Michael Hoey v Waterways Ireland

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr Justice Peter Charleton
• Judgment Date: 28 May 2021
• Neutral Citation: [2021] IESC 34
• Docket Number: Supreme Court appeal number: S:LE:IE:2012:000227

Between

Michael Hoey

Plaintiff

and

Waterways Ireland

Defendant

[2021] IESC 34

O'Donnell J

Dunne J

Charleton J

Supreme Court appeal number: S:LE:IE:2012:000227

High Court Record Number: 2011 No. 15095 P

An Chúirt Uachtarach

The Supreme Court

Judgment of Mr Justice Peter Charleton delivered on Friday 28 May 2021

1 The plaintiff Michael Hoey claims a wide range of both prohibitory and mandatory injunctive relief against the defendant, Waterways Ireland, arising out of the removal and storage of a canal barge. In the past, the plaintiff ran a business called Canalways Ireland which provided tours of Ireland's canals and linked rivers, including the Barrow navigation. Waterways Ireland has statutory responsibility for the management, maintenance, development and restoration of inland navigable waterways, principally for recreational purposes. This all began when Waterways Ireland removed barge 43M, belonging to the plaintiff, ostensibly on the basis that it had sunk and was obstructing a canal. Did it sink? Like everything in these proceedings, even a simple question like that is overlain with inventive legal constructions which, whether this is the purpose or not, divert the channel of fact away from what matters and into ultimately unnavigable side streams. Included in the pleadings of the plaintiff are assertions as to rights of navigation, riparian rights, statutory duties as to the maintenance of watercourses and aspects of foreign law on boats, barges, depths of navigation, rivers and canals. Waterways Ireland are clear that 43M had sunk and that they recovered it from the canal bed, where, by obstruction, it had halved the navigation width. Asked during the hearing as to whether the barge had sunk, the plaintiff, representing himself on this appeal, replied: “The barge couldn't sink because there is nowhere for it to sink. It was full of water.”

Course of proceedings

2 In the High Court, Murphy J, judgment of 27 April 2012, rejected the plaintiff's claim for injunctive relief. The plaintiff then lodged an appeal to this Court but, as this coincided with the establishment of the Court of Appeal, the Chief Justice issued a general notice, including these parties, under Article 64.3.1 of the Constitution that this appeal would now be heard by the Court of Appeal. Some years later, Waterways Ireland applied for an order pursuant to Article 64.3.3 that would have the effect of cancelling the direction made by the Chief Justice. That was granted. Therefore, the appeal has come before this Court. That happened in 2018 but neither party has sought to bring the matter on before now.

3 A comment is appropriate as to this inaction. As all of the authorities make clear, an application for an interlocutory injunction is a plea to the courts holding equitable jurisdiction that justice should respond by the making of an order compelling a defendant to stop doing something, a prohibitory injunction, or should do something, a mandatory injunction, in the face of what is claimed to be an infringement of the plaintiff's rights that is so serious that such action is needed, even prior to a full trial, and where a judge will have only a limited knowledge of the facts, usually deposed to on affidavit, and in circumstances where a full review of the law may be difficult. For reasons set out below, every such order carries consequences for the parties and, mindful of that, the granting of an interlocutory injunction is a serious step, one potentially fraught with the danger of injustice, for a court to make. It may happen, for reasons related to the overall justice of the position in which the parties find themselves at interlocutory stage, or related to the weakness of the plaintiff's argument as to law, or where damages rather than a court order of compulsion emerge as adequate to meet the case, or where the balance of convenience does not favour such an order, that an application for an interlocutory injunction is refused. What the course of this case exemplifies, and what is in the nature of a plaintiff having applied for an injunction prior to trial, is that a plaintiff has asserted: this is urgent, this is an infringement of rights where unless a plaintiff responds speedily, serious harm will be done. That is what an interlocutory injunction is about. Yet, the case languished for nine years. There is an obligation on a plaintiff, having made such an assertion, through applying for an interlocutory injunction, to consistently pursue the path of urgency by seeking to bring forward the full trial. Consistent with the principle that delay can equate to acquiescence, failure to follow through on promptness may have consequences at the full trial. More importantly, having sought the urgent aid of the courts through an interlocutory application, a plaintiff is required to consistently seek the disposal of the case through application to preparation and in seeking an early hearing. The Rules of the Superior Courts enable defendants who are faced with a reluctant plaintiff to set a matter down for trial. Where State parties are involved, the especial duty of cooperation with the courts should prompt defendants in the face of a recalcitrant plaintiff to use the procedures of the court to have the full trial of a failed interlocutory injunction disposed of.

Core facts

4 The plaintiff claims illegality in the removal by Waterways Ireland of barge 43M, which happened on 11 October 2011. The course of proper attention for the High Court, and this Court on appeal, was and remains on a narrow range of issues and not on the very wide scatter of assertions that characterise the pleadings in this case. The key issues are: whether the barge had sunk; had the plaintiff previously been asked to remove it prior to Waterways Ireland removing it; was the barge obstructing the narrow canal where it was lying on the canal bed; did Waterways Ireland have the statutory power to take the barge away and to dispose of it or to store it pending the resolution of these proceedings? In contrast to focusing on these points, the plaintiff asserted before the High Court a range of issues related, not to the barge but, to the general management of waterways. Hence, he claimed that there were ten abstractions of water from the Barrow Navigation by Kildare Woodchip Limited, not a party to the proceedings, which allegedly interfered with the draft of the waterway. Further, it is pleaded that in November 2001, Kildare County Council made a proposal to take surface water from the Barrow for domestic and industrial purposes. Also asserted is that Waterways Ireland propose to sell the Barrow navigation. To whom, when or for what is not detailed. What purported to be a statutory Interference Notice was issued by the plaintiff, in respect of both the surface water and groundwater from the catchment of the Barrow navigation. The plaintiff, however, is not one of the statutory bodies entitled to issue such a notice. Instead, he is a private person without authority to issue any such notice. The plaintiff, nonetheless, claims to have had navigation authority status under s 21 of the Water Supply Act 1942. S 21(1) of the Act gives definition whereupon an Interference Notice may be issued on coming within the legislative mandate, which otherwise does exist, being a statutory invention, the expression “navigation authority” meaning: “in relation to any navigable water, the person entitled to navigate thereon or to receive tolls or dues in respect of navigation thereon.” The plaintiff as a private operator, does not receive tolls. Even supposing to the plaintiff status to issue such a notice, this case remains about the seizure of the barge. Consequently, this assertion is part of a range of assertions that have nothing to do with the case.

5 Pending a full trial, by motion the plaintiff sought interlocutory prohibitive and interlocutory mandatory injunctions before the High Court. In the pleadings and affidavits is the assertion that Waterways Ireland has an obligation to maintain water depth on the Barrow navigation at 1.2 metres. This can have nothing to do with the sunken barge 43M. Waterways Ireland denied that the plaintiff held navigation status in the High Court. In a finding of fact made by the High Court on the analysis of the interlocutory papers, there was an absence of proof of a valid permit in respect of barge 43M for the three years prior to the decision. Since the removal of barge 43M off the canal bed, the barge has been stored for nearly 10 years by Waterways Ireland at a cost of about €3,000 per annum. Furthermore, barge 43M is, on the evidence on affidavit, missing support hoops, leaks badly, is decayed, is not capable of being floated and hence is not asserted to be worth anything close to what has been spent on storage. Furthermore, it is a standard canal barge and nothing at all suggests that it may have a unique or special character whereby, in equity, it might attract the range of protections which enables courts of equity to apply special protection to unique items, or whereby real property may be the subject of specific performance; since each piece of land has traditionally been regarded as possessing an individual character. This consideration is central when considering the test of adequacy of damages as an alternative remedy to the injunctions sought.

The High Court

6 The reliefs claimed by the plaintiff are five in number. On the face of the motion seeking interlocutory orders pending a full trial, these are both prohibitory and mandatory in nature:

1. An injunction restraining the Defendant whether by itself or by its servants or agents from selling or disposing of my Barge called 43M

2. An injunction to the Defendant to maintain the Grand Canal

3. An injunction to the Defendant to maintain the Barrow Navigation

4. An injunction restraining the Defendant from selling or...