Walker v Leonach

 
FREE EXCERPT

[2019] IESCDET 42

An Chúirt Uachtarach

The Supreme Court

Clarke C.J.

Charleton J.

O'Malley J.

A:AP:IE:2014:000621

DETERMINATION
BETWEEN
JOSEPH WALKER
PLAINTIFF
AND
NIALL LEONACH

AND

NOEL BARRY
DEFENDANTS
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court does not grant leave to the Defendants / Applicants to appeal to this Court from the Court of Appeal
REASONS GIVEN:
ORDER SOUGHT TO BE APPEALED
COURT: Court of Appeal
DATE OF ORDER: 15th May, 2018
DATE OF PERFECTION OF ORDER: 6th November, 2018
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 3rd December, 2018 AND WAS IN TIME.
REASONS GIVEN:
1

This determination concerns a decision of the Court of Appeal made on 15 May 2018; [2018] IECA 132. The applicants are walkers, defendants in the action seeking a declaration that they are not entitled to enter the plaintiff's lands, part of a well-meaning group intent on preserving and identifying what they say are public rights of way in County Wicklow in the environs of Enniskerry. The plaintiff in the action, respondent to this application for a further appeal, is the owner of some fields over which the defendants asserted they had a right to walk, claiming in particular that it was a public right of way of long standing.

2

The appeal concerned a judgment of 8 February 2012 in the High Court whereby MacMenamin J granted to the plaintiff an order thus:

THE COURT DOTH DECLARE that the Plaintiff's lands at Annacrievy in the County of Wicklow as comprised within Folio 6913 of the Register of Freeholders County Wicklow and the 48.5 acres of adjoining unregistered land are not subject to any public right of way.

3

The judgment of Whelan J, sitting with Peart and Gilligan JJ, modified that order consequent upon a written judgment, stating:

The Court doth modify in the following terms the declaration granted by the High Court viz that the Defendants are not entitled to enter upon the Plaintiff's lands at Annacrievy in the County of Wicklow as comprised within Folio 6913 of the Register of Freeholders County Wicklow and the 48.5 acres of adjoining unregistered land for the purpose of purporting to exercise a public right of way over same.

4

The Court of Appeal made no order as to costs. The High Court awarded costs in favour of the plaintiff, limited to 6 days of hearing.

5

In a wide ranging application by the defendants a large number of points are canvassed. The point of the exercise whereby there is a further appeal to the Supreme Court available after an already full appeal to the Court of Appeal is to identify a point of law of public importance or to demonstrate why the interests of justice requires a further appeal.

6

The plaintiff took this case in the High Court. Another case, according to the judgment of MacMenamin J at first instance, about rights to walk asserted by the group of walkers was taken in the Circuit Court. These were separate defendants and plaintiffs, however. It lasted 3 days while this lasted 11 days. The defendants claim an ancient public right of way; the Old Coach Road above the village of Curtlestown near Enniskerry. The plaintiff sought declaratory and other relief. The background was one of assertion and counter assertion. Since an alleged public right was involved, the Attorney General was contacted. He stated in September 2010...

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