Mungovan v Clare County Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 11 May 2018
• Neutral Citation: [2018] IEHC 267
• Docket Number: [2011 No. 9930 P.]
• Court: High Court
• Date: 11 May 2018

[2018] IEHC 267

THE HIGH COURT

Costello J.

[2011 No. 9930 P.]

BETWEEN

JOHN JAMES MUNGOVAN

PLAINTIFF

AND

CLARE COUNTY COUNCIL

DEFENDANT

Practice & Procedures – Dismissal of claim – Malicious falsehood – Inherent jurisdiction – Damages

Facts: The defendant sought an order for resuming the modular trial of the plaintiff's certain issues as ordered by consent. The defendant also sought an order for the dismissal of the remaining issues pertaining to the plaintiff's claim. The issues between the parties pertained to the refusal of the defendant to include the plaintiff's name on the Register of Independent, Suitably Qualified Agents/Consultants for Waste Water Treatment.

Ms. Justice Costello dismissed the plaintiff's claim for the reliefs sought in the relevant paras. The Court, however, held that the modular trial of certain issues would take place as ordered by consent, which was subsequently affirmed by the Court of Appeal. The Court noted that the plaintiff's claim for damages for malicious falsehood could not succeed following the judgment of the Court of Appeal, which prevented the plaintiff from challenging the lawfulness of the maintenance and operation of the Register.

JUDGMENT of Ms. Justice Costello delivered on 11th day of May, 2018

Introduction

1 By notice of motion issued on the 16th November, 2015 the defendant sought orders dismissing or striking out the plaintiff's claim on the basis that certain claims were not sustainable in law and are bound to fail following a decision of the High Court on the 17th August, 2015 and in relation to other claims pursuant to the inherent jurisdiction of the court on the basis that the claims as pleaded are bound to fail following the judgment of the High Court. The decision of the High Court, which was affirmed on appeal, related to certain matters which had been ordered by consent to be disposed of by way of a modular hearing of the trial. The defendant sought an order resuming the modular trial by directing a modular hearing of the remaining claims of the plaintiff and an order directing a hearing of the issue whether the remaining claims are sustainable in law and, if found not to be sustainable, an order dismissing the plaintiff's remaining claims.

The facts

2 The facts relevant to this case have been fully set out in the judgment of Peart J. in the Court of Appeal decision of the 13th December, 2017 in this case from paras. 6 – 20 of the judgment. For the purposes of this judgment I shall synopsise further the facts as set out in that judgment.

3 The defendant is the planning authority for the County of Clare. From November 2004 until 7th March, 2013 the defendant established and maintained a 'Register of Independent Suitably Qualified Agents/Consultants for Waste Water Treatment' ('the Register') in conjunction with a requirement for applications to the defendant on or after 15th November, 2004 for planning permission for development in its functional area involving the proposed use of a septic tank, or other on site treatment system. All applications in writing were to be accompanied by site suitability assessment tests specified in Appendix A of the Environmental Protection Agency (2000) Manual (or any updated document). The assessment and tests were required to be carried out only by persons who were on the Register, who were required to have professional indemnity insurance.

4 The plaintiff is an environmental engineering consultant with a number of professional qualifications including an honours degree in environmental engineering (NUIG) specialising in waste water treatment. On the 22nd August, 2005 the plaintiff wrote to the defendant requesting that his name be included on the Register. Ultimately, on the 7th March, 2006 he was informed that he could not be placed on the Register but was advised that the panel was a rolling panel and that he could, if he felt it appropriate, submit a further application for inclusion in the future. On the 26th November, 2008 the plaintiff again requested that his name be added to the panel and ultimately on the 16th March, 2010 he was again informed that on the basis of the information available to the defendant he had not been placed on the recommended panel of agents to carry out site assessments. His application was reviewed again in the light of additional reports received from the plaintiff and on the 28th May, 2010 once more the plaintiff was not recommended for inclusion on the panel. Over the next year the parties endeavoured to resolve the issues between the plaintiff and the defendant regarding the suitability of the plaintiff for inclusion on the Register. As of the 11th April, 2011 the defendant's solicitors set out a number of serious deficiencies and concerns which the defendant had regarding the plaintiff's site report and noted that it was the defendant's recommendation that the plaintiff should not be included on the Register of Independent Suitably Qualified Agents/Consultants for Waste Water Treatment. On the 4th November, 2011 the plaintiff commenced these proceedings.

5 At paras. 17 and 18 of the Statement of Claim he sought the following reliefs:

'(a) a Declaration that the purported Register of Independent, Suitably Qualified Agents/Consultants for Waste Water Treatment lately commenced and operated by the Defendant is ultra vires the Defendant and otherwise unlawful.

(b) a Declaration that the purported Register of Independent, Suitably Qualified Agents/Consultants for Waste Water Treatment as operated by the Defendant, its servants or agents is without a legal or statutory basis.

(c) if necessary a Declaration that the continued operation of said Register of Independent, Suitably Qualified Agents/Consultants of Waste Water Treatment by the Defendant is ultra vires, void and of no effect.

(d) if necessary a Declaration that the actual operation of any purported Register of Independent, Suitably Qualified Agents/Consultants for Waste Water Treatment by the Defendant, its servants or agents constitutes an unjust attack on the property rights of the Plaintiff contrary to the provisions of Article 40.3 and/or Article 43 of the Constitution of Ireland.

(e) such Interim or Interlocutory reliefs as may be required.

18 (a) damages for all financial loss and damage caused or occasioned to the Plaintiff Consultant arising on his exclusion from said purported Register of Independent, Suitably Qualified Agents/Consultants for Waste Water Treatment unlawfully operated and wrongfully executed by the Defendant, its servants or agents.

(b) damages for malicious falsehood by (sic) s.42 of the Defamation Act, 2009.

(c)interest pursuant to the provisions of the Courts Act, 1981.'

6 At para. 6 of the Statement of Claim the plaintiff set out his case in relation to malicious falsehood against the defendant. It provides as follows:-

'The Economic Development and Planning Department of the Defendant then issued a Circular in 2010 containing in tabular form the Register being a panel of persons deemed suitable by the Defendant for the conduct of tests carried out in accordance with Appendix A of the Environmental Protection Agency (2000 manual or any updated document), including the following words:

"This register has been made available for the benefit of applicants and as part of the Council's efforts to increase awareness and promote best practice in waste water treatment. All applications for single houses (except applications for approval and permissions consequent) (sic) lodged on or after 15th November, 2004 (or requiring further information after this date) must include tests carried out in accordance with Appendix A of the EPA (2000) manual (or any updated documents). Only persons on the above register may be used for this purpose.

All register members have been advised by the Council to have current professional indemnity insurance. Applicants are advised to check the status of insurance before engaging a member of the register. The register is of a rolling nature and it is the applicant's own responsibility to ensure that they have the most up to date listing.

The Council accepts no responsibility for any disputes in relation to fees, service or other issues. The members of the register have been assessed only in terms of their technical competence to carry out site characteristics assessments based on their qualifications, experience and an...