Waterford City and County Council v Centz Retail Holdings Ltd

CourtHigh Court
Docket Number2020 No. 262 MCA
JudgeMr. Justice Garrett Simons
Judgment Date26 Mar 2021
JurisdictionIreland
Neutral Citation[2021] IEHC 174

[2021] IEHC 174

THE HIGH COURT

2020 No. 262 MCA

In the Matter of Section 160 of the Planning and Development Act 2000 (As Amended)

And in the Matter of an Application

Between
Waterford City and County Council
Applicant
and
Centz Retail Holdings Limited
Centz Stores 7 Limited
ICE Cosec Service Limited
Naeem Maniar
Centz Stores 8 Limited
Respondents

Planning and development – Injunction – Joinder – Respondent seeking to have certain findings in the principal judgment revisited – Whether the respondent had demonstrated strong reasons for revisiting the principal judgment

Facts: The applicant, Waterford City and County Council (the planning authority), instituted proceedings pursuant to s. 160 of the Planning and Development Act 2000, seeking to restrain the carrying out of unauthorised retail development at three premises within its functional area. The application for the planning injunction was heard on 14 December 2020, and a written judgment delivered on 16 December 2020 (the principal judgment): [2020] IEHC 634. The planning authority’s application was successful. The orders were intended to have immediate effect. The High Court directed that the unauthorised retail use cease from midnight on 16 December 2020, and that certain unauthorised signage be removed within 72 hours of that date. The parties reached agreement on the issue of costs and the matter was listed before Simons J on 15 February 2021 for the purpose of making an order on consent. The fourth respondent, Mr Maniar, requested that two aspects of the principal judgment be revisited. The first was the description of his affidavit evidence as “evasive”. The second concerned his joinder to the proceedings as a respondent.

Held by Simons J that Mr Maniar had a full right of appeal against the principal judgment to the Court of Appeal and that he had chosen, instead, to pursue an application to have the High Court revisit its own judgment. Simons J held that the finding which it was sought to revisit was not a peripheral or incidental finding; rather, it formed an essential part of the rationale for the decision. Simons J held that the threshold which had to be met on this application was higher than that in respect of an appeal and that it was necessary to identify “strong reasons” for setting aside an operative finding in the principal judgment, applying Bailey v Commissioner of An Garda Síochána [2018] IECA 63.

Simons J held that Mr Maniar had not demonstrated any “strong reasons” for revisiting the principal judgment and that the principal judgment therefore stands. Simons J held that the final orders in the proceedings could be drawn up in accordance with the agreed draft.

Application refused.

JUDGMENT of Mr. Justice Garrett Simons delivered on 26 March 2021

INTRODUCTION
1

This judgment addresses an application to revisit certain findings made in an earlier written judgment delivered in these proceedings on 16 December 2020.

2

The background to the application to revisit the earlier judgment is as follows. These proceedings were instituted pursuant to section 160 of the Planning and Development Act 2000 (“ the PDA 2000”). Waterford City and County Council (“ the planning authority”) sought to restrain the carrying out of unauthorised retail development at three premises within its functional area.

3

The application for the planning injunction was heard on 14 December 2020, and a written judgment delivered on 16 December 2020 (“ the principal judgment”). The principal judgment had been approved and posted on the Courts Services' website on the same date: it bears the neutral citation [2020] IEHC 634. The planning authority's application was successful.

4

As appears from the terms of the principal judgment, the orders were intended to have immediate effect. The court directed that the unauthorised retail use cease from midnight on 16 December 2020, and that certain unauthorised signage be removed within 72 hours of that date.

5

The only issue which remained outstanding was costs. The parties were requested to correspond with each other with a view to agreeing the position on costs. It should be explained that the costs issue was complicated by the fact that the respondents had been successful in an earlier application to set aside an interim order. The costs of that earlier application had been reserved, and fell to be dealt with as part of the final costs order in the proceedings.

6

The parties reached agreement on the issue of costs and the matter was listed before me on 15 February 2021 for the purpose of making an order on consent. Shortly before that listing, however, one of the respondents notified my registrar that he intended to apply to have certain findings in the principal judgment revisited.

APPLICATION TO REVISIT PRINCIPAL JUDGMENT
7

Mr. Maniar, the fourth named respondent, has requested that two aspects of the principal judgment be revisited. Mr. Maniar is a director and the group chairman of the companies which had operated the three retail premises the subject-matter of the application for a planning injunction under section 160 of the PDA 2000. Mr. Maniar has confirmed that, at all material times, he was represented by the solicitor having carriage of the proceedings on behalf of all of the respondents, and by counsel retained by her. Indeed, it appears that Mr. Maniar was the person giving instructions on behalf of the corporate respondents. Mr. Maniar swore seven affidavits in the proceedings on behalf of himself and the corporate respondents.

8

It is only since the delivery of the principal judgment that Mr. Maniar has parted ways with his former legal representation. The application to revisit the principal judgment has been pursued by him as a litigant in person.

9

The application has been listed before me twice (on 15 February 2021 and 22 March 2021, respectively). At the direction of the court, Mr. Maniar filed a written submission dated 19 February 2021 setting out the basis for his application. Mr. Maniar confirmed at the subsequent directions hearing on 22 March 2021 that he did not require a further oral hearing on the application.

10

None of the other parties to the proceedings support the application to revisit the principal judgment. Counsel on behalf of the corporate respondents indicated to the court that it has been explained to Mr. Maniar, by his former legal representatives, that all of the respondents had been afforded a proper opportunity to adduce affidavit evidence and to present their case at the hearing on 14 December 2020.

11

The planning authority's position is that it is ultimately a matter for the court as to whether it accedes to the application. However, the planning authority explains that it is anxious to avoid the necessity of having to incur additional costs, and to avoid any delay in the drawing up of the final orders. The planning authority filed short written submissions on 11 March 2021 for the assistance of the court.

12

The two aspects of the principal judgment which Mr. Maniar seeks to have revisited are as follows. The first is the description of his affidavit evidence as “evasive”. The second concerns his joinder to the proceedings as a respondent. I will address each of these issues presently. Before turning to that task, however, it is necessary first to consider the nature of the jurisdiction to revisit a written judgment.

JURISDICTION TO REVISIT OR REOPEN JUDGMENT
13

The planning authority, in its written submissions, has very helpfully referred me to the judgment of the Court of Appeal in Bailey v. Commissioner of An Garda Síochána [2018] IECA 63. The Court of Appeal confirmed that a court of first instance does have jurisdiction, prior to the order envisaged by the judgment having been drawn up and perfected, to revisit an issue decided in a written judgment. The Court of Appeal posited the following test. The High Court, if asked to revisit an issue already decided in a written judgment, must be satisfied that there are “exceptional circumstances” or “strong reasons” which warrant it doing so. The principle of legal certainty and the public interest in the finality of litigation dictate that such a jurisdiction must be exercised sparingly.

14

The Court of Appeal went on to explain that these considerations apply with even greater force to the decision of an appellate court, which is normally to be regarded as final and conclusive. The Court of Appeal made extensive reference in this regard to the judgment of O'Donnell J. in Nash v. Director of Public Prosecutions [2017] IESC 51. In particular, part of the following extract from his judgment is cited with approval.

“Litigants, lawyers, witnesses and observers can all make mistakes. Judges, even judges in appellate courts reviewing decisions for error, make mistakes; they do not mean to but they do. But they try extremely hard not to, and for the most part succeed. And in particular, they try to get the decision correct. The core and irreducible function of any court, even in cases with obvious and profound general consequences, is to resolve the issues between the parties to the litigation. The facts must be ascertained and recounted, not to provide an authoritative record of information to future generations, but to identify the issues between the parties which has given rise to the dispute. Even then it is worth recalling that while a decision is binding between the parties as to the legal consequences, the decision as to what occurred in the past, or prediction of what may occur in the future, is made by a person who was not, or will not be, present. Any decision in a civil case is made on evidence sometimes limited and unsatisfactory, on a balance of probabilities, and is reviewed on appeal by the standard which considers whether such findings of primary fact were open to the trial court on the evidence. It is not perfection...

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