James Clifford and Peter Sweetman v an Bord Pleanála, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 15 October 2021
• Neutral Citation: [2021] IEHC 645
• Court: High Court
• Docket Number: [2021 No. 20 JR]

In the Matter of Section 50B, Section 214 and Section 215 of the Planning and Development Act 2000 as Amended

and

Section 51 of the Roads Act 1993 as Amended

and

Section 10 of the Local Government (No. 2) Act 1960

Between

James Clifford and Peter Sweetman

Applicants

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

Kerry County Council

Notice Party

In the Matter of an Application Pursuant to Section 76 of and the Third Schedule to the Housing Act 1986 as Extended by Section 10 of the Local Government (No. 2) Act 1960 and Substituted by Section 86 of the Housing Act 1966

And in the Matter of the Planning and Developments Acts 2000 to 2019

And in the Matter of Section 50B of the Planning and Development Act 2000

And in the Matter of an Application Pursuant to Section 51 of the Roads Act 19993 (As Amended)

And in the Matter of an Application

Between

Denis O'Connor, Christy McDonnell, Mary O'Neill McDonnell and The Greenway Information Group

Applicants

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

Kerry County Council

Notice Party

[2021] IEHC 645

[2021 No. 20 JR]

[2021 No. 19 JR]

THE HIGH COURT

JUDICIAL REVIEW

Wills and probate – Administration of estate – Costs – Defendant seeking costs – Whether the proceedings or the way in which they were prosecuted could be regarded as “the event” which costs must follow

Facts: The deceased, Mr Sherry, of 3, Laurel, Hazeldene, Anglesea Road, Dublin 4, passed away on 12th December, 2015. He had made and executed his last will on 14th October, 2009. In that will, he appointed the defendant, Mr Murphy, an experienced solicitor who was then a partner in the firm Lyons Kenny of 57 Fitzwilliam Square, Dublin 2, as his executor and trustee under the will. The will stated that, if the defendant were “unwilling or unable” to act as executor and trustee, the firm of Lyons Kenny, or any firm with which Lyons Kenny was amalgamated or into which it was incorporated, was to act as his executor and trustee. After payment of debts and expenses, and some small charitable bequests, the residue of the estate was to be left to the plaintiff, Mr Crowley, who was described in the will as the deceased’s “assistant”. While the plaintiff in his grounding affidavit described himself as a “homemaker”, the defendant in his affidavit of 20th January, 2020 at para. 5 described the plaintiff as the “sole carer of the deceased for many years”, a description with which the plaintiff did not take issue. The grant of probate which issued on 23rd February, 2018 recorded the gross value and the net value of the deceased’s estate as €1,831,420 and €1,819,424 respectively. The plaintiff became dissatisfied with the way in which the defendant was discharging his role as executor, and issued proceedings seeking various orders against the defendant as regards the administration of the deceased’s estate, or in the alternative, an order removing the defendant as the legal personal representative of the estate. Ultimately, after a number of hearings before the High Court, the parties on 4th June, 2021 indicated their acceptance that, subject to some minor administrative matters, the administration of the estate was complete and that the only issue to be decided was that of the costs of the proceedings.

Held by Sanfey J that it did not seem to him that the proceedings were the appropriate means of expediting an administration which, subject to an agreement regarding the transfer of the property which was concluded shortly after the proceedings were initiated, had been largely completed. He did not think, in all the circumstances, that the proceedings or the way in which they were prosecuted could be regarded as “the event” which costs must follow. Neither did he consider that there was sufficient evidence before him to justify disallowing portion of the defendant’s costs. Sanfey J was mindful that para. 7 of the will itself provided that the executor was not to be liable “for any loss not attributable to the [executor’s] own dishonesty or to the wilful commission by the [executors] of any act known to be a breach of trust”. Sanfey J found that there was no suggestion by the plaintiff that the defendant had been in any way dishonest. Sanfey J did not think that the plaintiff had established any breach of trust on the part of the defendant.

Sanfey J held that he could see no reason why the defendant should not be entitled to his costs of the proceedings, whether in the proceedings themselves – which the plaintiff had effectively withdrawn – or as his necessary fees and costs to which he would normally be entitled in the course of the administration. Sanfey J held that the parties should liaise to agree appropriate orders. If this was not possible, he held that each party should make brief written submissions – no more than 500 words – as to the appropriate orders within fourteen days after delivery of this judgment, after which he would make orders without further reference to the parties.

Costs awarded to defendant.

(NO. 2)

JUDGMENT of Humphreys J. delivered on Friday the 15th day of October, 2021

1 In ( [2021] IEHC 459 Clifford v. An Bord Pleanála (No. 1) Unreported, High Court, 12th July, 2021) I dismissed an application for certiorari of development consent for the South Kerry Greenway under s. 51 of the Roads Act 1993.

2 The applicants now seek leave to appeal under s. 50A(7) of the Planning and Development Act 2000.

The form of the question

3 It is true that in ( [2008] IEHC 2 Arklow Holidays Ltd. v. An Bord Pleanála Unreported, High Court, 11th January, 2008), Clarke J. drew distinction between a broad question of principle and the narrow question of its application to the case. But the concept of a broad question of principle is not to be entirely conflated with writing an essay. It ideally would involve an actual question – is the legal situation X? Another form (maybe a better form) is – is the legal situation X or alternatively is it Y?

4 Why is this better than an open-ended non-leading question like “what is the legal situation in these circumstances”? There are a number of reasons.

5 Firstly, its's clear that for a question to be one of exceptional public importance warranting an appeal to the Court of Appeal, the question (either alone or in combination with other questions) normally has to be decisive. That is obscured by an open-ended question. If the question is “is the legal situation X or is it Y”, then that permits the court to consider that the losing party would be the loser under either scenario, thereby generally rendering the appeal on such a point otiose.

6 Also, by defining the scenarios to be discussed, the reality or otherwise of those scenarios comes into precise focus. “What is the legal situation here” is a question we might all think is reasonable and worthy of lengthy debate and discussion “Is the legal situation X?” immediately focuses the mind on X, which may compel us to acknowledge the obvious implausibility or otherwise of X.

7 Ultimately the dynamic encouraged by the open-ended question is for the would-be appellant to say “look at this interesting point of law, don't look at how it actually impacts on the actual case, in the context of the actual evidence and actual pleadings”. Pandering to such an approach may even create a perverse incentive to inaccurately represent the import of the substantive decision in order to make the point of law as interesting and relevant as thought necessary (speaking generally – not about the applicants here). Dangling an interesting point in front of a court to obscure shortcomings in the case may seem good bare-knuckle practical tactics but doesn't do anything for the coherence of the legal system. The caselaw is clear that the point has to actually arise from the judgment and therefore from the pleadings and evidence as they actually stand.

8 Hence as suggested in S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, ( [2016] 11 JIC 1404 Unreported, High Court, 14th November, 2016), at para. 2, it is far better to formulate the question with precision in a manner that indicates how it is determinative of the proceedings, rather than inviting a discursive, roving response from the Court of Appeal.

9 While it is true that some previous certification decisions and indeed by analogy some Supreme Court leave to appeal determinations do involve general questions, and so the need for precision in the question might best be regarded not as an absolute rule (but as against that, the pros and cons of general questions probably aren't fully teased out in such decisions and virtually nothing in law is so fixed that it can't be capable of review and if necessary development), a lack of precision in a question is nonetheless a pertinent factor going to the exercise of the court's jurisdiction to grant leave to appeal. It is also true that the court can reformulate the question proposed by a would-be appellant. But as noted above one of the obvious problems with the absence of a precise question is that it invites the court to stray some distance from the actual issues raised by the case. It also potentially invites the court to decide something which isn't in fact determinative. Hence, precision serves multiple...