Walker v Leonach
 IESCDET 42
An Chúirt Uachtarach
The Supreme Court
|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.|
This determination concerns a decision of the Court of Appeal made on 15 May 2018; . 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.
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.
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.
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.
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.
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 that he had ‘no objection in the circumstances of this case to the issue of the public right of way being pleaded and litigated by the defendants as part of their defence without his fiat.’
In the judgment of the Court of Appeal, there was a full review of the High Court's findings and a consideration of the law as to declarations, as to the fiat of the Attorney General and as to maps and witnesses and other issues. A motion as to further evidence, the defendants complain, was ignored. This was, on the plaintiff's case, the third such instance of evidence being introduced late. According to the defendants it was improperly dealt with and that this traversed important constitutional rights. Establishing user as of right, as opposed to by toleration, or any existing but largely forgotten public right of passage is very difficult. There is nothing to suggest that the Court of Appeal dealt improperly with the case or the motion. Issues as to costs are also claimed to be wrongly decided. The appeal and the motion for further evidence were refused with no order. The High Court costs were limited to interim and interlocutory costs against the defendants and, as noted, about half the costs of the actual hearing.
In the judgement of the Court of Appeal, it was found that the High Court had correctly concluded that there was no public right of way. Whelan J analysed the law as to public rights and as to mere usage:
126. The trial judge classified the stance of the appellant and his father as ‘tolerance of occasional trespass’ and as such inconsistent with a claim of implied dedication by either or both of them of the disputed route to public use. At the level of principle user of a pathway without express permission is not necessarily user as of right. Whether particular acts of user amount to user as of right requires account to be taken of all the material...
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