Supreme Court dismisses appeal against strike-out of negligence claim against Dublin City Council for lack of arguable case.

THE SUPREME COURT

[Supreme Court No. 168/2012]

[Court of Appeal No. 2014/000435]

[High Court Record No. 2009/11765P]

MacMenamin J.

Dunne J.

Peart J.

BETWEEN/

KEVIN TRACEY AND KAREN TRACEY

PLAINTIFFS/APPELLANTS

AND

IRELAND AND THE ATTORNEY GENERAL AND

DUBLIN CITY COUNCIL

DEFENDANTS/RESPONDENTS

Judgment of Mr. Justice John MacMenamin dated the 30th day of July, 2019

1. This is an appeal against orders made by the High Court, O’Neill J., striking out the proceedings brought by the appellants, Kevin

and Karen Tracey. This judgment is delivered on the same day as other judgments concerning appeals brought by the appellant, Kevin

Tracey, which were heard by this Court on the 20th and 21st June, 2019. Four of those judgments concern defamation proceedings.

This judgment does not, and concerns, rather, proceedings brought by the appellant and his wife, Karen Tracey, against Ireland, the

Attorney General and Dublin City Council.

2. When the motions to strike out these proceedings were heard by the High Court, O’Neill J., on the 26th March, 2012, there was no

appearance from either of the appellants. O’Neill J. held under O.19, r.28, that the appellants’ action disclosed no reasonable cause of

action against any of those respondents, and dismissed the proceedings. The judgment delivered in the case of Kevin Tracey v. Irish

Times & Others today (Appeal No. 454/2011) sets out some general considerations applicable to these appeals, but each case must

be considered on their individual facts. While the Irish Times judgment may serve as a point of reference, it must be borne in mind

that the proceedings, and circumstances in this case, are entirely different in form and substance.

3. The instant proceedings were initiated on the 23rd December, 2009. The appellants, inter alia, claimed damages for negligence and

breach of duty against the respondents arising from matters described in a judgment delivered by this Court in White v. Dublin City

Council [2004] 1 IR 545. Five years then elapsed until the appellant brought this case. There is no explanation as to why this claim

was not brought any sooner. For the reasons set out in this judgment, it is unnecessary to consider whether the claim is statute

barred or should otherwise be dismissed for delay.

White v. Dublin City Council [2004] 1 I.R. 545

4. The starting point for consideration must be this Court’s judgment in White v. Dublin City Council. The headnote in the Irish Reports

sets out:

“Section 82(3B)(a) of the Local Government (Planning and Development) Act 1963 provides inter alia that “an application

for leave to apply for judicial review under [Order 84 of the Rules of the Superior Courts] in respect of a decision [of a

planning authority on an application for planning permission on a decision of An Bord Pleanála on any appeal or reference]

shall

(i) Be made within the period of two months commencing on the date on which the decision is granted.”

5. As set out in the Report in White, the notice party, that is Mr. Tracey alone, made two applications for planning permission to

Dublin City Council to build a house. Both applications were advertised in accordance with the provisions of the Planning Acts. The

applicants (Maud White and her husband, Judge Michael White), who occupied the adjoining property, were aware of both such

applications, and were satisfied, on the basis of the plans grounding the first application that their property would not be overlooked

by the proposed development. The first application having been unsuccessful, Dublin City Council assisted Mr. Tracey in altering a

second application to facilitate a grant of planning permission. One result of the alterations to the plans was that the development

would overlook the applicants’ property. Despite this, Dublin City Council did not exercise its discretion under Regulation 17 of the

Local Government (Planning and Development) Regulations 1994 to require Mr. Tracey to advertise modified plans. Accordingly, the

applicants in White, and their family, were unaware that their property would be overlooked by the development, and had not

opportunity to object to the second application on that basis. The applicants therefore sought judicial review of the decision to grant

planning permission. Their application was brought after the expiry of the two-month time limit provided for in s.82(3B)(a)(i) of the

Act of 1963 because they were unaware of the facts giving rise to their claim until after that period had elapsed. They also sought a

declaration that the statutory time provision was unconstitutional. The High Court (O’Caoimh J.) granted the relief sought quashing

the decision of Dublin City Council to grant planning permission and declared s.82(3B)(a)(i) of the Act of 1963 to be unconstitutional.

The High Court also certified that the case involved a point of law of exceptional public importance and that it was desirable in the

public interest that an appeal should be taken to the Supreme Court. Dublin City Council and Mr. Tracey appealed.

6. This Court, (Denham, Murray, McGuinness, Fennelly and McCracken JJ.), dismissed the appeal, holding that although it might be

more convenient for the court to consider the constitutional issue first in the absence of overriding conditions requiring a departure

from the normal rule in the interests of justice, the constitutionality of s.82(3B)(a)(i) could only be considered if the applicants could

first show that their claim would succeed. In so concluding, this Court referred to Brady v. Donegal County Council [1989] ILRM 282,

and McDaid v. Judge Sheehy [1991] 1 IR 1. This Court concluded that Dublin City Council’s failure to require the notice party to

advertise the modified plans was irrational and unreasonable in that it did not take account of the likelihood that members of the

public might wish to object. (The State (Keegan) v. Stardust Compensation Tribunal [1986] IR 642; O’Keeffe v. An Bord Pleanála

[1993] 1 IR 39). This Court then considered the question of the constitutionality of the section. In finding the section unconstitutional

and dismissing the appeal, this Court held that, in laying down a limitation period, the legislature had to balance a plaintiff’s right of

access to the Courts against a defendant’s right to protection against unjust or burdensome claims and the public interest in the

avoidance of stale claims. This Court held that, in adjudicating on the constitutionality of such a provision, it could not substitute its

own view on the appropriate balance for that of the legislature, but must determine from an objective stance whether the balance in

the legislation was so contrary to reason and fairness as to constitute an unjust attack on the individual’s constitutional rights (Tuohy

v. Courtney [1994] 3 IR 1]. This Court went on to hold that special considerations applied in relation to the limitation of actions in

planning law. It was in the public interest, as well as in the interests of a successful applicant for planning permission, to dispel

uncertainty about development at the earliest possible date. Applicants for development and planning authorities were also entitled to

early notice of any challenge to the validity of a planning decision to facilitate an adjournment of any appeal so as to limit

unnecessary costs. (Cavern Systems Dublin Limited v. Clontarf Residents Association [1984] ILRM 24; KSK Enterprises Limited v. An

Bord Pleanála [1994] 2 IR 128). This Court held that the absolute time limit in the section undermined or compromised the substantive

constitutional right of access to the courts, and had the effect of depriving the applicants of an opportunity to challenge the

impugned decision for reasons outside their control, but which related to the unlawful act of Dublin City Council. Thus, while it was a

relevant consideration that the legislature had seen fit to re-enact an absolute time limit as contained in the Local Government

(Planning & Development) Act, 1992, it was equally relevant to consider as a useful and relevant indicator of what may be considered

fair and just in such an enactment, that the Planning and Development Act, 2000, provided for an extension of the limitation period in

certain circumstances.

7. Mr. Rose was the Dublin City Council planning official concerned with the application. On his role, Fennelly J. observed in his

judgment:

“I do not say that the first respondent’s decision was irrational in the broad sense. Mr Rose’s planning expertise is

undoubted. I consider rather that Mr Rose on behalf of the first respondent, excluded from his consideration the

likelihood that the applicants would want to object and that, if they did, the first respondent would have had to consider

the objection. This was, no doubt, an understandable oversight on the part of a person exercising an expert

planning function. Nonetheless, I am satisfied, given the very particular circumstances of this case, that he did not

give proper consideration to the radical effect of the required modifications. In that sense, it was unreasonable and

irrational. The first respondent created a dilemma for itself by requiring modifications in order to differentiate a second

application sufficiently to justify a departure from the decision to refuse, but which would be, nonetheless not

sufficiently different to warrant a new public notice. This is a very fine line to thread. This factor is special to this

case. It would not arise in every case of a regulation 35 modification …” (Emphasis added)

The emphasised words are now particularly relevant to the application brought by these respondents, as will be seen. (See, generally,

the Irish Reports [2004] I.R. 545, et.seq.)

The Proceedings

8. The proceedings make claims against Ireland, and the Attorney General (the State respondents), and Dublin City Council. The claim

against the State respondents is based on the propositions that the appellants had a constitutional right to build a house, for which

planning permission had been granted, and that the State was legally vicariously liable for the actions of Dublin City Council. Mr. and

Mrs. Tracey claim that they were “badly treated” by Dublin City Council.

9. The proceedings were not served on the State defendants until the 23rd December 2010. An appearance was entered, and

thereafter a statement of claim was filed on the 28th February 2011. The uncontroverted evidence is that the appellant was ill,

required hospitalisation in July 2010, and was, therefore, temporarily unable to continue the progress of this case and other actions in

which he was involved through the courts. As a result, he was not in attendance when O’Neill J. made the order under appeal.

10. The appellants say that they suffered significant substantial losses amounting to €1,750,000 damages. They claim damages for

negligence, nuisance, loss of equity, in particular, gross misconduct on the part of Dublin City Council, loss and inconvenience, severe

mental distress, acute and continuous disruption, serious interference with their home and family lives, violations of the principles of

natural justice and to their constitutional and ECHR rights.

The Motion to Dismiss the Proceedings: The State Respondents

11. All the respondents brought motions to dismiss the proceedings as disclosing no reasonable cause of action. In advance of the

motions being heard on the return date of the 24th October, 2011, the second named appellant, Karen Tracey, intimated through

correspondence, that her husband was not in a position to prosecute the case, and requested that, in the interests of fair procedure,

the matter be adjourned until her husband, a litigant in person, was able to proceed. It should be noted, of course, that Ms. Tracey,

as much as her husband was a party to these proceedings. Mr. Tracey has informed this Court that, at all material times, he was

acting on behalf of Mrs. Tracey. But all parties to a case hold duties to the Court, not just one party.

12. On the first return date, O’Neill J. ordered that Kevin Tracey deliver to the Principal Registrar of the High Court by the 30th

November 2011, a report from the doctors treating him disclosing the nature and extent of the illnesses, and indicating when he was

likely to attend court. The motions were adjourned to the 16th January 2012.

13. By letter dated the 29th November 2011, Mrs. Tracey furnished two reports to the Court. The first, by Dr. Michelle Fahey GP,

stated that Mr. Tracey had become unwell in July 2010, requiring almost two months hospitalisation, and described his medical

symptoms which, the report stated, prevented him from carrying out his normal day-to-day activities and work. It stated that Mr.

Tracey was receiving ongoing treatment for his disability at the Eye & Ear Hospital, and was also attending at the neurology clinic at

Beaumont Hospital, and was due for review in February, 2012. Dr. Fahey stated that Mr. Tracey remained unfit for work in any

capacity until after that time. There was also a report from Dr. Douglas Duffy, a senior physiotherapist at the Eye & Ear Hospital,

which also outlined his symptoms.

14. On the 16th January 2012, the matters again came before O’Neill J. The court adjourned the motions and ordered that, if the

appellants were to request a further adjournment on or before the 19th March 2012, they were to deliver to the principal registrar of

the High Court a report from the doctors treating Mr. Tracey disclosing (i) the nature and extent of his illness, and (ii) when he was

likely to be fit to attend court. The motion was then adjourned to the 26th March 2012.

15. By letter dated the 14th March 2012, Ms. Tracey requested on the basis of what was said to be “on the basis of appended

medical evidence in the interests of fair procedures” that an adjournment be granted until Mr. Tracey was fully recovered, and in a

position to attend. A further report from Dr. Fahey repeated the content of the earlier report, as did a further report from Dr. Douglas

Duffy. The reports indicated that Mr. Tracey would be reviewed in six months’ time.

16. When the matter yet again came before O’Neill J. on the 26th March 2012, there was no appearance whatever. O’Neill J.

determined that it was appropriate to proceed. The court ordered that the action against the respondents be dismissed on the

grounds that the appellants’ claim disclosed no reasonable cause of action. The appellants were ordered to pay the respondents the

costs of the motions when taxed and ascertained.

The Issues

17. Two issues now arise. The first of these is whether the learned High Court judge was correct to hear and determine the

respondents’ motions to dismiss on the 26th March 2012? The second question is whether the appellants, having restricted their

submissions to the decision of O’Neill J. to proceed and determine the matters, this Court should determine the issue as to whether

the statement of claim does actually disclose a cause of action against the respondents.

The decision of the High Court to hear and determine the State Respondents’ motions

18. Counsel for the State respondents, Mr. Callanan, S.C., for Dublin City Council, Mr. Bradley, S.C., relied on the same authorities on

the adjournment issue. They referred this Court to Kildare County Council v. Gerard Reid [2018] IECA 370. Speaking for the Court of

Appeal in Reid, Peart J. emphasised that the decision whether or not to accede to an application for an adjournment is always a

matter of discretion by the trial judge. He pointed out that, as such, there was a wide margin of appreciation to be allowed to a judge

as to what decision should be made. Thus, on an appeal from that decision, the central question is whether, in all the circumstances,

the trial judge acted fairly having regard to the interests of all the parties and not simply the party seeking the adjournment. He

observed that an appeal court should be slow to interfere with the manner in which the discretion was exercised, and should only do

so where there is a clear error. In Reid, the trial judge had determined that the appellant did not suffer from a disability of such a

nature that he could not engage with the legal process and look after his affairs. The court noted the appellant was well able to

understand and swear affidavits, and there had been no suggestion to the contrary. Furthermore, in determining the medical evidence

was such that it fell short of being adequate to justify an adjournment, the court stated that no indication had been given as to what

time period was needed so as to enable the appellant to recover to the point of being able to once again deal with the matters.

19. The judgment in Reid, therefore, concerns a situation somewhat different from that facing O’Neill J. in the instant case. In both

cases, but to varying degrees, the medical evidence fell short of what was required. But, in Reid, the trial judge made a series of

factual findings as to the plaintiff’s ability to conduct the litigation. Reid did not concern a situation where there was uncontroverted

evidence that a litigant was ill and unable to attend court, or to conduct litigation.

20. This Court was also referred to Tracey v. McDowell [2016] IESC 44, where this Court set aside the decision of the High Court to

strike out proceedings involving Kevin and Karen Tracey, on the basis of Mr. Tracey’s illness, which first manifested itself in July 2010.

But that case concerned an application to dismiss for want of prosecution arising from delay caused by Mr. Tracey’s illness, as

opposed to an application to strike out proceedings for failing to disclose a reasonable cause of action. Counsel point out, correctly,

that while there is some degree of factual overlap between the two Tracey cases, the decision of the High Court in Tracey was in

rather different circumstances to those which apply here. Counsel for each of the respondents submit that in this case, the court

should not only consider non-attendance, but look to the substance of the case which is pleaded. Counsel submits that this appeal

differs from Tracey v. McDowell, in that here, there was a motion to dismiss for disclosing no cause of action, and unlike Tracey v.

McDowell, the issue was not confined to delay, or steps not being taken to progress the proceedings.

21. While it is true that there are distinctions, there are also resemblances on the non-attendance issue. These are described in

Tracey v. Irish Times, cited earlier. But the question is whether the High Court was, ultimately, correct in making its order to dismiss

the case. I have no doubt that, in this process, the Court is entitled to consider the merits of the case, and whether the case is

arguable, or must be dismissed as being inevitably doomed to failure. So, too, is this Court.

22. I would emphasise that this appeal is decided only on the arguments advanced by counsel for the moving parties and by Mr.

Tracey acting for himself. A court may seek to assist a personal litigant, but there are limits to the extent to which a court will

descend into the arena. Mr. Tracey is experienced in court procedure.

The Rules and Inherent Jurisdiction

23. As a point of reference, it is useful to draw attention to the distinction between the jurisdiction of the court to strike out or

dismiss the proceedings pursuant to Order19, Rule 28 and, on the other hand, to make a similar order pursuant to the inherent

jurisdiction of the Court. Order 19, Rule 28 provides that a court may order a pleading to be struck out on the grounds that it

discloses no reasonable cause of action, and in any case where the action is shown by the pleadings to be frivolous and vexatious.

The rule applies to a pleading such as a statement of claim, and not part of a pleading.

24. However, different considerations apply in determining whether a case may be dismissed pursuant to the inherent jurisdiction of

the Court. Here a court may make a somewhat broader enquiry. The distinction between the two types of application is that, an

application under the Rules is designed to deal with a case where, as pleaded, and assuming that the facts however unlikely that they

might appear, or as asserted, the case is nonetheless vexatious. As Costello J. pointed out in Barry v. Buckley [1981] 1 I.R. 306, the

reason why an inherent jurisdiction exists side-by-side with that under the Rules, is to prevent an abuse of process which would arise

if proceedings are brought which are bound to fail, even though these are facts asserted which, if true, might give rise to a cause of

action.

25. In a situation such as this the duty of a court of first instance is two-fold: first, to consider the circumstances of the non-

attendance and, second, to consider the merits of the application. (c.f. Tracey v. Irish Times & Anor., cited earlier, a judgment of

this Court delivered today). The first consideration is non-attendance. The circumstances here are not markedly dissimilar to those in

Tracey v. McDowell [2016] IESC 44, and therefore are not, in themselves, fatal to the appellant’s case. The key question is,

therefore, whether it can be contended, to the level of arguability that the judgment of O’Neill J., applying Order 19, Rule 28, was

incorrect.

The State Respondents

26. The first difficulty which the appellants face in this appeal is that they have not identified in submissions how any real cause of

action can be maintained against the State respondents, arising from, or in relation to, the planning permission granted to them by

Dublin City Council. The appellants claim financial damage following the quashing of what they contend was a “full legal planning

permission”. But the basis of the claim is that they had a constitutional right to construct the new house with planning permission.

But as the planning permission was declared invalid, they held no such constitutional right. The State cannot, in these circumstances,

be legally responsible for the actions of Dublin City Council, which is a separate legal entity. A consideration of the statement of claim

shows that, in fact, no other substantive allegation is made against the State respondents. In the circumstances, it is insufficient to

base a claim on mere assertion without more.

27. The appellants had no constitutional right to build a house with an invalid planning permission. The appellants have not shown

there was a vicarious duty of care on the part of the State respondents in the circumstances of this case. If there was such an

argument by way of case law or distinction from that case law, it was for the appellants to make it.

28. Order 58, r.29 of the Rules of the Superior Courts provides that, on appeal, this Court may exercise or perform all of the powers

and duties of the court below, may give any judgment, and make any order which ought to have been made in the High Court, and

make any further or other order as the case requires. The appellants have been permitted to advance such submissions they wished

in this Court on the appeal. Had they advanced an arguable case that O’Neill J. was incorrect as to the State respondents’ liability,

then this Court would have considered the appeal, and possibly remitted the matter back to the High Court, as in Irish Times. But, in

fact, no such argument has been advanced. So far as the State respondents are concerned, the appeal cannot succeed.

Dublin City Council

29. Dublin City Council’s motion to strike out was issued on the 3rd day of October, 2011. It was grounded on an affidavit by Terence

O’Keeffe, Law Agent to the Dublin City Council. Mr. O’Keeffe deposed that, at no point prior to 22nd December, 2010, had the

appellants communicated any of the allegations now made in these proceedings to the City Council, despite the fact that the factual

basis of the case – as opposed to the 2004 judgment of this Court, in fact, dated back to the year 2000. Mr. O’Keeffe also deposed

that, at no time subsequent to the Supreme Court decision, did the appellants lodge any further planning permission, despite the fact

that they could have done so. Mr. Bradley, S.C. submits that the appellants have no cause of action against the City Council. He

refers to many other actions brought by the appellant, or his wife, said to have been struck-out by the courts.

30. Mr. Bradley, S.C. submits that his client owed no duty of care to the appellants in the exercise of their functions under the 1963

Local Government & Planning Act, as amended. He contends that the appellants have not been able to identify any legal relationship

or nexus between themselves and the Council which created a duty of care arising from the Council’s public duty under statute. He

submits that the appellants have completely failed to establish any basis for a claim in negligence against the planning authority.

Rather, the error of the planning official was, as Fennelly J. observed, an “understandable oversight on the part of a person

exercising an expert planning function”, and was corrected by way of an application for judicial review. He submits an error of this

type is not a sufficient basis for now grounding a negligence claim against Dublin City Council. What was engaged in here was, rather,

a bona fide exercise of a statutory function. Counsel referred the Court to comments to the same effect by Finlay C.J. in Pine Valley

Developments Limited v. Minister for Environment [1987] I.R. 23, at page 35).

31. When parties, including litigants in person, initiate proceedings, they assume the same duties as all other litigants. Here the

appellants now seek to make a contention, at this very late stage, that the City Council seriously misled the High Court in the hearing

on important facts. But the appellants were fully legally represented in the judicial review in the High Court, and on the appeal of the

judicial review in this Court. If there was any question of the court being “misled”, that was the time to raise the question, and not

now, more than 15 years later. Seen against what this Court observed in White, it is not sufficient for the appellants now to make a

bald assertion, in these separate proceedings, that Dublin City Council was negligent in its conduct. (Henderson v. Henderson [ 1843]

67 ER 313).

32. But, while on its own, this might not be sufficient, counsel also submits that it is clear on authority that the City Council does not

owe a duty of care in the circumstances of this case. Counsel refers to Convery v. Dublin County Council [1996] 3 I.R. 153, at 174,

per Keane J. In Convery, Keane J. pointed out that, while the exercise of powers and duties by the City Council may be regulated, by

means of judicial review, to ensure that they are exercised in accordance law. Counsel submits the appellants do not, and did not,

belong to any category of persons to whom the Council, in the exercise of those powers, could owe a duty of care at common law.

He contends the duties of County Councils, or public authorities, have been considered in a number of other judgments of this Court

(See Sunderland v. Louth County Council [1990] ILRM 658; and most recently Cromane Foods Limited v. Minister for Agriculture,

Fisheries & Food [2016] 2 ILRM 81).

33. Counsel submits it is well established that planning permission is to be seen as a form of licence, permitting the owner of land to

build on certain land. But such a licence does not have a value separate from the enhanced value of the land in respect of which it is

granted. In other words, the permission itself cannot be sold, in order to permit the same structure to be built on some other land. It

is in that aspect different from an intoxicating liquor licence. (See Muldoon v. Minister for Environment & Others [2015] IEHC 649,

Peart J.). The granting or withdrawal of a privilege does not give rise to a right. Counsel submits that the duty of local authorities in

engaging in planning decisions is for the benefit of the public as a whole, and not for one person, or class of persons. Counsel also

referred this Court to Glencar Exploration Plc. v. Mayo County Council (No. 2) [2002] I.R. 84. In Glencar, this Court rejected the

submission that it was foreseeable that the plaintiff there would suffer loss in the event of an ultra vires inclusion of a mining ban in

Mayo County Council’s development plan. In his judgment, Keane C.J. observed that the court was concerned with negligence alleged

against a public authority in the performance of its statutory function. The Chief Justice outlined that the circumstances in which a

duty of care can be said to arise in the case of such authorities when exercising statutory functions has given rise to an enormous

volume of decided cases in the common law world. He outlined that there were many instances in which a public authority would be

liable in negligence, because the duty of care imposed by the law on them is no different from that arising in private law. But, in such

cases, a plaintiff does not have to call in aid to the fact that the defendants may have been exercising a statutory function. Their

duty of care as occupiers, or employers, etc., is no greater, but also no less than their counterparts in the private sector. (See

[2002] 1 I.R. 84, at pp. 139 - 140. Counsel against refers to Pine Valley Developments Limited v. Minister for Environment [1987] I.R.

23, and Cromane Foods Limited v. Minister for Agriculture, Fisheries & Food [2016] 2 ILRM 81). The case made is on the face of it

governed by decided authority. The appellants have not made the case that their case is distinguishable from those authorities.

34. In a situation such as this, therefore, this Court must now look at the entirety of the situation on the case as argued. Mr. Tracey

has, on a number of occasions, benefited from decisions where it has been held that his illness should have given rise to a decision to

adjourn. But the second consideration is whether or not he, or Mrs. Tracey, can show, on legal argument, that the case against the

City Council could conceivably succeed? This Court has not been referred to any distinct legal basis upon which it can be argued that

this claim, as now initiated by the appellants against the third named respondents in this case, could now conceivably succeed. The

Court can only base its decision on what is submitted. No. clear case has been identified in negligence or breach of duty. Even if a

case was arguable, counsel submits it would now be governed by the judgment of this Court in Cromane. Mr. Tracey has not shown

that the essential criteria can be satisfied, even to the point of arguability. For this reason, it is unnecessary to consider whether the

claim is also statute barred or, whether in the circumstances, constitutes an impermissible collateral attack on the judgment of this

Court in White v. Dublin City Council.

35. As no arguable case has been shown against either respondent, I would dismiss this appeal for the reasons set out.