Tracey v Ireland
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 30 July 2019 |
| Neutral Citation | [2019] IESC 70 |
| Date | 30 July 2019 |
| Court | Supreme Court |
| Docket Number | [Supreme Court No. 168/2012] [Court of Appeal No. 2014/000435] [High Court Record No. 2009/11765P] |
[2019] IESC 70
THE SUPREME COURT
MacMenamin J.
MacMenamin J.
Dunne J.
Peart J.
[Supreme Court No. 168/2012]
[Court of Appeal No. 2014/000435]
[High Court Record No. 2009/11765P]
AND
AND
AND
Damages – Negligence – Breach of duty – Appellants seeking damages – Whether an arguable case had been shown against the respondents
Facts: The appellants, Mr and Mrs Tracey, initiated proceedings on the 23rd December, 2009. They, inter alia, claimed damages for negligence and breach of duty against the respondents, Ireland, the Attorney General and Dublin City Council, arising from matters described in a judgment delivered by the Supreme Court in White v Dublin City Council [2004] 1 IR 545. When motions to strike out the proceedings were heard by the High Court (O’Neill J) on the 26th March, 2012, there was no appearance from either of the appellants. O’Neill J held under O.19, r.28, that the appellants’ action disclosed no reasonable cause of action against any of the respondents, and dismissed the proceedings. The appellants appealed against the orders striking out the proceedings.
Held by the Supreme Court (MacMenamin J) that no arguable case had been shown against the respondents.
MacMenamin J held that the appeal would be dismissed.
Appeal dismissed.
This is an appeal against orders made by the High Court, O'Neill J., striking out the proceedings brought by the appellants, Kevin and Karen Tracey. This judgment is delivered on the same day as other judgments concerning appeals brought by the appellant, Kevin Tracey, which were heard by this Court on the 20th and 21st June, 2019. Four of those judgments concern defamation proceedings. This judgment does not, and concerns, rather, proceedings brought by the appellant and his wife, Karen Tracey, against Ireland, the Attorney General and Dublin City Council.
When the motions to strike out these proceedings were heard by the High Court, O'Neill J., on the 26th March, 2012, there was no appearance from either of the appellants. O'Neill J. held under O. 19, r.28, that the appellants” action disclosed no reasonable cause of action against any of those respondents, and dismissed the proceedings. The judgment delivered in the case of Kevin Tracey v. Irish Times & Others today (Appeal No. 454/2011) sets out some general considerations applicable to these appeals, but each case must be considered on their individual facts. While the Irish Times judgment may serve as a point of reference, it must be borne in mind that the proceedings, and circumstances in this case, are entirely different in form and substance.
The instant proceedings were initiated on the 23rd December, 2009. The appellants, inter alia, claimed damages for negligence and breach of duty against the respondents arising from matters described in a judgment delivered by this Court in White v. Dublin City Council [2004] 1 IR 545. Five years then elapsed until the appellant brought this case. There is no explanation as to why this claim was not brought any sooner. For the reasons set out in this judgment, it is unnecessary to consider whether the claim is statute barred or should otherwise be dismissed for delay.
The starting point for consideration must be this Court's judgment in White v. Dublin City Council. The headnote in the Irish Reports sets out:
‘Section 82(3B)(a) of the Local Government (Planning and Development) Act 1963 provides inter alia that ‘an application for leave to apply for judicial review under [Order 84 of the Rules of the Superior Courts] in respect of a decision [of a planning authority on an application for planning permission on a decision of An Bord Pleanála on any appeal or reference] shall
(i) Be made within the period of two months commencing on the date on which the decision is granted.’
As set out in the Report in White, the notice party, that is Mr. Tracey alone, made two applications for planning permission to Dublin City Council to build a house. Both applications were advertised in accordance with the provisions of the Planning Acts. The applicants (Maud White and her husband, Judge Michael White), who occupied the adjoining property, were aware of both such applications, and were satisfied, on the basis of the plans grounding the first application that their property would not be overlooked by the proposed development. The first application having been unsuccessful, Dublin City Council assisted Mr. Tracey in altering a second application to facilitate a grant of planning permission. One result of the alterations to the plans was that the development would overlook the applicants” property. Despite this, Dublin City Council did not exercise its discretion under Regulation 17 of the Local Government (Planning and Development) Regulations 1994 to require Mr. Tracey to advertise modified plans. Accordingly, the applicants in White, and their family, were unaware that their property would be overlooked by the development, and had not opportunity to object to the second application on that basis. The applicants therefore sought judicial review of the decision to grant planning permission. Their application was brought after the expiry of the two-month time limit provided for in s.82(3B)(a)(i) of the Act of 1963 because they were unaware of the facts giving rise to their claim until after that period had elapsed. They also sought a declaration that the statutory time provision was unconstitutional. The High Court (O'Caoimh J.) granted the relief sought quashing the decision of Dublin City Council to grant planning permission and declared s.82(3B)(a)(i) of the Act of 1963 to be unconstitutional. The High Court also certified that the case involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. Dublin City Council and Mr. Tracey appealed.
This Court, (Denham, Murray, McGuinness, Fennelly and McCracken JJ.), dismissed the appeal, holding that although it might be more convenient for the court to consider the constitutional issue first in the absence of overriding conditions requiring a departure from the normal rule in the interests of justice, the constitutionality of s.82(3B)(a)(i) could only be considered if the applicants could first show that their claim would succeed. In so concluding, this Court referred to Brady v. Donegal County Council [1989] ILRM 282, and McDaid v. Judge Sheehy [1991] 1 IR 1. This Court concluded that Dublin City Council's failure to require the notice party to advertise the modified plans was irrational and unreasonable in that it did not take account of the likelihood that members of the public might wish to object. ( The State (Keegan) v. Stardust Compensation Tribunal [1986] IR 642; O'Keeffe v. An Bord Pleanála [1993] 1 IR 39). This Court then considered the question of the constitutionality of the section. In finding the section unconstitutional and dismissing the appeal, this Court held that, in laying down a limitation period, the legislature had to balance a plaintiff's right of access to the Courts against a defendant's right to protection against unjust or burdensome claims and the public interest in the avoidance of stale claims. This Court held that, in adjudicating on the constitutionality of such a provision, it could not substitute its own view on the appropriate balance for that of the legislature, but must determine from an objective stance whether the balance in the legislation was so contrary to reason and fairness as to constitute an unjust attack on the individual's constitutional rights ( Tuohy v. Courtney [1994] 3 IR 1]. This Court went on to hold that special considerations applied in relation to the limitation of actions in planning law. It was in the public interest, as well as in the interests of a successful applicant for planning permission, to dispel uncertainty about development at the earliest possible date. Applicants for development and planning authorities were also entitled to early notice of any challenge to the validity of a planning decision to facilitate an adjournment of any appeal so as to limit unnecessary costs. ( Cavern Systems Dublin Limited v. Clontarf Residents Association [1984] ILRM 24; KSK Enterprises Limited v. An Bord Pleanála [1994] 2 IR 128). This Court held that the absolute time limit in the section undermined or compromised the substantive constitutional right of access to the courts, and had the effect of depriving the applicants of an opportunity to challenge the impugned decision for reasons outside their control, but which related to the unlawful act of Dublin City Council. Thus, while it was a relevant consideration that the legislature had seen fit to re-enact an absolute time limit as contained in the Local Government (Planning & Development) Act, 1992, it was equally relevant to consider as a useful and relevant indicator of what may be considered fair and just in such an enactment, that the Planning and Development Act, 2000, provided for an extension of the limitation period in certain circumstances.
Mr. Rose was the Dublin City Council planning official concerned with the application. On his role, Fennelly J. observed in his judgment:
‘I do not say that the first respondent's decision was irrational in the broad sense. Mr Rose's planning expertise is undoubted. I consider rather that Mr Rose on behalf of the first respondent, excluded from his consideration the likelihood that the applicants would want to object and that, if they did, the first respondent would have had to consider the objection. This was, no doubt, an understandable...
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Mangan v Dockery, Mangan v Dockery
...of process pursuant to the Court's inherent jurisdiction are intertwined. MacMenamin J. is again quoted, this time from Tracey v. Ireland [2019] IESC 70 (Unreported, Supreme Court, 31 st July, 2019) at para. 48 Moving to the requirement which exists for there to be a reasonable basis for br......