Dunnes planning permission challenge an abuse of process

About this case:

• Judgment:
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The original and ongoing dispute concerns a shopping centre development at Ferrybank, in County Kilkenny, in which the anchor store is owned by Dunnes. However, Dunnes has consistently attempted to avoid its contractual obligation to open the store.

The current case concerned Dunnes’ challenge of a retention permission granted to Deerland by An Bord Pleanála, which authorises five alterations which the Court described as “individually and collectively…minor and cosmetic in nature”.

In what Barrett J described as a “twist worthy of Lewis Carroll”, it seemed that Dunnes had no objection to the specific alterations being made, making this “something of a first, so far as planning-related judicial review applications are concerned”.

The Court first outlined the chronology of the dispute which forms the context of the current case. It noted that since work on the shopping centre commenced in 2007, Dunnes had utilised a number of methods to avoid having to open its anchor store, including challenging that the “practical completion” of the shopping centre had been achieved.

However, the Court noted that it was only in September 2012 that Dunnes began to express concerns about planning permissions.

At that time “notably and, the Court finds, not un-coincidentally”, Dunnes employed new architects, replacing those who had been involved in the development of the shopping centre from the beginning.

Barret J expressed a belief that “the spectre of planning issues” were “raised as the phantom issue on which, from this point onwards, Dunnes seeks to hang its continuing efforts to avoid doing as it is contractually required to do”.

After noting Dunnes’ company secretary Mr Sheridan’s affidavit as including clear evidence that the current application related to the broader dispute regarding the opening of the store, the Court proceeded to outline the key terms of the Development Agreement.

It noted that none of the changes at issue within the proceedings were the type to require Dunnes’ consent under the Agreement, that Dunnes’ architects were kept informed of the development’s progress throughout, and that despite having the opportunity and right to do so, Dunnes had not raised any issues relating to planning permission during the inspection/objection process as contained within the Agreement.

The Court then considered various arguments made by Dunnes during the proceedings. It found that many of the arguments were inapplicable to the current dispute, as they related to the broader ongoing dispute with regards to the opening of the anchor store.

In particular, the Court expressed surprise that Dunnes, accused as it was of engaging in abuse of process, made a number of arguments in which it pointed out other abuses of process which it had not engaged in, such as slowing down proceedings and repeatedly appealing other arbitrations.

As noted by Barret J, “It seems a curious argument for a party against whom an allegation of ‘abuse of process’ is made to claim that ‘Here is an abuse that we did not commit’. That does not have as its consequence that some other course of action in which that party has engaged (here the bringing of the within application) is not therefore an ‘abuse of process’”.

Dunnes objected to the claim that it ought to have sought an enforcement action in respect of the planning concerns, asking if such an action would be considered legitimate, then why were the current proceedings illegitimate.

However, the Court found that it “has enough to do without judging the merits of proceedings that Dunnes has not commenced”.

The Court then turned to the case law relating to ‘abuse of process’. It cited a number of cases, including Grant v. Roche Products (Ireland) Ltd. 4 I.R. 679, Sean Quinn Group Limited v. An Bord Pleanála 1 I.R. 505, State (Toft) v. Dublin Corporation I.L.R.M. 439and State (Abenglen Properties) v. Dublin Corporation I.R. 38.

Drawing from the above cases, the Court outlined a number of key principles in relation to ‘abuse of process’.

It found that judicial review must not be used for ulterior motives, and that ‘abuse of process’ constituted processes employed for purposes other than the attainment of the claim in the action.

The Court found that the test was whether “the party who has brought the impugned proceedings is using the legal process in a proper fashion or is abusing the process by seeking to use it to achieve an improper objective”.

Furthermore, it was for the other party, in this case Deerland, to prove that such an abuse had occurred.

In relation to remedies, it was found that the fact that a lawful remedy might have a collateral benefit did not affect their right to seek or be granted a remedy. However, Court proceedings should not be used in order to pursue some collateral advantage.

The Court noted that the jurisdiction to strike out proceedings as an ‘abuse of process’ must be exercised with caution, and the Court must be convinced that the applicant: “i) has an ulterior motive, (ii) seeks a collateral advantage beyond what the law offers, and (iii) has instituted the proceedings for a purpose which the law does not recognise as a legitimate use of the remedy sought”.

The Court also noted the importance of taking into account the interests of other, bona fide litigants, who must often compete for court time, and should be given precedence over “flimsy” litigations or those entirely concerned with “private gain”.

Concluding the judgment, the Court found that “the true object of this judicial review application is to enable Dunnes to delay or avoid compliance with its contractual obligations to fit-out and occupy the anchor store and/or to facilitate the creation of a contrived legal justification for Dunnes’ long-time failure to comply with those obligations”.