Stapleton v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 23 June 2023
• Neutral Citation: [2023] IEHC 344
• Court: High Court
• Docket Number: [2022 No. 157 JR]

Between

Martin Stapleton

Applicant

and

An Bord Pleanála, The Minister for Housing, Local Government and Heritage, Ireland and The Attorney General

Respondents

and

Savona Limited and Dublin City Council

Notice Parties

[2023] IEHC 344

[2022 No. 157 JR]

THE HIGH COURT

JUDICIAL REVIEW

(No. 4)

JUDGMENT of Humphreys J. delivered on the 23rd day of June, 2023

1 . The applicant challenges a decision by the board on 23rd December, 2021 authorising a strategic housing development in Redcourt, Seafield Road, Clontarf, Dublin 3, consisting of 131 build-to-rent apartment units.

2 . Proceedings were commenced on 25th February, 2022.

3 . Amendment of the pleadings was allowed on 28th February, 2022 and 7th March, 2022 and a first amended statement of grounds was filed on 16th March, 2022. Further amendments were allowed on 21st March, 2022 and a second amended statement of grounds was filed on 23rd March, 2022. Leave was granted on the basis of that latter statement on 28th March, 2022.

4 . Following that, an issue blew up about costs protection.

5 . In Stapleton v. An Bord Pleanála (No. 1) [2022] IEHC 372, ( [2022] 6 JIC 2201 Unreported, High Court, 22nd June, 2022) I refused costs protection relief in part and decided in principle to refer a question in that regard to the CJEU.

6 . In Stapleton v. An Bord Pleanála (No. 2) [2022] IEHC 455, ( [2022] 7 JIC 2602 Unreported, High Court, 26th July, 2022) I gave directions regarding the reference.

7 . In Stapleton v. An Bord Pleanála (No. 3) [2022] IEHC 456, ( [2022] 7 JIC 2603 Unreported, High Court, 26th July, 2022) I made the formal order for reference.

8 . Subsequently however the costs issue was agreed and the reference was withdrawn.

9 . Statements of opposition were filed by the board on 18th October, 2022, by the notice party on 1st December, 2022 and by the State on 21st March, 2023 – the first anniversary of the order allowing the latest amended statement of grounds.

10 . The board's opposition papers contained numerous legalistic complaints about the drafting of the statement of grounds, which sparked a kind of arms race between the parties whereby the applicant has responded in an equally, if not more, legalistic manner. That is possibly not an ideal situation.

11 . Following the delivery of papers by all opposing parties, the applicant delivered a notice setting out further particulars of its case, dated 4th April, 2023. That resulted in the issue of a motion by the applicant which was heard on 24th May, 2023 and 12th June, 2023. On the latter date, reliefs 6 to 8 in the applicant's motion were adjourned generally, by consent. I now deal with reliefs 1 to 5, albeit not in that precise order.

Reliefs relating to particulars

12 . Relief 1 claims:

“An Order pursuant to Order 19 Rule 7 of the Rules of the Superior Courts as amended, or otherwise, deeming good the Applicant's Reply to Deemed Notice for Particulars annexed hereto at Schedule 1 Parts 1 and 2 respectively.”

13 . I will assume without deciding that the particulars procedure can apply to judicial review. But even if it does apply, it can only apply subject to fairly close supervision by the court; and in that regard, in many situations it is better in the interests of certainty for any significant clarifications to be effected by amendment rather than by notice giving particulars.

14 . To some extent it is a matter of degree. In many situations it may be acceptable for an applicant to write a letter saying “for the avoidance of doubt, in ground number 1 we wish to clarify that this is intended to make point x specifically (and not point y)”. However the extent of the particularisation here is such that amendment is the preferable way to go. Hence I would refuse to approve the applicant's attempt to serve a notice giving further particulars of his case.

15 . Finally in relation to this relief, I should note that the inventive confection of a “Deemed Notice for Particulars” is just an attempt by the applicant to pass the buck to the opposing parties. There is no such thing as a deemed notice for particulars. If, whether stimulated by complaints from other parties or for any other reason, a party wants to give additional particulars of its case in proceedings, it should just serve notice to that effect if the procedures applicable to the litigation so permit. If they don't so permit, the party should apply to the court to be allowed to do so in the appropriate form, which may be by way of amendment.

16 . Relief 5 claims:

“In the alternative to reliefs 1, 2 and 4 above, an Order pursuant to Order 84 Rule 26 of the Rules of the Superior Courts as amended, declaring that the First Respondent, An Bord Pleanala, and the First Notice Party, Savona Ltd, are not entitled to contest the adequacy of the particularisation of the Statement of Grounds herein, by reason of their and each of their failure to reply in accordance with Order 19 Rule 7 to the Applicant's Reply to Deemed Notices for Particulars, annexed at Schedule 1, Parts 1 and 2 respectively.”

17 . This is totally misconceived. A party in judicial review is perfectly entitled to object to a lack of particularisation of the other side's case without being obliged to first request particulars. That doesn't mean that the party complained against has no come-back – that party can argue that its case is adequately pleaded, or can seek to amend its pleadings. The board objected that there was no such thing as a reply in judicial review pleading, which is quite correct, but an objection to an applicant's pleadings is not an inherently irremediable one. Just because there is no pleading in the form of a “reply” doesn't mean that an applicant is prohibited from taking any steps by way of damage-limitation. Seeking an amendment is one such step.

18 . The board complains that the applicant is “mending his hand” as a result of opposition papers, and that doing so creates a further round of activity and expense. But so be it – there is no rule that you can never mend your hand. A pleading objection is not a “gotcha” point from which there can be no escape. But it does to some extent require the party at the receiving end to either stick or twist – stand on their pleadings and defend them as written, or seek an amendment (even for the avoidance of doubt).

Reliefs relating to amendment of pleadings

19 . Relief 2 claims:

“In the alternative to relief 1 above, an Order pursuant to Order 84 Rule 23 of the Rules of the Superior Courts as amended granting liberty to the Applicant to amend his grounds of application in accordance with the draft Amended Statement of Grounds annexed hereto at Schedule 2.”

20 . I endeavoured to summarise the principles applying to amendments in Habte v. Minister for Justice and Equality [2019] IEHC 47, ( [2019] 2 JIC 0405 Unreported, High Court, 4th February, 2019), the first point being that the jurisdiction to amend is intended to be liberal: Croke v. Waterford Crystal Ltd. [2004] IESC 97, [2005] 2 I.R. 383, [2005] 1 I.L.R.M. 321, [2004] 11 JIC 2605, [2005] 7 JIC 0701, Moorehouse v. Governor of Wheatfield Prison and Others [2015] IESC 21, 2015 WJSC-SC 18608, ( [2015] 3 JIC 0502 Unreported, Supreme Court, 5th March, 2015).

21 . The point made in Croke about the approach to amendments and the need for justice not to be defeated by technicalities has been relied on in numerous recent cases including Reddy v. Hyper Trust Ltd. [2023] IEHC 278 (Mulcahy J.).

22 . The critical issues are arguability, explanation, and lack of irremediable prejudice, all under the umbrella of the interests of justice (see Keegan v. Garda Síochána Ombudsman Commission [2012] IESC 29, [2012] 2 I.R. 580, [2012] 5 JIC 0103, B.W. v. Refugee Appeals Tribunal [2017] IECA 296, [2018] 2 I.L.R.M. 56, [2017] 11 JIC 1501).

23 . Broadly, the amendments are arguable. And they have now been explained, albeit that the explanation is rather ingenuous and defiant – the applicant thinks the amendments are unnecessary but wants to avoid an issue at trial. I can only construe that as meaning that if the amendments are in fact needed, then the explanation for the amendments is the applicant's lawyers' error (as in Keegan) – specifically an erroneous belief in relation to that issue. I think it would be unduly harsh to penalise the applicant for a lack of guile in relation to how the explanation was phrased.

24 . The matter to be explained is the failure to make the point originally within the statutory time period. An applicant is not under any absolute obligation to explain on a day-by-day basis each element of the delay after the expiry of that period, although in effect the lawyers' mistaken view as to the correct approach does explain that here. Indeed, it is clear that delay is not a bar to an amendment, and the power to amend can be exercised during the trial, after judgment is reserved, or at any time up to perfection of the final order ( Wildgust v. Bank of Ireland [2001] 1 I.L.R.M. 24, J.K. (Uganda) v. Minister for Justice and Equality [2011] IEHC 473, [2011] 12 JIC 1305 (Unreported, High Court, Hogan J., 13th December, 2011)). The board majored on the applicant's failure to seek amendments after delivery of its own statement of opposition, but it was perfectly reasonable for the applicant to await all opposition papers before deciding on the next move. The standard directions set out in Practice Direction HC119 make clear that any applicant's replying affidavit only comes after all opposition papers are in, and not on a piecemeal basis. The fact that the State took an entire year from the second amended statement of grounds to deliver opposition papers, even bearing in mind that there were costs protection issues being debated, doesn't particularly improve the look of the board's belligerent complaints regarding the applicant's alleged delay here. In that...