Kenny v Trinity College Dublin

JudgeMr. Justice Clarke
Judgment Date28 January 2009
Neutral Citation[2009] IEHC 35
CourtHigh Court
Date28 January 2009

[2009] IEHC 35


No. 1319 P/2008
Kenny v Provost Fellows and Scholars of the University of Dublin, Trinity College





RIORDAN v AN TAOISEACH & ORS (NO 5) 2001 4 IR 463 2001/21/5691


RSC O.84





Isaac Wunder order

Leave to maintain proceedings - Whether case bound to fail - Necessity for precision in pleading - Proceedings seeking to prevent enforcement of cost orders - Assertion that cost orders invalidated because original planning permission invalid - Procedure for questioning validity of planning permission - Judicial review - Interaction between community law and Irish law - Obligation to take measures to remedy failure to carry out environmental impact assessment - Procedural autonomy - Procedural requirement that judicial review appropriate method to challenge permission - Extension of time - Whether good and sufficient reason for extension - Whether circumstances causing delay outside control of applicant - Principle of effectiveness - Onus on applicant - Finality of judgments - Abuse of process - Costs of failed set aside applications - Failure of challenge based on fraud - Duplication of proceedings - Pending complaint to European Commission - Right to enforce cost orders - Whether legitimate basis for suggesting good legal grounds for postponing enforcement - Riordan v Ireland (No 5) [2001] 4 IR 463, Commission v Ireland (case C-215/06) (Unrep, ECJ, 3/7/2008) and Henderson v Henderson (1843) 3 Hare 100 considered - Planning and Development Act 2000 (No 30), s 50 - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Permission to bring proceedings refused (2008/1319P - Clarke J - 28/01/2009) [2009] IEHC 35

Kenny v Trinity College

1. Introduction

1.1 The issue which I now have to decide arises in the context of long standing litigation between the plaintiff ("Mr. Kenny") and the defendants ("Trinity College") arising out of challenges made by Mr. Kenny to a planning permission obtained by Trinity College in respect of a significant development at Dartry in Dublin. This judgment is, in effect, a follow on from a judgment which I delivered in this matter on the 17 th October, 2008 ("the October judgment"). The application which was then (and is now) before the court, is one in which Mr. Kenny seeks an order which would permit him to maintain these proceedings against Trinity College. There is in place a court order preventing Mr. Kenny from bringing such proceedings without the court's leave, and, therefore, in the absence of leave Mr. Kenny cannot maintain these proceedings.


1.2 In the October judgment I set out the relevant principles by reference to which such an application should be considered. I also indicated that I was not, then, persuaded that Mr. Kenny had established that he had a case which was not bound to fail. However, by virtue of the fact that the case which Mr. Kenny said he wished to argue had evolved to a considerable extent in the course of argument, I indicated that I would allow Mr. Kenny an opportunity to file a draft revised plenary summons, together with a draft statement of claim (see para. 6.1 of the October judgment). I also identified a number of difficulties with the claim which Mr. Kenny appeared to wish to bring. Those difficulties were set out, in particular, at paras. 5.6, 5.11, 5.12 and 5.14 of the October judgment. Having drawn Mr. Kenny's attention to those difficulties I indicated (at para. 6.2) that I would expect Mr. Kenny to make clear in the draft statement of claim how it was to be contended that he could obtain whatever reliefs might be claimed, notwithstanding those difficulties. In taking such a course I was following the practice adopted by Ó Caoimh J. in Riordan v. Ireland (No.5) [2001] 4 I.R. 463. I now turn to what has happened since the October judgment.


1.3 Mr. Kenny initially filed detailed written submissions which set out his position on the points to which I had drawn attention in the October judgment. Mr. Kenny did not, initially, file a draft statement of claim. At a subsequent procedural hearing I indicated that I would require Mr. Kenny to file a draft statement of claim, for if he were to be given leave to bring these proceedings (or any version of them) it was, in my view, important that there be some precision about the claim which was permitted to be pursued. It would, in my view, be wholly wrong for a court to permit imprecise proceedings to go ahead in circumstances where the person bringing those proceedings is the subject of a so called Isaac Wunder order. Such a course of action would, potentially, defeat the purpose of the Isaac Wunder order. Subsequently, in any event, Mr. Kenny filed a draft statement of claim


1.4 Thereafter, a further hearing ensued. This judgment is directed to the issues debated at that hearing. It is also of some relevance to note that Mr. Kenny has made a complaint to the European Commission concerning the planning process which is at the heart of this case.

2. The Case now Made

2.1 It is unnecessary to repeat the detail of the matters set out in the October judgement. The focus of the relief then sought (which continues to be the focus of the draft statement of claim), involves orders designed to prevent Trinity College from enforcing a series of cost orders which it already has in its favour against Mr. Kenny. However, it is clear from the draft statement of claim that the basis put forward by Mr. Kenny for suggesting that the relevant costs orders should not be enforced, is his assertion that the original planning permission given to Trinity College was invalid. His original challenge to that planning permission was dismissed by McKechnie J., who made an order for costs against Mr. Kenny on the 2 nd March, 2001. The other costs orders sought to be discharged relate to various failed attempts to re-open those proceedings. While the central focus of these proceedings concerns the costs orders to which I have referred there are some additional matters raised in the draft statement of claim. I propose to deal with those additional claims in section 5 of this judgment.


2.2 In the context of the principal claim concerning costs orders, a number of points need to be made. At para. 7 of the draft statement of claim Mr. Kenny asserts that Trinity College "secured its planning permission from An Bord Pleanála…in breach of those directives in a similar manner as was found by the ECJ to have been secured by the developer of the Derrybrien Project, and the plaintiff further claims that this planning permission which was granted to Trinity breached the EU planning requirements for such a development, for which the relevant authorities nonetheless purported to grant a valid planning permission".


2.3 On that basis it is suggested that all of the costs orders which followed are invalidated by the fact that they arose from proceedings in which Mr. Kenny was challenging what he asserts to be an invalid planning permission. It follows, in turn, that in the event that the planning permission in this case is valid, Mr. Kenny could have no case on any basis for seeking to overturn the various costs orders with which his proceedings are concerned. These new proceedings amount, therefore, to, at a minimum, an indirect challenge to the planning permission given by An Bord Pleanála to Trinity College in respect of the development concerned. Section 50 of the Planning and Development Act 2000, ("the 2000 Act") requires that a person may not "question the validity" of a variety of decisions of planning authorities (greatly expanded by amendments introduced by the Planning and Development Act 2006), other than by means of a judicial review brought under O. 84 of the Rules of the Superior Courts ("RSC"). Amongst the types of decision covered by the section are planning permissions.


2.4 It seems to me to be clear from Mr. Kenny's draft statement of claim that he seeks to question the validity of Trinity College's planning permission. While he does not formally seek an order declaring it to be invalid, it is only if he is able to persuade a court that it is, in fact, invalid that he could hope to succeed. It seems to me that Mr. Kenny's proceedings are, therefore, squarely caught by s. 50 of the 2000 Act in that he is seeking to question the validity of Trinity College's original planning permission.


2.5 For that reason alone it would not be permissible to allow Mr. Kenny to question the validity of Trinity College's planning permission in these proceedings, for these proceedings are not judicial review proceedings brought under O. 84 of the RSC.


2.6 There are, however, further reasons for coming to the same conclusion. One of the issues which I noted in the October...

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