Supreme Court dismisses appeal on grounds of inordinate and inexcusable delay in planning permission damages claim.

THE SUPREME COURT

[Supreme Court Appeal No: 528/2013]

[High Court Record No: 1999 10181 P]

Clarke C.J.

McKechnie J.

O’Malley J.

BETWEEN:

CLARE MANOR HOTEL LIMITED

PLAINTIFF/APPLICANT

AND

THE RIGHT HONOURABLE THE LORD MAYOR, ALDERMEN AND BURGESSES OF DUBLIN

DEFENDANTS/RESPONDENTS

JUDGMENT of Ms. Justice O’Malley delivered the 31st day of July2018

Introduction

1. This is an appeal against the order of the High Court made on the 5th of December 2013(see Clare Manor Hotel Limited v. Dublin

Corporation [2013] IEHC 519), dismissing the appellant company’s proceedings on the grounds of inordinate and inexcusable delay. In

brief, the claim was for damages arising from what the appellant contends was a corrupt refusal of planning permission on the part of

the planning authority and the wrongful procuring of a further refusal by An Bord Pleanála.

2. The planning authority was Dublin Corporation at the material time but is now Dublin City Council. For the sake of simplicity, the

parties will be referred to here as the plaintiff (or “the company”) and the defendant.

Background Facts

3. The plaintiff company had operated a hotel on a property of about 31 acres in County Dublin. The hotel was destroyed by a fire in

November 1980.In September, 1982 the plaintiff was granted planning permission for the development of a new hotel on the site. This

hotel was never constructed. The plaintiff subsequently applied, in 1986, for permission to build 156 houses on the same site. On the

12th May 1987 the defendant refused permission by reference to four separate reasons relating to the inadequacy of the then

existing sewerage system, the fact that the proposed road access depended upon a public road that was not yet under construction,

the unacceptable layout of the open spaces in the development and the inadequacy of the carriageways planned.

4. The refusal of planning permission was appealed to An Bord Pleanála. At the hearing, officials of the defendant informed the Board

that the plaintiff had lodged a claim for compensation in respect of the refusal of permission, and also that there was a proposal to

rezone the lands from residential to agricultural use. The Board upheld the refusal, citing two of the four reasons that had been given

by the defendant: the deficiencies in the sewerage system and the difficulties with road access. These were “non-compensatable”

grounds under the relevant statutory provisions.

5. It is relevant to note that no challenge was ever taken against the decision of the Board, and that it is not named as a defendant

in these proceedings.

6. In May 1990 the lands were sold to the owners of adjacent lands, Gannon Homes Ltd. for IR£650,000. The plaintiff claims that this

sale was at agricultural prices. The new owners were granted planning permission for the development of 720 houses, 250 of which

were situated on approximately 25 acres of the lands purchased from the company. It appears that the remainder of the lands were

subsequently sold by Gannon Homes Ltd. in 1991 for IR£720,000.

7. In 1994 the plaintiff’s accountant sought an explanation as to why Gannon Homes had succeeded in obtaining permission when the

company had not. By letter of the 21st October 1994the defendant stated that the essential differences between the applications

was that Gannon Homes had proposed to invest in sewerage facilities and additional water mains at the site, to contribute towards

essential improvements works to the Santry Valley sewer and to provide for road access in the form of an extension to an existing

distributor road.

8. In January 1998 Mr. Gerald Bresnan, a director of the company, wrote to the Chairman of the Tribunal of Inquiry into Certain

Planning Matters and Payments (hereafter “the Tribunal”) asking for an investigation into the matter.

The proceedings

9. A plenary summons was issued on behalf of the plaintiff on 12th October 1999. The claim was for “damages for Maladministration

including (but not limited to) negligence, negligent misrepresentation, and abuse of discretionary powers and breach of the statutory

duties provided for in the Local Government (Planning and Development) Acts 1963 to 1992 exercised by the Defendants touching and

concerning the Plaintiff’s lands at Clare Manor Hotel, Balgriffin, in the County of Dublin”.

10. The plenary summons was served in January 2000 and an appearance was duly entered by the law agent. A statement of claim

was not delivered until the 17th January 2001. The claim made by the plaintiff was that the reasons given by the defendant for its

refusal of permission were not the true reasons, and that in fact the reasons were “the failure of the Plaintiff to bribe the relevant

officials and employees of the Defendants and/or the corruption of such officials/employees by an interested third party”. The refusal

was alleged to have been unlawful and based upon irrelevant planning considerations. It was pleaded that the plaintiff had only

become aware of these matters as a result of the public hearings at the Flood Tribunal. It was further pleaded that the defendant

had corruptly compounded its illegality by securing a decision from An Bórd Pleanála on non-compensatable grounds.

11. The company further claimed that the proposal to rezone the lands as agricultural had caused it to sell them at agricultural land

values. However, the rezoning proposal was alleged to have been itself corrupt, in that it was motivated by “non planning

considerations”. It was claimed that the truth of the situation had been fraudulently concealed.

12. On the 16th December 2002 the plaintiff’s solicitor was permitted to come off record. Among his reasons was the fact that,

unknown to him, the company had in fact been struck off in 1999, before the plenary summons issued. An application would have to

be made to have it restored to the register, and he was not in a position to undertake the work involved in the case. It seems that

counsel on behalf of the defendant attended court for the hearing of this application and sought, on an informal basis, an order

dismissing the proceedings – this was refused.

13. A new solicitor was not appointed until January 2004, and a notice of intention to proceed was served shortly thereafter.

14. The defendant served a notice for particulars in April 2004. The notice asked, inter alia, whether it was alleged that the Tribunal

had enquired into, or heard evidence concerning, the company’s planning application; whether it was alleged that any official or

employee of the defendant had sought payment or reward from the company; the nature of the “irrelevant planning considerations”

alleged to have motivated the refusal of permission; the nature of the matters allegedly introduced by the defendant in the appeal to

An Bord Pleanála and how they were alleged to have influenced the decision; the identity of persons alleged to have acted corruptly;

the identity of the “interested third party”; and the nature of the actions alleged to amount to fraudulent concealment.

15. The notice was not replied to at that time and there was no further communication from, or step taken by, the plaintiff until June

2011 when there was a further change of solicitor. A second notice of intention to proceed was then served on the 4th July 2011. By

letter of the 17th August, 2011 the defendant referred to the notice for particulars served in 2004, and gave consent to the delivery

of replies within a period of 21 days. The plaintiff’s replies were sent on the 19th August 2011.

16. In its replies to the queries about the Tribunal’s investigations, the plaintiff asserted that it had become clear as a result of the

Tribunal’s work that corruption was widespread and systemic in the planning process. It was stated, in response to the query as to

whether the Tribunal had investigated this particular matter, that the company’s planning file “was a matter which was addressed in

the narrative as a sequence of events on behalf of the Plaintiff”. A full and detailed answer to the query would, it was stated, be

given on publication of the Tribunal’s final report and after discovery by the defendant.

17. An almost identical answer was given to the questions concerning the allegedly corrupt actions of officials and employees, with

the additional element that the plaintiff would be seeking discovery of the Gannon Homes file.

18. The question about the “irrelevant” considerations that motivated the defendant’s refusal of permission was answered with the

assertion that it had, in its decision, referred to rezoning of the lands in a way that “clearly” indicated that the plaintiff’s land was to

be rezoned for agricultural use, thereby significantly affecting the value of the land and reducing the level of compensation to which

the company would be entitled in respect of the planning refusal. The subsequent purchaser of the land had not been treated in the

same way.

19. With reference to the matters alleged to have been introduced in the appeal before the Board, the plaintiff identified “P. Colley

(P.C.M.M.)” and “T. Galvin (Principal Officer”) as having “wrongfully and with claim of right” (sic) informed the Board of the level and

quantum of the company’s claim for compensation. It asserted that the impact of this information was self-evident.

20. The inquiry about the “fraudulent concealment” was answered with the assertion that the reason given in relation to inadequate

sewerage was “inexplicable” in circumstances where permission had previously been granted for a hotel, which would have required a

greater sewerage capacity than a development of 88 houses. Mr. George Redmond was identified as the Assistant County and City

Manager responsible for water and sewerage.

21. It may be noted here that, firstly, the answer given does not engage with the question and, secondly, it is based on an

inaccurate assertion as to the proposed development. It was an 88-bedroom hotel that had been given permission, while the

development would have been 156 houses.

22. The company’s solicitor then sought delivery of the defence. The law agent responded by stating that he had instructions to

issue a motion to dismiss the proceedings. A motion for judgment in default of defence was issued by the plaintiff on the 28th May

2012, and the defendant then issued its motion seeking an order, pursuant to the inherent jurisdiction of the court, to dismiss the

proceedings on the grounds of delay.

The evidence and submissions on the motion to dismiss

23. In brief, the defendant’s position was that there had had been a “significant” delay of almost 12 years prior to the commencement

of the proceedings and inordinate and inexcusable delay thereafter. It was complained that the plaintiff had not disclosed the precise

nature of its claim, but had pleaded its case in general terms without regard to the rule that pleas of fraud and misrepresentation

must be supported by detailed particulars.

24. With reference to the facts of the case, the defendant said that it was not aware of the identities of the officials or employees

alleged to have been involved in corrupt practices in relation to the planning application, and that it would be extremely difficult to

carry out appropriate enquiries at this point in relation to events that had taken place some 24 years earlier. The plaintiff’s replies to

particulars indicated that it intended to rely upon the finding of the Tribunal that corruption was widespread and systemic within the

planning process, and was unable to identify any of the persons involved in wrongdoing in respect of its own planning application.

25. The defendant contended that this was a case that could not be determined on documentation. Witness testimony would be

required as to the reasons and motives for the decisions made, and the lapse of time meant that memories would have faded. Of the

three individuals named in the replies to particulars, one had died and one was very elderly. Other persons who were involved at the

time would have retired.

26. In the circumstances the defendant claimed that it had been prejudiced by the delay and would be faced with an unfair trial if the

matter were permitted to proceed.

27. The plaintiff’s position was set out in an affidavit sworn by Mr. Bresnan. He averred that in the years subsequent to the refusal of

planning permission he had become aware of rumours of corruption within the defendant’s planning department. However it was only

when the Tribunal was established that it became apparent to him that the company might have a cause of action. He managed to

obtain pro bono representation with a view to seeking legal representation and asking the Tribunal to enquire into the matter in

question. On the 5th February 1998 the Tribunal responded by a letter requesting him to provide a narrative account of his complaint,

the identities of the officials concerned, copies of any correspondence and a narrative account from his architect. It was stated in

the letter that counsel for the Tribunal would consider this material and that thereafter, it would “undoubtedly” be necessary to

interview Mr. Bresnan and/or his architect.

28. Mr. Bresnan referred to the fact that when his first solicitor was before the High Court in December 2002, with the application to

come off record, counsel for the defendant had applied (not on notice) for an order dismissing the proceedings. This had been

refused.

29. Mr. Bresnan averred that the notice for particulars, served in April 2004, was not replied to because of difficulties encountered in

obtaining the requisite files from the defendant and An Bord Pleanála. He also averred that he was “conscious of the likelihood of the

Tribunal of Enquiry into Certain Planning Matters being in a position to deal with the matter”. It was therefore decided to await the

outcome of the Tribunal before advancing the proceedings further. Mr. Bresnan stated that it was the plaintiff’s “hope and

expectation” that the Tribunal would investigate the matter, and that the defendant had been aware from the time that the plenary

summons was issued that the plaintiff would be relying on that.

30. It was stated that the company did not become aware that the Tribunal would not carry out the hoped-for investigation until

receipt of a letter dated the 29th September 2010 to its solicitor. The registrar to the Tribunal confirmed on that date that the

Tribunal had considered the submission made by Mr. Bresnan and his wife and had decided not to investigate the matters raised as it

was satisfied that they were outside its terms of reference. A further letter, of the 5th October 2011, was also exhibited, in which

the solicitor to the Tribunal referred to correspondence sent personally by Mr. Bresnan and advised him that as the Tribunal’s inquiry

work had now ceased it would not be possible to investigate the matters referred to by him.

31. Mr. Bresnan deposed that on receipt of that letter it was apparent that no further assistance could be gleaned from the Tribunal.

32. There had then been a further change of solicitor. The new solicitor served a notice of intention to proceed in June 2011 and

replied to the notice for particulars.

33. The explanation given for the delay in the proceedings was as follows. During the first period (between 1987 and 1999) the

plaintiff had no knowledge of the torts affecting it until the Tribunal was set up. The delay between the issue of the plenary summons

and the statement of claim was due to “the complexity of the matter”. Thereafter, the plaintiff’s “genuine and realistic hope that its

lands would be included in the Tribunal’s terms of reference” constituted a justifiable reason for awaiting the workings of the Tribunal.

The plaintiff had sought to progress the proceedings after being advised in September 2010 that the matter of its lands would not be

investigated. It then waited a period of time in the belief that the final report of the Tribunal was imminent, but instructed the

solicitor to reply to the notice for particulars when it became clear that this was not so. Mr. Bresnan and his wife had been awarded

their costs in respect of their cooperation with the Tribunal.

34. The plaintiff took issue with the assertion by the defendant that it would be unfair to expect it to try to defeat allegations in

respect of matters that occurred 24 years earlier. It was pointed out that, since the inception of the Tribunal, the defendant had

been aware that the actions of its planning department would be the subject of intense scrutiny, and it was therefore incumbent on it

to maintain and preserve any relevant evidence. It was pointed out that in 1999 the plaintiff’s solicitor had written to the defendant

seeking documents, and asking to inspect files. The response had been that a large number of the documents concerned had already

been supplied to the Tribunal.

35. In conclusion Mr. Bresnan contended that while it might be argued that the delay had been inordinate, it was excusable by reason

of the company having a reasonable expectation that the Tribunal would assist its claim by carrying out investigations that would

have been beyond the power of any plaintiff. It was further excusable by reference to the nature of the claim – corruption of the

most serious kind; the difficulty of particularisation in such cases; the complexity of the case; the acquiescence of the defendant;

the absence of prejudice to the defendant; and the awareness of the defendant that the plaintiff was relying on the Tribunal.

36. In a replying affidavit the defendant’s senior solicitor, Ms. McEntee, deposed that in September 1998 the Tribunal had requested

the principal officer of the Planning Department, Mr. Scully, to attend a meeting with counsel for the Tribunal for the purpose of

having a “confidential discussion” about the company’s complaint, and to bring with him the original planning file and the subsequent

application made by Gannon Homes. According to the affidavit Mr. Scully had met with counsel on the 14th and 15th October 1998,

following which he was requested to obtain a report from the engineer in relation to what was described in the affidavit as

“drainage/sewage/sewerage in North Dublin”. A report was duly furnished. (In fact, the letter dated the 15th October thanks Mr.

Scully for his attendance on the 14th, acknowledges receipt of various files, and requests copies of the file in relation to the Clare

Manor application and also “the various technical, engineering and sewerage reports in respect of same”.) Ms. McEntee said that

there was no further communication from the Tribunal in relation to the matter.

37. It was denied that the defendant was aware that the plaintiff was awaiting the outcome of the Tribunal. No correspondence had

been received, after the notice for particulars in April 2004, until the notice of change of solicitor in June 2011.

38. Ms. McEntee referred to the history of the Tribunal and the fact that its terms of reference, despite having been expanded four

times (in 1998, 2002, 2003 and 2004), had never encompassed the company’s complaint. Neither the company’s planning application

nor that of Gannon Homes had been investigated. The Tribunal had concluded its public hearings in September 2008, but it appeared

that Mr. Bresnan had not inquired as to the status of his complaint until 2010. In the circumstances Ms. McEntee believed that it was

unnecessary and unreasonable to await the findings of the Tribunal, and the company was not entitled to “park” the proceedings for

such a lengthy period of time. She denied any acquiescence on the part of the defendant, which had sought to have the proceedings

dismissed in 2002 when it learned that the company had been struck off, and which believed that the case had been abandoned when

there was no response to the notice for particulars.

39. In accepting that the delay could be considered to be inordinate but arguing that it was excusable, the plaintiff referred to the

following facts and assertions to support its contention that it came within the scope of the decision of this Court in Comcast

International Holdings Incorporated and Ors. v. Minister for Public Enterprise and Ors. [2012] IESC 50:

(i) Mr. Bresnan had sought representation before the Tribunal;

(ii) The Tribunal had asked for details of his complaint and he had cooperated with it. The facts of the claim were

potentially being investigated at the same time as the proceedings were contemplated and then commenced;

(iii) The nature of the allegations was serious and rare, and the facts of such cases were by their nature complex

and very difficult to expose;

(iv) The plaintiff was not in a position to prosecute the claim in any wholly informed way until it was educated by

the investigative hearings of the Tribunal;

(v) During the period of time in issue the defendant had taken no active step to advance the case, was on notice

of the plaintiff’s approach and had acquiesced in the delay, notwithstanding the early application (in 2002) to have

the proceedings dismissed;

(vi) Both parties, to one degree or another, had been engaged in monitoring the Tribunal’s investigations;

(vii) Evidence would have been gathered by the Tribunal, which had the resources to investigate concealed and

covert wrongs;

(viii) The investigations of the Tribunal had exposed information, facts, documents and witnesses of assistance to

the plaintiff’s case.

40. It was also contended on behalf of the plaintiff that its allegations concerned activities that were known almost exclusively to the

defendant, which had taken part in a deceitful cover-up to prevent discovery of the true facts. Emphasis was placed on the previous

refusal of the High Court to dismiss the proceedings.

41. On the question as to where the balance of justice lay, the defendant concentrated on the difficulties it would face in a trial that

would depend heavily on oral evidence – the length of time since the events, the failure of the plaintiff to identify those individuals

alleged to have been corrupt, and the fact that one of the individuals named in the replies was deceased (as were two other senior

officers from the planning department), while other potential witnesses were retired and elderly.

42. The plaintiff relied, in this respect, on the letter of August 2011, with the reminder of the notice for particulars and consent to

late delivery of replies, as amounting to acquiescence. It criticised the defendant for not having progressed the matter itself. It

denied the claims of prejudice, on the basis that some witnesses would still be available to the defendant. It was contended that

there was a public interest in permitting the case to continue, given that it related to maladministration in public office.

The High Court judgment

43. Having set out the evidence and the submissions, the trial judge (Dunne J.) considered the applicable authorities. She referred to

the well-known principles deriving from the decisions in Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561 and Primor plc. v.

Stokes Kennedy Crowley [1996] 2 I.R. 459. The Court also noted the separate and partly overlapping jurisprudence deriving, in the

main, from the decisions in O’Domhnaill v. Merrick [1984] I.R. 151, Toal v. Duignan (No. 1) [1991] I.L.R.M. 135 and Toal v. Duignan

(No.2) I.L.R.M. 140.

44. The judgment notes that on such an application the court is involved in examining the conduct of proceedings, and thus the issue

of delay, from the date of the commencement of proceedings. This did not mean that pre-commencement delay was not of

relevance; its relevance deriving from the fact that the longer the delay before the commencement of proceedings, the greater the

necessity to ensure that the proceedings, once issued, are prosecuted expeditiously.

45. Extensive reference was made to the judgments in Comcast. In her analysis, Dunne J. found that the comparison drawn by the

plaintiff with the instant case was misconceived. In the first instance, she did not accept that the defendant had been put on notice

of the plaintiff’s approach in terms of the work of the Tribunal, no such communication having been made to it. The plaintiff had never

suggested that it would be unable to give particulars of the defendant’s wrongdoing until the conclusion of the Tribunal’s work.

46. Dealing with Mr. Bresnan’s interaction with the Tribunal, the trial judge accepted that the plaintiff might initially have been entitled

to hope that the complaint would be investigated. Further, it was the case that Mr. Bresnan had been awarded his costs for

cooperating with the Tribunal. However he had not been granted legal representation. The complaint had never been covered by the

Tribunal’s terms of reference and had not been investigated. It was difficult to understand how the “hope and expectation” of an

investigation could have been sustained with the passage of time or after, at the very latest, the conclusion of the public hearings in

September 2008, and also difficult to see what purpose there was in waiting for almost three further years before furnishing replies to

the notice for particulars.

47. In finding that the case did not come within the unique or exceptional circumstances described in Comcast, the trial judge

accepted that the allegations of corruption were of a most serious nature and that such claims were difficult to expose and to

particularise. However this did not justify the fact that no steps whatsoever had been taken in the proceedings between the delivery

of the notice for particulars in April 2004 and the furnishing of the notice of change of solicitor in June 2011. The last step taken by

the plaintiff had been the delivery of the statement of claim in 2001. The changes in legal representation and the necessity of the

application to restore the company to the register did not justify this inaction and lack of communication. It appeared, rather, that

the plaintiff had taken a unilateral decision to park the litigation.

48. Having regard to the foregoing, and with particular reference to the period of time taken to respond to the notice for particulars,

Dunne J. concluded that the delay was inordinate and inexcusable. She then moved on, in accordance with the authorities, to

consider the balance of justice.

49. On this aspect the trial judge took into consideration the question of prejudice to both parties. She observed that the prejudice

to the plaintiff, if its claim were to be dismissed, was obvious, but that the prejudice to the defendant in continuing the proceedings

was also clear to see. Three officials who might have been in a position to assist were deceased, while Mr. Redmond was unlikely to

give evidence on behalf of the defendant. The fact that the plaintiff’s claim was set out in broad, general terms, failing to identify

with any clarity the officials or employees who were alleged to have been bribed or corrupt, added another layer of difficulty for the

defendant. The passage of time had been so great that it was inevitable that the memories of any witness still available would

undoubtedly have faded.

50. The judge also considered the question whether there had been any conduct on the defendant’s part that might preclude the

Court from granting relief. She did not accept the criticism directed at the defendant for its failure to make an earlier application to

dismiss for want of prosecution, finding that this was a case of the sort where a defendant would be entitled to assume that the

matter had become dormant. There was nothing to suggest that the defendant should have been aware that the company was

awaiting the outcome of the Tribunal. She did not find that there had been any acquiescence in the delay, either generally or in

relation to the letter of August 2011. In conclusion the judge found that the balance of justice favoured the dismissal of the

proceedings given the inordinate and inexcusable delay since, at the very least, the receipt of the notice for particulars, and the

inevitable prejudice to the defendant caused by that delay.

51. In light of this conclusion, it was considered unnecessary to examine whether the proceedings should be dismissed on foot of the

inherent jurisdiction of the court in the interests of justice.

The appeal

52. In advance of the appeal hearing Mr. Bresnan swore a further affidavit exhibiting correspondence that he had had with the

Tribunal, the defendant and An Bord Pleanála between 1998 and 2011, for the purpose of supporting his contention that it was

reasonable for him to await the outcome of the Tribunal’s work. This was not new evidence, but rather evidence that he had not

previously considered would be relevant. He appears to believe that the trial judge made a finding that he had not communicated with

the Tribunal between 1998 and 2010. In fact she did not, although she noted the assertion of the defendant to this effect. In any

event no objection was taken to this material.

53. The correspondence does clarify certain matters. One is that having received the complaint from Mr. Bresnan, the Tribunal

declined his application for legal representation although it did seek documentation from him and a report from his architect. This

documentation was ultimately sent to the Tribunal on the 18th March 1998 and a request was made that Mr. Bresnan have the

opportunity to provide further explanations by way of giving oral evidence.

54. On the 15th October 1998 the Tribunal wrote to the solicitors requesting that the architect be contacted and the original planning

file obtained, as well as the architect’s file dealing with the subsequent appeal to An Bord Pleanála. On the same date the Tribunal

also wrote to Mr. Joseph Scully, a principal officer in Dublin Corporation, thanking him for coming into the Tribunal on the 14th October

1998 and acknowledging the receipt of documentation relating to the matter. On the 30th September 1998 the Tribunal wrote once

more to Mr. Scully requesting his attendance with further documentation in relation to the planning application by the plaintiff and the

later application by Gannon Homes.

55. On the 11th November 1998 the solicitors wrote to the Tribunal requesting the sum of £4,000 in respect of their costs relating to

dealings with the Tribunal. The Tribunal responded that costs would be dealt with when the Tribunal had concluded its work, and the

application would be reviewed at that stage.

56. On the 19th February 1999 the solicitors notified the Tribunal that the company’s former architect had retired but that he was

willing to verify that the documents contained in the file forwarded to the Tribunal by Mr. Bresnan were “true and accurate.” This was

acknowledged by the Tribunal.

57. In July 1999the company’s solicitor wrote to the City Manager informing him that the Tribunal had requested all documents in

relation to the land, and seeking copies thereof. In a response dated the 24th September, it was stated that a large number of files

were in the possession of the Tribunal since the 15th October 1998 but that any other files would be made available for inspection at

the public counter. It was also stated that there was no record of any motions to downgrade the land and that a trawl of the 1987

breviate of City Council meetings had not revealed any such motions.

58. On the 19th November 1999 the solicitor wrote to the Tribunal seeking to ascertain when his client would be called to the

Tribunal. It was noted that the applicant had been in touch with the defendant and was unable to find any record of the proposed

“downgrading” of the lands to agricultural from residential A.1 in 1987, and the subsequent retention of the residential A.1. status in

1990. It was, however, alleged that the applicant had “documentary evidence to vouch the proposed downgrading.” The Tribunal

responded, on the 17th February 2000that the Sole Member had not made any decision on whether to hear evidence, in public or

otherwise, concerning the applicant’s lands and that when he did so the applicant would be informed.

59. On the 28th March 2000 the solicitor once again wrote to the Tribunal. He stated that the lands in question abutted “the lands

the subject of the Tribunal’s inquiries”, and that his clients had evidence that was “crucial” to the full examination of the matter with

particular reference to the “downgrading” that had been “threatened” in respect of the land. They were most anxious to give this

evidence. The Tribunal was asked whether it would provide copies of documents referred to in a recent statement by counsel for the

Tribunal, and the subject of paragraph A2 of the terms of reference. This letter was acknowledged.

60. In late 2000, at the request of Mr. Bresnan, the Tribunal temporarily released his documents back to him.

61. On 4th April 2003 the company’s new solicitors wrote to the Tribunal informing it that they had taken over the file, and seeking

copies or inspection of the documentation given to it by the defendant relating to the matter. It was stated that this was essential

to the prosecution of the civil proceedings. This was followed up on the 11th August 2003 and the 9th January 2004 when the

solicitor referred to his client’s duty to prosecute the claim and said that access to the documentation was urgently required to

enable progress to be made. At the same time, a letter was written to the principal officer of the defendant’s Planning and

Development Department. The letter put the defendant on notice of the change of solicitor and asked for inspection facilities in

relation to the files in its possession.

62. On the 20th January 2004 the solicitor wrote again to the Planning Department enquiring about the proposed rezoning of the lands

in the 1987 Draft Development plan. It was suggested that the proposal to rezone, and its rationale, must have been considered by

the administrative staff. The solicitor therefore sought inspection of the files relating to such consideration. He also requested

information as to the decision to retain the residential zoning, and any record relating to representations made by citizens or

interested parties, as well as the possibility of inspecting any files relating to the matter.

63. On the same date the solicitor once more wrote to the Tribunal requesting inspection facilities and clarification as to whether the

Tribunal’s request for information on the 5th February 1998 was ever substantively responded to. On the 29th January 2004 the

Tribunal informed him that copies of the documentation furnished to it had been returned to Dublin City Council and that any queries

in respect of those files should thus be directed there.

64. On 27th April 2004 the solicitors wrote to An Bord Pleanála stating that they urgently needed to inspect the file dealing with its

decision of the 4th November 1987. By way of a phone call, the Board informed them that it could not locate the file but could

provide a copy of the decision. The solicitor said that this “might be helpful” but requested an explanation for the whereabouts of the

file. Ultimately on the 15th August 2004 a fax was sent by An Bord Pleanála noting that the file had been requested from the archives

but had not yet been returned.

65. On the 27th June 2006 An Bord Pleanála sent Mr. Bresnan a copy of the inspector’s report, which included details of the oral

hearing of the appeal.

66. On the 17th September 2010 the firm of solicitors then retained by the company wrote to the Tribunal. It was stated that they

understood that the Tribunal had completed its enquiries without reference to the lands with which they were concerned. The

Tribunal was asked to confirm whether that was so, and to advise on how to make an application for costs. On the 29th September

2010 the Tribunal responded confirming that it considered Mr. and Mrs. Bresnan’s submission and had decided not to investigate the

matters raised, as it was satisfied that they were outside its terms of reference. The files would be returned subsequent to the

publication of its Final Report, and costs would be determined at that juncture.

67. On 5th October 2011 the Tribunal wrote to Mr Bresnan personally, acknowledging receipt of correspondence from him. It informed

him that as the Tribunal’s inquiry work had ceased, the allegations made out in the correspondence would not be investigated by the

Tribunal.

68. By order of the 5th June 2012Mr. Bresnan was awarded the costs of assisting the Tribunal in its private investigative inquiries.

Submissions in the appeal

69. The plaintiff submits that its delay in commencing the proceedings was excusable because it did not know, until the establishment

of the Tribunal, that corruption was widespread in the planning process. It argues that, in any event, pre-commencement delay is not

to be taken into account for the purposes of an application such as this.

70. Counsel for the plaintiff submits that the defendant’s complaint as to uncertainty about the nature of the claim is unfounded, in

circumstances where it engaged with the Tribunal for two days (according to the affidavit of Ms. McEntee) and therefore knew what

the Tribunal had investigated and what information was available. It had had to marshal its witnesses and documentation for the

Tribunal process. If it had been able to satisfy the Tribunal, it should not be concerned about defending the case. It is noted that

there was no mention of the defendant’s interaction with the Tribunal in the affidavit grounding this motion, and that no detail had

been given as to what transpired.

71. The defendant had never filed a defence, had not denied liability on affidavit and had made no comment on the findings of

corruption. In the circumstances, counsel says that it cannot show prejudice. A party, it is said, may not rely on the loss of potential

witnesses without giving some indication of what their evidence would have been. The defendant’s contention that this is not a case

that can be determined on the documentation is disputed, on the basis that the dealings between the relevant parties were largely

conducted and recorded in writing. The processes leading to the allegedly corrupt decisions were documented, and inferences could

be drawn from those documents. The plaintiff intends, it is said, to adduce evidence as to the incidence of planning corruption at the

time, which would “powerfully” support inferences of corruption.

72. Counsel points to the letter of the 17th August 2011, in which the defendant’s solicitor had indicated consent to delivery of the

late replies, as “de facto” acquiescence in the delay. The defendant had never attempted in the meantime to repeat the application

to dismiss the proceedings that had been made in 2002, and had not identified any date by which it was entitled to assume that the

case was over.

73. The plaintiff continues to rely on the decision in Comcast and draws a number of parallels with that case. It is submitted that it is

of relevance that the defendant in the proceedings is the State (or, rather, a statutory body with responsibility as a planning

authority), and that a Tribunal was set up by the State to investigate concealed corruption in the planning process. The terms of

reference were expanded several times, so it was always possible that they could be expanded to include the company’s lands. Mr.

Bresnan had maintained a belief that the Tribunal would and should investigate, and in fact it did, albeit in private. It had told him

that it would “undoubtedly” be necessary to interview him. He had continued to engage with it up until 2010. The Tribunal had not

previously informed him of its decision not to take the matter further. The notification that the Tribunal would retain the

documentation until publication of the final report gave him reason to believe that there was still some hope.

74. It is submitted that the factors identified in the judgments in Comcast are also present here. Counsel disputes the view of the

trial judge that “little of evidential value” had emerged from the Tribunal in this case, arguing that the Tribunal’s finding of endemic

and systemic corruption will be of assistance. In the alternative it is argued that the plaintiff could not know what the Tribunal’s

findings would be. If it was entitled to await the outcome, then it could not become disentitled because the outcome did not favour

it. It is submitted that the trial judge failed to appreciate that the plaintiff was awaiting that outcome, and that the Tribunal had

retained its files.

75. Counsel contends that a litigant who takes this approach to litigation is not obliged to give the other party express notice, and

that the trial judge did not place sufficient weight on the evidence of implicit notice such as the letter looking for documentation in

July 1999 (paragraph 57 above), with its reference to the Tribunal request.

76. In dealing with the considerations arising in an assessment of the balance of justice, counsel for the plaintiff complains that the

trial judge took into account matters that were not cognisable under the Primor criteria, such as the perceived failure of the company

to set out sufficient particulars of its claim of fraud, while failing to give sufficient weight to the inaction on the part of the defendant

and its “de facto” acquiescence.

77. It is submitted that the potential prejudice to the plaintiff in dismissing its claim is clear and far-reaching and that the trial judge

failed to consider the draconian nature of the relief sought, and the principle that an action should not be struck out as a form of

punishment to a dilatory plaintiff, but only with a view to ensuring that more complete justice is done.

78. Counsel for the defendant submits that the totality of delay identified is such that it will no longer be possible to have a fair trial

of the action due to the lack of specificity in the pleadings; the impact of that lack of specificity on the ability of the defendant to

defend the proceedings; the death of two parties named by the plaintiff as having an involvement in the actual events the subject

matter of the proceedings; the difficulties of proof including problems specifically arising from the non-availability through death,

retirement, age and/or ill-health of persons working within the Planning Department of the defendant in 1987; and the effect of the

lapse of time on the memories of potential witnesses.

79. It is submitted that the case is entirely distinguishable from Comcast. There was no evidence supporting the contention that the

plaintiff notified the defendant of its decision to await the outcome of the Tribunal.

80. It is submitted that the respondent could not have been considered implicitly on notice by the letters of the 21st October 1994

and 5th July 1999. It is noted that both letters were sent to the defendant before proceedings were ever issued – the letter of

October 1994 also predates the resolution on the Oireachtas establishing the Tribunal in 1997 while the letter of July 1999 does no

more than indicate that the Tribunal had requested the plaintiff to supply it with certain files.

81. In considering where the balance of justice lies, it is submitted that in addition to the non-exhaustive list of factors set out by

Hamilton C.J. in Primor, the Court must be conscious of the evolving jurisprudence on the obligation placed on the Court by Article 6

of the European Court of Human Rights Act 2003 to hear cases within a reasonable time. The Court has been referred to the

judgments of Clarke J. in Stephens v. Paul Flynn Ltd [2005] IEHC 148 and Rodenhuis & Verloop BV v. HDS Energy Ltd. [2011] 1 I.R.

611 and of Irvine J. in Colm Granahan t/a C G Roofing and General Builders & Anor. [2015] IECA 58. It is submitted that the primary

responsibility for progressing the claim rests with the plaintiff and it is not relieved of that burden because the defendant did not take

steps to advance the case or have it struck out at an earlier time. Counsel notes that a number of decisions indicate that little

weight should be given to any alleged inactivity on the part of the plaintiff when determining where the balance of justice lies; the

Court is referred to McGarry v. Minister for Defence &Ors. [2016] IESC 5 and Millerick v. Minister for Finance [2016] IECA 206 in this

regard.

Discussion

82. In my view the answer to the first issue to be determined by the Court is clear – the delay in this case was inordinate. The trial

judge correctly relied upon the authority to the effect that where there has been significant pre-commencement delay, it is

particularly incumbent upon the plaintiff to progress the matter with expedition, and this manifestly was not done.

83. The second issue is whether the delay was excusable. This aspect, in the circumstances of this case, comes down to the

question whether it was reasonable for the plaintiff to anticipate that the Tribunal would investigate the complaint and/or to await

the outcome of the Tribunal’s final report.

84. On the facts as revealed in the correspondence, I would accept that the plaintiff had some reason to hope, for some period of

time, that there might be an investigation. The Tribunal had told him in 1998 that it would “undoubtedly” be necessary to interview

him. In 2000 he was told that the Sole Member had yet to decide whether or not to investigate the matter, and that he would be

informed when the decision was made.

85. However, two significant events took place in 2004. The first was that in January of that year the Tribunal told the plaintiff’s

solicitor that it had released the relevant files back to the defendant. The second was the amendment of the Tribunal’s terms of

reference. In its fourth interim report (a matter of public record), the Tribunal chairman had informed the Oireachtas of the extent of

its workload and its likely duration. The report noted that the Tribunal was continuing to receive allegations of wrongdoing. The

Houses of the Oireachtas resolved to set limits on the scope of future investigations of the Tribunal. By resolution passed on the 3rd

December 2004 the Tribunal was authorised to continue its examination of a number of specified matters. It was also empowered to

investigate additional matters, provided that it made and notified a decision to do so by a particular date.

86. In Fitzwilton Limited v Mahon [2008] 1 I.R. 712 (judgments delivered on the 4th July 2007) this Court confirmed that the effect of

this amendment was that the Tribunal had no jurisdiction to investigate any additional matters in respect of which it had not fulfilled

the required steps by the specified date.

87. The resolution of the Houses was, of course, a matter of public record as were any decisions taken and notified by the Tribunal

on foot of it. In the circumstances I am of the opinion that any belief held by the plaintiff as to the possibility that the Tribunal would

investigate its complaint could not be considered to have been reasonable after that date. If I am wrong in that, the matter was put

beyond question when the Tribunal finished its public sittings in September 2008, but it was to be another three years before the

plaintiff answered the replies to particulars.

88. I consider that the reliance of the plaintiff on the judgments of this Court in Comcast is significantly misplaced. The facts in that

case, in so far as they are relevant, were that the Moriarty Tribunal announced in May 2001 that it intended to investigate the award

of the mobile phone licence, and the plaintiffs (unsuccessful bidders for the licence) commenced their proceedings the following

month. The plaintiffs knew, therefore, that there would be public hearings into the questions of concern to them. They delayed in

formulating their statements of claim, because they were acquiring information from the Tribunal process.

89. It seems necessary to stress this latter aspect – the plaintiffs in Comcast knew that they would not be able to use the findings

of the Tribunal in the trial of their action, since the findings would not be admissible in evidence. What was helpful to them was the

evidence gathered by virtue of the Tribunal’s investigative powers and adduced in the public hearings, that enabled them to acquire

information as to what evidence could be available from various sources.

90. In contrast, the plaintiff in the instant case appears to have believed that it could rely upon the findings of the Tribunal in relation

to planning corruption. How such findings could be of evidential use has not been explained – on the face of it, they could not be

utilised in any fashion. No other specific additional assistance to be gained from the Tribunal process has been pointed out.

91. In the circumstances, I would hold that the delay was inexcusable.

92. In considering the balance of justice, the Court must, pursuant to the Primor criteria, examine the conduct of the defendant. It is

certainly the case that the defendant in this case could have taken a more vigorous approach to the matter. Its application to

dismiss the proceedings in 2002 cannot be counted in its favour, since it appears to have been improperly made and was not

repeated. However it was not under any particular obligation, in my view, to motion the plaintiff for the replies to particulars and it

seems to me that the plaintiff, having made a decision not to reply without informing the defendant of that decision, is not entitled to

complain in this regard.

93. The most significant feature in the plaintiff’s favour, in making this particular assessment, is the letter of August 2011 consenting

to late delivery of particulars. The plaintiff says that this amounts to acquiescence, and points to the discussion of a similar letter

from the State defendants in Comcast. In that case the solicitor had extended consent to late filing of a statement of claim. The

statement of claim was served within the time stipulated but the motion to dismiss was then issued. The approach taken to this

matter varied as amongst the members of the Court, although it is true that McKechnie J. would have held that the behaviour of the

State defendants amounted to an abuse of process. However, McKechnie J. also stressed that the factors to be taken into account

under the Primor criteria were non-exhaustive, and that the relevance of any specific factor could vary according to the specific

facts of the case. In this case, I would be disinclined to accept the explanation proffered by counsel for the defendant to the effect

that this was simply a pro forma letter. Correspondence from solicitors is supposed to mean what it says.

94. However, in the circumstances of the case, it seems to me that the overriding factor to be taken into account is the sheer

unlikelihood that a fair trial could be held after a lapse of time of this magnitude. Quite apart from the matters relied upon by the

defendant, it seems to me that the plaintiff has underestimated its own evidential difficulties. This may in part be due to the mistaken

view that it could rely upon the findings of the Tribunal, but there is also the fact that it has failed to take account of the necessity,

were it to be successful, to adduce evidence in relation to the decision of An Bord Pleanála. The assumption that general evidence of

corruption in the planning process at local authority level could in itself give rise to an inference that a refusal of permission in a

particular case was motivated by corruption, irrespective of the reasons given, would be questionable enough. The belief that such an

inference would be sufficient despite the existence of a decision of the Board, never challenged at the time as being irrational or as

being flawed in any other way, is simply misconceived. This is not a case in which the extant documentation could deal with these

issues.

95. In the circumstances I would hold that the delay in the case has been inordinate and inexcusable, and that the balance of justice

favours the dismissal of the proceedings. I would therefore dismiss the appeal.