Inland Fisheries Ireland v O'Baoill
| Jurisdiction | Ireland |
| Judge | Ms. Justice Pilkington |
| Judgment Date | 12 December 2019 |
| Neutral Citation | [2019] IEHC 943 |
| Docket Number | [Record No. 2009/5228 P.] |
| Court | High Court |
| Date | 12 December 2019 |
AND
[2019] IEHC 943
[Record No. 2009/5228 P.]
THE HIGH COURT
Mode of trial – Directions – Notice of motion – Plaintiff seeking an order giving directions as to the mode of trial of the proceedings – Whether new matters raised sufficient queries or issues such as to direct a second/final modular hearing
Facts: The plaintiff, Inland Fisheries Ireland, within the notice of motion, sought an order, pursuant to the inherent jurisdiction of the High Court, giving directions as to the mode of trial of the proceedings as follows: (1) (a) an order directing that the entitlement of the plaintiff to reliefs claimed at paras. 1, 3, 4 and 5 of the general endorsement of claim and that the costs of the proceedings could be heard on affidavit only; (1) (b) insofar as para. 1 of the general endorsement of claim was concerned, an order that the map referred to therein be the map exhibited at “PMCM1” to the affidavit of Mr McMullin, sworn on the 30th day of January, 2018 (insofar as this relief was sought there was agreement amongst the parties that this order could be made); (1) (c) an order directing the entitlement of the plaintiff to an order dismissing the counterclaim of the defendants, Mr O’Baoill and Messrs Boyle, in limine be heard on affidavit only (insofar as this relief was sought there was also agreement amongst the parties that this order could be made); (1) (d) an order treating the hearing of this application as the trial of the proceedings and in particular as to the trial of the proceedings for the purposes of determining the plaintiff’s entitlements to the relief sought at para. 1 (a), 1 (b) and 1 (c); (2) if necessary, an order giving appropriate directions for an exchange of affidavits to facilitate the mode of trial and hearing sought by the notice of motion; (3) costs.
Held by Pilkington J that, having adopted the criteria of Clarke J ([2015] IESC 45) as to the matters that must be considered prior to any application to the trial judge, she could consider the plaintiff’s application as a prospective one. In her view, she could not discern any new matters that raise sufficient queries or issues such as to direct a second/final modular hearing of this matter. She was also conscious of the time that had already been expended in this matter. Her view on the documentation adduced mirrored that of Laffoy J ([2012] IEHC 550). The new evidence to be advanced by the defendants did not in her view progress matters.
Pilkington J held that she would make the following orders in respect of the plaintiff’s notice of motion: (a) on consent orders in terms of para. 1 (b) of the notice of motion and dismissing the defendants’ counterclaim as set out within para. 1 (c) and pursuant to the order of Laffoy J; (b) in respect of 1 (d) an order in accordance with its terms, only in so far as para. 1 (a) was concerned, noting the matters set out at (a) had already been dealt with and accordingly no further orders were required in respect of paras. 1 (b) and (c); (c) in respect of para. 1 (a) of the notice of motion an order in terms of that paragraph save in respect of the issue of costs.
Plaintiff’s notice of motion reliefs accepted substantially as per previous judgments.
Within the notice of motion, the plaintiff seeks an order, pursuant to the inherent jurisdiction of the court, giving directions as to the mode of trial of the within proceedings as follows:-
(a) An order directing that the entitlement of the plaintiff to reliefs claimed at paras. 1, 3, 4 and 5 of the general endorsement of claim and that the costs of the proceedings can be heard on affidavit only;
(b) Insofar as paragraph 1 of the general endorsement of claim is concerned, an order that the map referred to therein be the map exhibited at “PMCM1” to the affidavit of Patrick McMullin, sworn on the 30th day of January, 2018 - insofar as this relief is sought there is agreement amongst the parties that this order can be made;
(c) An order directing the entitlement of the plaintiff to an order dismissing the defendant's counterclaim in limine be heard on affidavit only - insofar as this relief is sought there is also agreement amongst the parties that that order can be made;
(d) An order treating the hearing of this application as the trial of the within proceedings and in particular as to the trial of the proceedings for the purposes of determining the plaintiff's entitlements to the relief sought at para. 1 (a), 1 (b) and 1 (c).
2. If necessary, an Order giving appropriate directions for an exchange of affidavits to facilitate the mode of trial and hearing sought by this Notice of Motion.
3. Costs.
In such circumstances it is therefore necessary to set out the relevant reliefs sought in the plaintiff's general endorsement of claim which issued on 8th June, 2009. It is as follows:-
“1. A declaration that the defendants together with all persons acting in concert with them do not have the right to fish the Gweebarra Salmon Fishery, County Donegal (“the fishery”) in the waters coloured yellow on the map exhibited at “GMcC1” to the affidavit of Gerry McCafferty sworn on 8th June, 2009 without a permit issued by or with the authority of the plaintiff.
2. [This relief is not sought within the notice of motion]
3. An injunction restraining the defendants together with all persons acting in concert with them and all persons having notice of the making of the said order from entering upon and/or fishing the fishery without an individual permit issued by or with the authority of the plaintiff to such persons.
4. An injunction restraining the defendants together with all persons acting in concert with them and all persons having notice of the making of the said order from howsoever communicating to persons holding permits issued by or with the authority of the plaintiffs who are entering on/or fishing the fishery that they are not entitled to fish the fishery.
5. An injunction restraining the defendants together with all persons acting in concert with them and all persons having notice of the making of the said order from inciting persons wishing to fish the fishery to do so without a permit issued by and with the authority of the plaintiff and from representing to such persons that they would be entitled to do so by joining the Fintown or Rosses Anglers (Clubs)”.
An interlocutory order was made by Charleton J. on 20th July, 2009 bearing the title of the plaintiff's predecessor (The Northern Regional Fisheries Board), the court noting that the plaintiff's undertaking to erect a notice in the relevant premises indicating the parts of the river not under the control and accessible without a fishing permit that within one week of this date:-
“IT IS ORDERED that the defendants together with all persons acting in concert with them and all persons having notice of the making in this order (i) be restrained pending the trial of the Action from howsoever communicating to persons holding permits issued by or with the authority of the Plaintiff who are entering on and/or fishing the fishery that they are not entitled to fish the fishery (ii) be restrained pending the trial of the Action from inciting persons wishing to fish the fishery to do so without a permit issued by or with the authority of the plaintiff and from representing to such persons that they would entitled to do so by joining the Fintown or Rosses Anglers Clubs”.
The costs of the motion and order were directed to be costs in the cause.
Thereafter a statement of claim was delivered on the 11th May, 2010 with the defence and counterclaim delivered on the 13th December, 2010.
Pursuant to a motion by the plaintiff for directions seeking a modular trial of the proceedings and directions as to the first issue to be tried. On 21st November, 2011 Murphy J. directed a modular trial and the first issue to be tried. The same order also amended the title of the proceedings to now read that the plaintiff sues in the name of “Inland Fisheries Ireland” (it had formally been Northern Regional Fisheries Board). The court directed that the first issue within the modular trial to be as follows:-
(a) Does the plaintiff have the right to manage, control and regulate access to the lands within what the plaintiff refers to as the Gweebarra Fishery marked in yellow (IFI owned fishing) and green (Kevin McDonnell Fishing) on the map exhibited at “PMcM1” to the affidavit of Patrick McMullin sworn on the 13th day of September, 2011.
(b) Is the plaintiff entitled to the reliefs sought by it as against the defendants insofar as the lands at (a) above are concerned.
(c) Are the defendants entitled to the reliefs set out in their counterclaim insofar as the said lands at (a) above are concerned.
The reply and defence to counterclaim was delivered on 16th January, 2012.
The judgment in respect of the first module was delivered by Laffoy J. on 10th December, 2012, with the order on foot of that judgment dated 7th February, 2013 - [2012] IEHC 550.
The notice of appeal issued on the 14th day of March, 2013, a notice of motion seeking to adduce new evidence pursuant to RSC O. 58, r. 8. before the Supreme Court issued on the 8th October, 2014 and the order and judgment of the Supreme Court (Clarke J.) is dated 15th May, 2015 - [2015] IESC 45.
The first and, as I understand it, only module which has been heard before the court to date, was that heard before Laffoy J. and it ran for six days.
Following the decision of the Supreme Court to refuse the Defendants' application to admit new evidence, the defendants then withdrew their substantive appeal against the judgment of Laffoy J. Accordingly, the judgment of the Supreme Court relates solely to the issue or...
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Inland Fisheries Ireland v Ó'Baoill
...before the Supreme Court. 3 . The matter came on for hearing before Pilkington J. and in her judgment dated the 12 th December, 2019 [2019] IEHC 943. Having made certain orders on consent pertaining to the map to be annexed to the orders as made she granted a declaration that the appellants......