries about it. Apparently, the contents of this letter were being bandied about among elected representatives and others. The plaintiff was refused access to the letter by the defendants because it had not decided whether to circulate it for comment.

8 Following discussion with the public representative in question, he agreed that he had mistaken the plaintiff's identity for that of someone else. He agreed he was wrong, and through his solicitors, advised the defendants of this fact. He thereby explicitly withdrew the letter and asked the defendants to ignore the entire substance of it. At the same time, under separate letter, the public representative apologised to the plaintiff. The plaintiff assumed the letter would be forthwith removed from the file.

9 The decision of the defendants in his application at the time was to refuse him permission. He had been given planning permission by the local planning authority for the construction of a house. The plaintiff and his wife, at the first opportunity, attended at the offices of the defendant to inspect the file. To their dismay, they found the letter still remained thereon, although together with a document stamped heavily in red, 'WITHDRAWN', around which were staple marks and together with an envelope. The letter was not sealed, was readily available for inspection and according to the plaintiff was, in fact, highlighted by the document with 'WITHDRAWN' written on it.

10 The plaintiff went to see the Secretary of An Bord Pleanála, Mr. Collins, and met with him and with a Mr. Carlton. He asked the Board to remove the letter. Mr. Collins said it would take a High Court order. The plaintiff subsequently wrote on a number of occasions to the defendants, asking for the removal of the letter. His letters remained unanswered. He telephoned on numerous occasions; according to his wife, she was sure that he was making a pest of himself and that the defendant was simply ignoring him. Finally, he issued these proceedings in June 2002. In their defence, the defendants essentially argued that they are bound by Regulation 72 (a) of the Local Government Planning and Development Regulations 1994, as amended, which require them to keep available for inspection by members of the public, "the documents relating to an appeal". They claim either absolute or qualified privilege in respect of their maintaining this letter on their publicly accessible files. It is admitted that they have known, since 22 ^nd December, 1999, when Mr. Hanafin, solicitor, wrote, on behalf of the public representative, that this letter contained matters that were entirely false.

11 I will take the essential issues as they have presented them to me, one by one. Firstly, there has clearly been publication by reason of the maintenance of the letter on this publicly accessible file. The evidence is that at least three people...