Andrew McKeown BL

About this case:

• Citation:
  [2020] IESC 54
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Iseult O'Malley

Background

Mr Kenny initiated legal proceedings against the Provost, Fellows and Scholars of Trinity College, The University of Dublin in relation to the development. Trinity College Dublin planned the construction of Trinity Hall, a 25,000m² student accommodation complex in Dartry. Mr Kenny has engaged in litigation about the development, with Trinity College and other parties, for over 20 years.

Planning permission for Trinity Hall was granted by Dublin Corporation, now Dublin City Council, in 1999. Mr Kenny objected to the proposal and appealed to An Bord Pleanála, which also decided to grant permission in 2000.

Mr Kenny then sought leave to apply for judicial review of the Board’s decision to grant permission. Leave was refused in December 2000 by Mr Justice Liam McKechnie on the basis that the arguments raised did not meet the necessary threshold of “substantial grounds” under s.82(3)(a) of the Local Government (Planning and Development) Act 1963.

Mr Kenny subsequently expended “a great deal of fruitless effort, over many years, in attempting to have this judgment, and various related and mounting costs orders, set aside on grounds ranging from allegations of fraud to claims that permission for the development was given in breach of EU law”.

Mr Justice Frank Clarke made an Isaac Wunder order against him in 2006, precluding him from bringing any further proceedings against Trinity or the Board without leave of court. That order did not affect proceedings and appeals already in being.

In the meantime, in 2001, Trinity made a compliance submission to Dublin City Council regarding conditions attached to the permission. The Council issued a compliance order in January 2002, confirming that Trinity had complied with the terms of the permission. Mr Kenny was granted leave to seek judicial review in respect of that decision. He later issued the instant proceedings seeking orders under the Planning and Development Act 2000 s.160.

Section 160 applies where an “unauthorised” development has been, is being or is likely to be carried out or continued. A person may apply to the High Court or Circuit Court, depending upon market value, and the court may make any order it considers necessary to ensure that an unauthorised development is not carried out or continued, or that the land is restored to its previous condition, or that the development is carried out in conformity with the permission pertaining to that development.

The making of an order is a matter within the discretion of the court. In Meath County Council v Murray [2018] 1 IR 189 and An Taisce v McTigue Quarries [2018] IESC 54 the Supreme Court identified a number of factors to be taken into account, including inter alia the nature of the breach, the conduct of the developer, the reason for the infringement, the attitude of the planning authority, the public interest in upholding the integrity of the planning and development system.

In November 2002, Mr Kenny also sought an injunction restraining Trinity from completing the development, and an order directing the rehearing of the original judicial review. An application by Trinity to have these proceedings as being frivolous, vexatious and an abuse of process, or as being bound to fail, was unsuccessful in the High Court. However, Trinity’s appeal to the Supreme Court was allowed in April 2008 and those proceedings were dismissed ([2008] IESC 18).

The compliance judicial review and the s.160 application were eventually listed for hearing on the same day in March 2004, but the court decided to hear them separately and heard the compliance judicial review matter first. The judicial review claims were dismissed in October 2004. Mr Kenny appealed against that decision. In 2009, the Supreme Court dismissed the appeal ([2009] IESC 19).

In reliance on that judgment, Trinity issued a motion to dismiss the s.160 application pursuant to the inherent jurisdiction of the court on the basis that it was moot, res judicata, bound to fail and/or frivolous and vexatious and an abuse of process.

The court referred to the jurisprudence on the power of the court to strike out proceedings and the related principle dealt with in the Henderson v Henderson line of authority. In the light of the jurisprudence, Mr Justice Kevin Feeney approached the matter on the basis identified in A.A. v The Medical Council [2002] IESC 70 – that he had to make a broad merits-based judgment, taking into account the public and private interests involved and also taking into account all of the undisputed facts in the case. Mr Justice Feeney struck out Mr Kenny’s application, finding that the issues he raised had either been definitively decided in the course of related proceedings, or should have been raised earlier, or were insignificant, to the point that continuation of the litigation amounted to an abuse of process

Mr Kenny appealed to the Supreme Court.

Supreme Court

He relied on the High Court judgment in Krikke v Barranafaddock Sustainability Electricity Ltd [2019] IEHC 825, which Ms Justice Iseult O’Malley, giving the judgment of the Supreme Court, noted was under appeal. Judgment is pending in the Court of Appeal. She said that she did not believe that the outcome in Krikke could assist Mr Kenny in any material respect. The court was not concerned with the status of an unchallenged decision. The validity of the compliance decision has been challenged by Mr Kenny on particular grounds, and he failed in that challenge.

Ms Justice O’Malley said that he “cannot now seek to achieve the same outcome by arguing in separate proceedings, where the Council is not a party, that, notwithstanding the decision of this Court, the compliance decision was ultra vires on grounds other than those previously raised by him”.

The judge said that while the case did not fall within the strict confines of the principles of res judicata or issue estoppel, as the parties are not identical, it was “a clear example of abuse of process”. Mr Kenny, she found, was attempting to re-litigate an issue that had been determined against him, by way of a collateral attack.

She said that “if the compliance decision was lawful, then it was lawful for Trinity to construct the buildings in accordance with that decision. To argue that the construction is unlawful, where that argument is based entirely on the plans approved by the compliance decision, is in reality an attack on that decision.”

Ms Justice O’Malley said that unlike Sweetman v An Bord Pleanála [2018] IESC 1, the proceedings did not involve two separate administrative decisions. Rather, Mr Kenny sought, having failed in his challenge to the decisionmaker, to attack the beneficiary of the decision for acting in accordance with it. The judge said that the position of a party who has the benefit of a decision “that has in fact survived a challenge brought at the correct time must, I think, be all the stronger”.

In Sweetman, Chief Justice Frank Clarke held: “A party who has the benefit of an administrative decision which is not challenged within any legally-mandated timeframe should not be exposed to the risk of having the validity of that decision subsequently challenged in later proceedings which seek to quash the validity of a subsequent decision on the basis that the earlier decision was invalid.”

Ms Justice O’Malley citing Mr Justice McKechnie in An Taisce v An Bord Pleanála [2020] IESC 39 said that this has its roots in the effective administration of justice, in litigation fairness and in legal certainty. “The overall aim is to protect the integrity of the legal norm.”

Conclusion

The court held that it would be “entirely contrary to the principle of finality of litigation” and to what was described in McCauley v McDermott [1997] ILRM 486 as “the general interest of the community in the termination of disputes and the finality and conclusiveness of judicial decisions” to permit this litigation to proceed further. The court held that Mr Justice Feeney was correct in finding that to do so would be to permit an abuse of process.

The appeal was dismissed.