Morris v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 27 July 2022
• Neutral Citation: [2022] IEHC 472
• Court: High Court
• Docket Number: [Record No. 2020/8583P]

Between

Christian Morris

Plaintiff

and

Ireland, The Attorney General of Ireland, The Minister for Justice and Equality, The Minister for Housing, Local Government and Heritage, An Bord Pleanála, Fingal County Council, Crekav Trading GP Limited and Atlas GP Limited

Defendants

[2022] IEHC 472

[Record No. 2020/8583P]

THE HIGH COURT

Abuse of process – Bound to fail – Frivolous and vexatious proceedings – Defendants seeking to have the plaintiff’s action against them struck out – Whether the proceedings against the defendants were bound to fail, were frivolous and vexatious and were an abuse of the processes of the court

Facts: The applicant, Mr Morris, by a plenary summons issued on 22nd December, 2020, instituted proceedings in which he sought, inter alia, a declaration that the Planning and Development (Housing) and Residential Tenancies Act 2016 is repugnant to Bunreacht na hÉireann. The plaintiff also sought declarations that both his rights and the rights of the sixth defendant, Fingal County Council, had been infringed by the provisions of the 2016 Act. He sought a declaration that the fifth defendant, An Bord Pleanála, had acted improperly, together with orders quashing the decisions of the fifth defendant made in March and April 2020, which were the subject matter of previous judicial review proceedings. The plaintiff also sought an order remitting two planning applications, which had been the subject matter of the two decisions in March and April 2020, for a rehearing “in such a way as to fulfil the plaintiff’s right as claimed in the herein proceedings, to an appeal on merits”. The plaintiff also sought an injunction to stay the determination of any applications which might have been made, or which might be made pursuant to the 2016 Act, together with orders against the seventh and eighth defendants, Crekav Trading GP Ltd and Atlas GP Ltd, to stay continuation, or commencement of certain building works pursuant to either of the planning permissions that issued by the fifth defendant. Motions were issued on behalf of the first, second and fourth defendants, Ireland, the Attorney General and the Minister for Housing, Local Government and Heritage, and the fifth, seventh and eighth defendants seeking to have the plaintiff’s action against them struck out pursuant to O. 19, r. 28 of the Rules of the Superior Courts, or pursuant to the inherent jurisdiction of the High Court, on the basis that the proceedings against the defendants were bound to fail, were frivolous and vexatious and were an abuse of the processes of the court.

Held by Barr J that, having regard to the provisions of s. 50 of the Planning and Development Act 2000 (as amended), the plaintiff’s action was not maintainable. Furthermore, the court was satisfied that the action constituted an impermissible collateral attack on the permissions. For those reasons, the court was satisfied that the proceedings were frivolous and vexatious, within the legal meaning of those terms and accordingly the court had jurisdiction both under O. 19, r. 28 and under its inherent jurisdiction to strike out the proceedings. The court held that the plaintiff was bound by the rule in Henderson v Henderson [1843] No. 3 Hare 100, like all other litigants; he ought to have raised his constitutional challenge to the 2016 Act in his previous judicial review proceedings challenging the two decisions taken under that Act and as he did not do so, he could not revive that ground of challenge in these proceedings. The court accepted that, as the plaintiff could not challenge the impugned decisions due to these proceedings being a collateral attack on a decision that had already been found to be valid in s. 50 judicial review proceedings, then if one removed the impugned decisions from the equation, the plaintiff lacked locus standi to challenge the constitutional validity of the 2016 Act.

Barr J held that the plaintiff’s action against the first, second, fourth, fifth, seventh and eighth defendants was bound to fail, was frivolous and vexatious in the legal sense and constituted an abuse of the process of the court. The court directed that the proceedings be struck out against each of the moving party defendants.

Proceedings struck out.

JUDGMENT of Mr. Justice Barr delivered electronically on the 27 ^th day of July, 2022 .

Introduction.

1 . The issues that arise in this case can be briefly stated in the following way: the applicant is a gentleman, who resides in Howth, Co. Dublin. In March and April 2020, the fifth defendant, An Bord Pleanála, granted permission to the seventh and eighth defendants respectively for strategic housing developments on two sites in the Howth area.

2 . The applicant brought two sets of judicial review proceedings challenging those decisions. In one set of proceedings, challenging the decision of March 2020 (hereafter “the Balscadden Road permission”), he was successful; the decision to grant planning permission was quashed. No application has been made by ABP, or the developer, for leave to appeal that decision; so that permission is now extinguished.

3 . The applicant also brought a challenge by way of judicial review against the decision of ABP made in April 2020 (hereafter “the Techrete site permission”). That matter was heard by Hyland J. in October 2020. In a reserved judgment delivered on 22 ^nd October, 2020, she refused the reliefs sought by the applicant. The applicant did not seek leave to appeal that decision.

4 . By a plenary summons issued on 22 ^nd December, 2020, the applicant instituted these proceedings, in which he seeks, inter alia, a declaration that the Planning and Development (Housing) and Residential Tenancies Act 2016 (hereinafter ‘the 2016 Act’) is repugnant to Bunreacht na hÉireann. The plaintiff also sought declarations that both his rights and the rights of the sixth named defendant, Fingal County Council, have been infringed by the provisions of the 2016 Act. He sought a declaration that the fifth named defendant had acted improperly, together with orders quashing the decisions of the fifth defendant made in March and April 2020, which were the subject matter of his previous judicial review proceedings. The plaintiff also sought an order to remit the two planning applications, which had been the subject matter of the two decisions in March and April 2020, for a rehearing “ in such a way as to fulfil the plaintiff's right as claimed in the herein proceedings, to an appeal on merits”. The plaintiff also sought an injunction to stay the determination of any applications which might have been made, or which might be made pursuant to the 2016 Act, together with orders against the seventh and eighth defendants to stay continuation, or commencement of certain building works pursuant to either of the planning permissions that issued by the fifth defendant.

5 . Following the entry of appearances by the defendants, motions were issued on behalf of the first, second, fourth, fifth, seventh and eighth defendants, seeking to have the plaintiff's action against them struck out pursuant to O.19, r.28, or pursuant to the inherent jurisdiction of the court, on the basis that the proceedings against the defendants were bound to fail; that the proceedings were frivolous and vexatious and were an abuse of the processes of the court.

6 . The defendants make those assertions by reference to the following matters: the decision of March 2020 having been struck down by the High Court, it was frivolous and vexatious to seek to impugn that decision again in these proceedings; s.50 of the Planning and Development Act 2000 (as amended) (hereafter “the 2000 Act”) provides an exclusive legal route for challenging certain decisions of the fifth defendant. The decisions, the subject matter of the proceedings herein, come within that section. As such, it was submitted that the plaintiff could only challenge the two decisions by means of judicial review proceedings, which option he had already exercised; it was submitted that the plaintiff could not attempt to effectively challenge those decisions again in these plenary proceedings.

7 . The defendants submitted that the present proceedings were an abuse of the processes of the court because they constituted an impermissible collateral attack on the two decisions of An Bord Pleanála, which had already been the subject of judgments of the High Court in the plaintiff's earlier judicial review proceedings; one of which was quashed and one of which was upheld.

8 . It was submitted that the plaintiff could not raise the issue of the constitutional validity of the 2016 Act in these proceedings due to the rule in Henderson v. Henderson [1843] No. 3 Hare 100; if he wished to raise the constitutional issue, he should have done so in his judicial review proceedings; as he had not done so, it was submitted that he could not do so in the present proceedings.

9 . Finally, it was submitted that if one strips away the challenge to the two decisions; their legal validity having been definitively determined in the two judicial review proceedings brought by the plaintiff, the plaintiff lacked locus standi to mount a challenge to the constitutional validity of the 2016 Act, as he could not demonstrate that any of his interests are now, or are likely to be, adversely affected by the provisions of the 2016 Act. It was submitted that having regard to all of these matters, the plaintiff's proceedings herein were bound to fail and therefore constituted an abuse of the court's processes and should be struck out against the moving party defendants.

10 . In response, the applicant stated that he had always made it clear that he intended to challenge the constitutionality of the 2016 Act, as he considered that in providing that developers could bypass making an application to the planning authority and only had to make one application for planning...