Tír na n Óg Projects Ireland Ltd v Kerry County Council

CourtHigh Court
JudgeMr. Justice Clarke
Judgment Date28 February 2008
Neutral Citation[2008] IEHC 48
Date28 February 2008

[2008] IEHC 48


[No. 9719 P/2004]
Tír na n Óg Projects Ireland Ltd v Kerry Co Council







SHELL E & P IRELAND LTD v MCGRATH & ORS UNREP SMYTH 5.12.2006 2006/52/11127 2006 IEHC 409



Discovery - Privilege - Legal advice privilege - Waiver of privilege - Disclosure of document by accident - Document placed on public file by accident - Relevance - Whether document relevant - Whether document privileged - Whether privilege waived - Whether solicitor realised mistake had been made - Whether reasonable solicitor would have taken disclosure to have been result of mistake - Shell E & P Ltd v McGrath (No 2) [2006] IEHC 409 [2007] 2 IR 574 and Byrne v Shannon Foynes Port Co [2007] IEHC 315 (Unrep, Clarke J, 7/9/2007) followed - Discovery ordered, privilege waived (2004/9719P - Clarke J - 28/2/2008) [2008] IEHC 48

Tír na n Óg Projects Ireland Ltd v Kerry County Council

: The plaintiff sought a declaration that the defendant had been deemed to grant a planning permission for a development. No decision had been made by the defendant within the time specified in the Planning and Development Act 2000. The issue arose as to whether the defendant had been in default and whether it involved a material contravention of the relevant development plan. Discovery of a single document was sought. Privilege was alleged to attach to the document, mistakenly included on a public file.

Held by Clarke J. in directing discovery of the document in question and ruling that any privilege attaching to the document in question had been waived by the defendant. The document in question was relevant to the issues arising in the pleadings and while the document provided legal advice, it was available on a public file. There was no error in this inclusion and privilege had been waived.

Reporter: E.F.


JUDGMENT of Mr. Justice Clarke delivered on the 28th day of February, 2008

1. Introduction

2 1.1 In these proceedings the plaintiffs ("Tír na n Óg") seek a declaration that the defendant ("Kerry Council") has been deemed to grant a planning permission for a development of thirty three holiday homes and a leisure centre at Cappanacush, Blackwater, Killarney. Tír na n Óg made a planning application in respect of that development which was given record No. 288/02. It is said that no decision was made by Kerry Council within the time specified in the Planning and Development Act, 2000 ("the 2000 Act"). What is sought is, therefore, a so called default planning permission which arises in circumstances where the planning authority concerned does not make a decision within the time limits specified.


3 1.2 It is also important to note that the jurisprudence of the courts in relation to default permissions establishes that a default permission is not available in circumstances where the application which was not determined on time, involved a material contravention of the development plan then in force. Thus it is open to a defendant local authority to seek to persuade the court that an application, in respect of which a default permission is alleged to arise, was in material contravention of the relevant development plan, and if that be established, any claim for a declaration that a permission has been deemed to have been granted will fail.


4 1.3 It is also important to note that Kerry Council has, in its defence in these proceedings, raised an objection in which Kerry Council maintains that the case as brought by Tír na n Óg is procedurally flawed, to a fatal extent, by reason of a number of matters. The relevant objections include a contention that, by reason of the fact that Tír na n Óg has brought these proceedings as plenary proceedings, it has sought to circumvent the time limits for the bringing of judicial review proceedings to challenge a decision of a local authority in a planning matter, as imposed by the Rules of the Superior Courts, and the provisions of the 2000 Act. In particular Kerry Council relies, in that context, on a decision of the 30 th of October, 2002 whereby Kerry Council refused planning permission for the development now sought to be the subject of a default permission. That decision would appear to have been made well after the expiry of the period within which a decision on the planning application should have been made by virtue of the time limits specified in the 2000 Act. It is said that the attempt to seek a declaration as to the existence of a default permission amounts to a challenge to that refusal decision which, it is argued, brings the case within the ambit of s. 50 of the 2000 Act, which in turn would require that any such challenge must be brought within a two month timescale, and only by means of judicial review.


5 1.4 I note these matters because they are of relevance to the limited issue which I now have to decide which concerns an application for discovery in respect of a single document. In the context of discovery the issues which may be likely to arise in the proceedings are, of course, always of central importance. For that reason it is important to note that, by reason of the pleadings to which I have referred, the issues which are likely to arise at trial would seem to be the following:-


a A. Whether Kerry Council was in default in making a decision within the timescale required under the 2000 Act. On the basis of the evidence currently available there does not seem to be any dispute but that Kerry Council was so in default;


b B. Whether the application for planning permission which is the subject matter of these proceedings involved a material contravention of the relevant development plan; and


c C. Whether the proceedings are procedurally flawed to a fatal extent. In that context the question of the belated decision by Kerry Council to refuse planning permission is potentially relevant.


6 1.5 Against the background of that general analysis of the litigation as a whole, it is now necessary to turn to the specific discovery issue which arises between the parties.

2. The Discovery Issue

2 2.1 The issue which arises is somewhat unusual. Firstly, discovery is sought only of one document. That document undoubtedly exists and involves the giving of legal advice. There clearly are significant issues as to whether the document concerned may be privileged. It will be necessary to turn to the question of privilege in due course.


3 2.2 In addition, it is clear that a professional advisor of Tír na n Óg has seen the document in question in circumstances where it was openly available on the public planning file maintained by Kerry Council. While the professional advisor concerned has not made a...

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    ...the plaintiff sought to rely in this regard on the decision of the High Court in Tir na nOg Projects Ireland Ltd. v. Kerry County Council [2008] IEHC 48 which sets out the test to be applied to determine whether privilege has been waived in circumstances of mistaken or inadvertent disclosur......

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