High Court dismisses claims for disclosure of lobbying and financial records as a moot point.

Croghan et al v Townbe et al [2025] IEHC 413

THE HIGH COURT PLANNING & ENVIRONMENT RECORD NUMBER: 2024 4410 HP BETWEEN ALAN CROGHAN AMANDA FARRELLY and MELISSA KELLY PLAINTIFFS AND PAUL COLLINS TANYA HENNIGAN TOWNBE UNLIMITED COMPANY THE COMMISSIONER OF AN GARDA SIOCHANA RODERICK O’GORMAN THE MINISTER FOR CHILDREN, EQUALITY, DISABILITY, INTEGRATION AND YOUTH DUBLIN CITY COUNCIL THE GOVERNMENT OF IRELAND THE MINISTER FOR HOUSING LOCAL GOVERNMENT AND HERITAGE

DEFENDANTS

JUDGMENT OF MR JUSTICE DAVID HOLLAND, DELIVERED EX TEMPORE ON 18 JULY 2025.

Contents JUDGMENT OF MR JUSTICE DAVID HOLLAND, DELIVERED EX TEMPORE ON 18 JULY 2025. .............................. 1

INTRODUCTION & MOTIONS ............................................................................................................................... 2

Abandonment of the Crown Paints Site IPAS Project & Canvassing of a Moot .............................................. 2

Own Motion Questions ................................................................................................................................... 3

Ms Farrelly’s & Mr Croghan’s Positions........................................................................................................... 4

Ms Kelly’s Position as to Fairness .................................................................................................................... 4

PLAINTIFFS’ PLEADED COMPLAINTS .................................................................................................................... 5

MOOT – OWN MOTION JURISDICTION ............................................................................................................... 8

PROSPECTS OF THE PROJECT ............................................................................................................................... 9

IS THERE A MOOT? ............................................................................................................................................ 10

SHOULD I HEAR ANY MOOTS? ........................................................................................................................... 11

O’Brien, SY(Dare) & MC ..................................................................................................................................... 14

CONCLUSION ..................................................................................................................................................... 16

Croghan et al v Townbe et al [2025] IEHC 413

INTRODUCTION & MOTIONS

1. The Plaintiffs, as lay litigants, bring these proceedings by Plenary Summons. It is not in the usual form in that its indorsement contains considerable and wide-ranging narrative and runs to 12 pages. The Statement of Claim runs to 84 pages and ranges widely. Its layout makes it difficult in places to reliably understand. However, the central thrust of these proceedings can be gleaned from the Plaintiffs’ Notice of Motion of August 2024 seeking interlocutory reliefs - which interlocutory relief were refused by my judgment delivered 31 October 2024.1 That Notice of Motion sought:

1. “An injunction against any of the above named defendants or any of their agents or employees from housing migrants at the Coolock Crown Paints site or its environs.

2. A mandatory injunction on the relevant public representatives to adhere to the precautionary principle and halt this project immediately in accordance with the TFEU Article 191 …”.

More specifically, the reference to “housing migrants” refers to a contemplated (to use a neutral term) an International Protection Accommodation Service (“IPAS”) Accommodation Centre (“the Project”) on the former Crown Paints Factory Site (“the Site”) in Coolock, Dublin.

2. That judgment of 31 October 2024 also set out the general factual background to this matter and, as relevant, I adopt that description by reference here.

3. By notices dated 26 February 2025, and 12 March 2025 (two such), the First, Second and Third Defendants (“Townbe”), Dublin City Council and the State2 Defendants, together comprising all Defendants in the case, motioned that the proceedings be struck out or dismissed pursuant to Order 19 RSC and/or the inherent jurisdiction of the Court as disclosing no reasonable cause of action, amounting to an abuse of process, bound to fail, and/or having no reasonable chance of succeeding. Those motions came on for hearing yesterday.

Abandonment of the Crown Paints Site IPAS Project & Canvassing of a Moot

4. Since the motions issued, the Government (by the 6th Defendant – The Minister for Children) publicly announced on 15 May 2025 that it does not intend to set up an IPAS Accommodation Centre on the Crown Paints Site. In consequence, Townbe has stated that it no longer intends to develop the Site as an IPAS Accommodation Centre. In that sense, the factual matrix which underlay the proceedings when initiated and as they relate to accommodation of immigrants has dissipated.

1 Croghan et al v Collins et al [2024] IEHC 607.

2 The Fourth, Fifth, Sixth, Eighth and Ninth Defendants.

Croghan et al v Townbe et al [2025] IEHC 413

5. On my becoming aware of this announcement and on my initiative I had the case listed before me. I asked the parties for written submissions as to whether the proceedings are moot in whole or in part and, if

so, what to do about it. I will refer to these issues, collectively, as the “mootness issues”. It is fair to say,

without criticism, that the parties’ resulting submissions disclosed that, for different reasons, they all wanted the case to proceed. It is also fair to say that this had the understandable effect that the written submissions did not engage fully with the mootness issues and, specifically, elided the distinct questions: first whether there was a moot, and second whether a moot should be tried.

6. As stated, the information that the Project would not proceed derived from a public announcement by the Minister. While informative, it is not evidence. Yet I was concerned that it would be unreal and undesirable to proceed further in the case on a basis as to fact – that is to say that the project remained realistically in prospect - which all involved knew in reality to be incorrect. Yesterday, I asked the State and Townbe to clarify their positions in this regard – which they helpfully did by counsel. I directed that they file affidavits overnight confirming the position as stated by counsel. That has been done and they are in the terms expected given counsels’ statement of their respective clients’ positions. That sworn for the State has added clarification that on 16 May 2025, the Department of Justice e-mailed TDs, senators, and local elected representatives to the effect that Department was “no longer considering the offer of a potential IPAS accommodation centre at the former Crown Paints site in Coolock in Dublin.”

7. Yesterday, all parties took the position that they want the case to proceed. The Plaintiffs maintained that position. The Defendants’ position developed during the hearing – as I will describe in due course.

Own Motion Questions

8. Of my own motion, I yesterday raised with the parties my concerns as to whether I should hear the motion to strike out/dismiss the proceedings or whether I should first consider the mootness issues. Those concerns were translated into a sequential series of questions as follows:

a. Given the parties’ unanimous desire that the case should proceed – in the case of the defendants to

decision of their motions to strike out/dismiss and in the case of the plaintiffs to trial, did I have an own motion jurisdiction to declare a moot?

b. What, evidentially, was the Defendants’ position as to the prospects of the Project?

c. Was any part of the case moot?

d. If so, and as to any such part of the case, should I hear it, nonetheless?

The outcome of that discussion with the parties is this judgment on the mootness issues. First, however, some initial observations are required.

Croghan et al v Townbe et al [2025] IEHC 413

Ms Farrelly’s & Mr Croghan’s Positions

9. Ms Farrelly did not appear yesterday morning when the case was called. A friend of hers intimated to me that she had become unwell overnight. I decided to hear argument in her absence but indicated that I was anxious that she appear at 14:00 and that arrangements could be made for her remote attendance if needs be. In the event, she attended in person at 14:00. I gave her an oral summary of the arguments which had taken place in the morning and told her that I intended to give judgment the following morning (i.e. this judgment) on the mootness issues. I indicated that she was entitled, if she wished, to argue that any such judgment should not govern her case and that I would hear her on that issue – though there was a certain unreality to a prospect of distinguishing her case from those of her co-plaintiffs. She indicated that she was happy with and understood my summary of the earlier arguments and happy also that I give judgment on the mootness issues in her case.

10. Though she wants her case to proceed, Ms Farrelly did not argue the mootness issues. Though he vacillated, Mr Croghan ultimately decided that he wants his case to proceed. He also did not argue mootness issues. In their ease and as to the mootness issues, I will attribute Ms Kelly’s arguments to Ms Farrelly and Mr Croghan.

Ms Kelly’s Position as to Fairness

11. I will come to Ms Kelly’s substantive arguments on the mootness issues in due course. Having orally drawn to the parties’ attention my own concerns as to mootness, I heard the Defendants first on those issues. In part, that was because they were the moving parties on the motions. But it also seemed to me that it would assist Ms Kelly, in addressing the mootness issues, to have heard the positions of the Defendants first.

12. Ms Kelly argued that it was unfair to expect her, as a lay litigant, to argue those issues as she was unprepared given the parties’ written submissions had all wanted the case to proceed. I ruled that it was not unfair to do so as I had explicitly called the parties in some time ago, of my own concern in that regard, and had directed submissions on the issue. Also, it is clear that Ms Kelly is a person of some capacity and legal knowledge. Though her written submissions on the motions to dismiss/strike out do not in substance address the mootness issues, they are clear that she was conscious of them.3 Indeed she expressed the view that

“of course we do not want the proceedings mooted as we are challenging not just the housing of migrants, but the IPAS related secondary legislation that would have facilitated same,

3 §§125 and 128.

Croghan et al v Townbe et al [2025] IEHC 413

“Townbe is also in possession of its section 5 declaration4 that the 20f exemption is valid although they will now not be housing migrants and this must be revoked. If anything, instead of rendering our case moot the lack of intention to house migrants has strengthened it.”

In the event, Ms Kelly argued the mootness issues and drew my attention to two cases on mootness to which I will refer in due course.

Accordingly, I am satisfied that there is no unfairness to Ms Kelly in deciding the mootness issues in this judgment and on foot of yesterday’s arguments.

PLAINTIFFS’ PLEADED COMPLAINTS

13. As has been seen, the Plaintiff’s substantive complaints are relatively easily identified in the round.

They are less so in their detail. Ms Kelly’s Statement of Claim, filed, I take it, for all parties, runs to 84 pages,

over 32,000 words and 137 paragraphs – many are lengthy. It is prolix and difficult to navigate. The Plaintiff’s

substantive complaints, as pleaded in the Plenary Summons, may be briefly summarised as follows:

• They object, on various pleaded grounds:

o to the accommodation of migrants at the former Crown Paints Site in Coolock, Dublin 17;

o more generally, to the immigration of migrants to the State.

• Various declarations are sought - in very non-specific terms – terms not related to the validity of specific and identifiable instruments.

• They allege various wrongs by An Garda Síochána in and about the policing of what they describe as peaceful protests against the accommodation of migrants at the former Crown Paints Site (“the Site”)

in July. In particular, and though the torts alleged are not identified as such.

o Mr Croghan, a Coolock resident, alleges assault and battery of his person by members of An Garda Síochána on the occasion of what he asserts was a peaceful protest outside the Site on 16 July 2024.

He sets out in the Plenary Summons a detailed narrative of the alleged occurrences on that occasion and has essentially repeated that account on affidavit in these proceedings.

o Ms Farrelly, also a Coolock resident, makes similar allegations as to the policing of a protest on 15 July 2024 – though it is unclear if she complains of battery as opposed to assault.

o Ms Kelly is not a Coolock resident – she lives in Ballinasloe, County Galway. She makes no personal complaints against An Garda Síochána.

14. However, it is important to record that yesterday Mr Croghan made clear that he no longer wishes to advance in these proceedings his complaints as to his treatment by An Garda Síochána. He said he had chosen to do so in other fora.

4 This refers to the fact that on 7 January 2025 Dublin City Council made an order “granting” an exemption to Townbe for the change of use, at the

former Crown Paints Facility, Malahide Road, Coolock, Dublin 17, from wholesale warehouse/repository and light industrial use to temporary

accommodation for displaced persons seeking international protection …”.

Croghan et al v Townbe et al [2025] IEHC 413

15. Returning to the Plenary Summons, the reliefs sought can be summarised as follows:

1. An injunction against any of the defendants restraining them from housing migrants in The Crown Paints Facility, Nos 1-3, Malahide Road, Coolock, Dublin 17 or its environs.

2. A declaration that the right of a family and or community to protect the safety and wellbeing of their children is a right protected by Bunreacht na hÉireann.

3. Mandamus requiring the relevant defendants to adhere to the precautionary principle and halt the project in accordance with the TFEU Article 191.

4. A declaration that certain acts outlined in this matter are an infringement on the unenumerated natural and inalienable rights as enshrined under Article 40.3 of the Constitution of Ireland.

5. A declaration that the decision to accept mass unvetted asylum migration into Coolock is an infringement of the TFEU Article 191 for failure to adhere to the precautionary principle.

6. A declaration that the international protection related legislation and the actions of certain Defendants5 are in breach of the Aarhus Convention and related legislation because of lack of transparency, lack of access to data regarding safety and environmental risk assessment protocols and lack of public participation in the decision-making process.

7. A declaration that the international protection related legislation is contrary to the constitution of Ireland and the ECHR because it is discriminatory.

8. A declaration that the Garda Síochána acted in a breach of their oath and in a manner repugnant to the constitution the ECHR and the international convention of civil and political rights.

9. An order of disclosure of certain documentsi (it is clear that these documents are specific to Townbe, the Project and the Site).

10. An order of mandamus for the chief superintendent to investigate all criminal matters relating to unvetted migrants being trafficked or otherwise entering the country without documentation and an effort to ascertain their true identity in order to deport dangerous criminals.

11. An order of mandamus on the chief superintendent to investigate allegations of “provocateurs” operating in and around the Site and of police brutality and of possible foreign agents operating without identification as part of the so called “riot squad”.

12. Interim and interlocutory relief.

5 The summons says “Plaintiffs” but the context makes both the error and its correction clear.

Croghan et al v Townbe et al [2025] IEHC 413

13. Leave to add further plaintiffs and defendants as the situation progresses as this summons was compiled in urgency because of current events.

14. Costs and expenses.

15. Reasonable accommodation as a lay litigant.

16. It is not necessary here to give a detailed account of the Statement of Claim which was delivered in November 2024. Suffice it to say that it ranges widely - not merely as to the narrative and the claims for relief already set out in the Plenary Summons but by way also of polemic and of critique of the manner in which the defendants and the Court had dealt with the proceedings to the time of delivery of the Statement of Claim, including at some length, disagreement with my judgment of 31 October 20246 refusing interlocutory relief and extensive citation of caselaw. I note that the Plaintiffs:

• Complain of inadequate transposition of the Aarhus Convention7 and the Public Participation Directive8 to Irish law – this by reference to which the Defendants, in their various capacities had addressed the planning status of the Site and the Project.

• Complain that “myriad of IPAS-related legislation/statutory instruments” are ultra vires as in breach of the public participation directive and Aarhus.

• Complain of the rezoning of the Site in the Council’s 2022 Development Plan to facilitate developments such as the Project.

• Complain of the advancing of the project as exempted development within the meaning of the PDA 20009 and the resultant failure to perform EIA of the project.

• Complain of perjury by Townbe as to the planning status of the project.

• Complain that the presence of asbestos on the Site is such that its development, if not restrained by effective remedy, represents a danger to the community in breach of various constitutional rights, human rights and EU Law rights and obligations, including treaty rights such as Articles 3, 19 and 191 TEU, Article 37 CFREU and Article 288 TFEU, the EIA Directive and its transposition to Irish law, the Corporate Sustainability Directive10 and EU And Irish legislation specific to asbestos.

• Complain also of the presence of other dangerous substances.

6 Croghan et al v Collins et al [2024] IEHC 607.

7 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus,

Denmark, on 25 June 1998.

8 Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and

amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC - Statement by the Commission.

9 Planning and Development Act 2000 as amended.

10 Directive (EU) 2024/1760 on corporate sustainability due diligence and amending Directive (EU) 2019/1937 and Regulation (EU) 2023/2859.

Croghan et al v Townbe et al [2025] IEHC 413

• Invoke s.160 PDA 2000 in seeking injunctive relief.

• Complain that any planning exemption for the purpose of housing IPAS/BOTPS11 that does not apply to housing indigenous homeless persons or families with housing needs building on their own land and housing themselves is discriminatory, “and all the more disgusting” given the extent of our current homelessness problem.

• Ground their claim for a declaration against the Garda Síochána on its alleged actions against protestors against the Project.

• Couch their complaint of unsustainable demographic change and mass migration to both Coolock and Ireland “as a nation” as causing “horrific environmental damage”.

17. However it is important to say of the Statement of Claim that the only pleaded factual matrix by reference to which the many complaints in the Statement of Claim are made, and the claim for disclosure of documents is made, is the Project and, in the case of the complaints against An Garda Síochána, its policing of protests relating to the Project.

MOOT – OWN MOTION JURISDICTION

18. The first question was whether, given the parties’ unanimous desire that the case should proceed - in the case of the defendants to decision of their motions to strike out/dismiss and in the case of the plaintiffs to trial - I have a jurisdiction, of my own motion, to declare a moot?

19. In argument, the Plaintiffs did not address that question. The Defendants all took the position that I had such an own motion jurisdiction. I hold that I do. On seeing an unapproved version of this judgment, Ms Kelly said she had disputed my own motion jurisdiction but hadn’t been given opportunity yesterday to address that issue. I indicated to her that I would record her position in the approved version of this judgment – which I now do. I am satisfied that Ms Kelly had a fair opportunity yesterday to address that issue.

20. In deference to the parties’ unanimous desire that the case should proceed and for the assistance in particular of the Plaintiffs as lay litigants, I should say that, in my view, such and own motion jurisdiction proceeds from concerns identified by Hogan J and recently cited by Farrell J in, respectively, Farrell12 and O'Meara.13 They agreed that the starting point in considering whether proceedings have become moot by reason of intervening events is that “the mootness doctrine represents the application of prudential rules of

11 Beneficiaries of Temporary Protection.

12 Farrell v Governor of St Patrick’s Institution [2012] IEHC 429, Hogan J.

13 O'Meara v Westmeath County Council [2025] IEHC 192, Farrell J.

Croghan et al v Townbe et al [2025] IEHC 413

practice designed to conserve the judicial power, protect the proper administration of justice and to ensure that the judicial branch does not stray from its constitutionally assigned mandate in Article 34.1 by delivering in effect what are in effect advisory opinions.” These seem to me to be considerations grounded not merely, or even primarily, in the adversarial interests or desires of the parties but in the court’s own proper interests. The same can be said for the observation in Lofinmakin14 that “In a time of scarce and declining resources15 on the one hand and of an ever increasing stream of litigation, much of which is lengthy and complex, on the other, the courts must consciously scrutinise and carefully calculate how best they can fulfil their functions.”

21. Counsel for the State tellingly and correctly observed that any other view would imply that parties could, in effect, contrive by co-operation on the issue of mootness, if on no other, to require - one might say force - the court to decide a hypothetical case, grounded in no factual matrix and issue an advisory opinion in contravention of the constitutionally assigned mandate of the courts. In fairness to all, that observation was made and I adopt it, not as a description of the course taken by the parties in this case but as an illustration of the necessity of the own motion jurisdiction.

22. So, I conclude that, as the Defendants accept and the Plaintiffs did not argue against, but also from my own analysis, that I have a jurisdiction to discern a moot of my own motion.

PROSPECTS OF THE PROJECT

23. As to the factual prospects of an IPAS Centre on the Crown Paints Site, counsel for the Minster was properly circumspect – but only marginally so. He could not say there will never under any circumstances be an IPAS Centre on the Site. However he did not fall far short of “never”. His reservation was, he said, no more than the difference between "no" and "never". The State has no plans, overt or “in the background” for, and is not considering the possibility of, an IPAS Centre on the Site in the foreseeable future. It is at the moment out of consideration and “the State is no more likely to contract for the use of this site than any other site in the country.” He also said, and I accept, that he could not imagine a scenario where an IPAS Centre would be put on the Site without a prior public announcement.

24. Counsel for Townbe, the leaseholder of the Site and putative developer of the Project, was blunter. He said that Townbe had been told by the Minister that it will not get a contract for an IPAS Centre on the Site. As he put it, Townbe had been told a flat “No”.

25. Later in discussion, and to no objection from the Defendants, I stated it as my understanding of:

14 Lofinmakin v Minister for Justice, Equality and Law Reform [2013] 4 IR 274.

15 i.e. judicial resources.

Croghan et al v Townbe et al [2025] IEHC 413

• The State’s position as being that for the foreseeable future, there is simply no prospect of an IPAS centre on the Site.

• Townbe’s position as being that it no longer intends to construct an IPAS centre on the Site.

26. It is clear and I find that it is now, putting it at its least and insufficiently emphatically, improbable that the Project will proceed.

IS THERE A MOOT?

27. I do not consider that I need to extensively review the authorities as to the identification of a moot. It suffices I think to cite:

• Farrell16 and O'Meara17 in which moot proceedings were described as, typically, cases “which are no longer live or where the controversy lacks any immediacy or force of reality.”

• Harte18 citing Lofinmakin to the effect that, for a case not to be moot, “there must exist some issue(s), embedded within a factual or evidential framework, the determination of which is/are necessary so as to resolve the conflict or dispute which necessitated the proceedings in the first instance. It has therefore always been recognised that, without such a concrete foundation, the courts typically will decline to intervene.” Lofinmakin similarly refers to the need for a “tangible and concrete dispute” and “real and definite issues in which the parties retain a legal interest in their outcome.”

• O’Mahoney:19 o to the effect that “a Court should not give an opinion on a question of law unless there is a concrete factual dispute that requires and contextualises the question the Court is asked to answer”;

o citing Irwin20 to the effect that mootness, by requiring the existence of a live controversy between the parties to the case in order for the issue to be justiciable, is applied to restrain parties from seeking advisory opinions on abstract, hypothetical or academic questions of law.

• Odum,21 citing G v Collins and Tribe, for the view that “mootness can be viewed as ‘the doctrine of standing set in a time frame: the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” See also O’Brien.22 Odum also cites the “core principle” as being that common law courts generally resolve only “present, live controversies”.

16 Farrell v Governor of St Patrick’s Institution [2012] IEHC 429, Hogan J.

17 O'Meara v Westmeath County Council [2025] IEHC 192, Farrell J.

18 Harte v Superior Courts Rules Committee [2025] IECA 23.

19 O'Mahoney v Minister for Health [2025] IEHC 45, [2025] 1 JIC 3106.

20 Irwin v Deasy [2010] IESC 35.

21 Odum v Minister for Justice [2023] IESC 3 ([2023] 2 ILRM 164. Odum cautions that that the US approach cannot be simply read across to this

jurisdiction but I do not think the proposition I have cited is controversial.

22 O'Brien v Personal Injuries Assessment Board (#2) [2006] IESC 62, [2007] 1 IR 328 §16.

Croghan et al v Townbe et al [2025] IEHC 413

28. Counsel for the State ultimately and fairly accepted that any issue in the proceedings turning on the prospects of an IPAS Centre on the Crown Paints Site is now moot. I so hold. In my view, any case reliant for

its factual matrix – the factual “hook” on which justiciable legal issues must hang – on an asserted prospect

or fear of an IPAS Centre on the Crown Paints Site lacks “any immediacy or force of reality”. Accordingly, there is now absent from the proceedings any “concrete factual dispute that requires and contextualises the question the Court is asked to answer”.

29. I was struck on my revisiting, in writing this judgment, the Statement of Claim and on my analysis of its content as set out above, by the extent to which the Project pervades the issues pleaded as the only factual matrix supporting the many pleas of law made – save for the complaints against An Garda Síochána. In my view, that implies not merely that the claim for injunctive relief is moot but that the great part and possibly all of the legal issues pleaded, as they relate to accommodation of International Protection Applicants, Beneficiaries of Temporary Protection and other immigrants and the various legal regimes – for example planning law, environmental public participation law and EIA law – bearing on the project are also moot.

30. I should mention one issue in particular. Ms Kelly argued that even if the issues relating to the Project was moot, a real issue remained as to the validity of a planning exemption declaration and the statutory regime underlying it. As recorded above, on 7 January 2025 Dublin City Council made an order “granting” an exemption to Townbe for the change of use, at the former Crown Paints Facility, Malahide Road, Coolock, Dublin 17, from wholesale warehouse/repository and light industrial use to temporary accommodation for displaced persons seeking international protection. In my view, as this order related, and related only, to a change of use of the Site and to its change of use to IPAS accommodation and as that change of use is no longer in prospect, it follows that any issue as to the validity of that order and the statutory regime underlying it is also moot.

31. I am conscious that in argument yesterday I anticipated that the scope of the issues remaining after any moots had been ruled out of the proceedings would be greater than, perhaps, the analysis above suggests. As I have said, I was struck on my revisiting the Statement of Claim by the extent to which the Project pervades the issues pleaded. However, lest anyone considers this view unheralded, and in any event as desirable in respect of what could prove a complex order, I will hear the parties further as to scope of any issues not to be characterised as moots.

SHOULD I HEAR ANY MOOTS?

32. As I have said, the parties, from their different perspectives, all wanted the case to proceed. The Plaintiffs - Ms Kelly at least as she appears to take a more strategic and nationwide view of the issues than do Ms Farrelly and Mr Croghan who are Coolock residents and whose concerns appear to be primarily local - no doubt, are anxious to establish what they see as legal principles which they advocate as generally

Croghan et al v Townbe et al [2025] IEHC 413

applicable. In the opposite substantive expectation, the State and Townbe, both of which expect to be involved in further similar projects, are likewise anxious to establish for future use as to other projects what they see as the applicable legal principles. Indeed, it seems reasonable to infer that they consider what they see as the prospect of orders dismissing the proceedings as bound to fail as likely to be generally salutary.

33. There is a discretion to hear a moot. But in O’Mahoney, Cahill J analyses the cases23 as emphasising the exceptional and tightly circumscribed nature of that discretion and it can only be exercised reluctantly, sparingly and with caution - even where there is an important point of law involved. As Denham CJ said in Irwin, “the foundations of a case that is moot have fallen away and so they are usually not appropriate cases upon which to decide important points of law, unless there are other factors…”. That the discretion to hear a moot is exercised reluctantly, sparingly and with caution - even where there is an important point of law involved - flows from the fact that, as stated in Lofinmakin, the policy against deciding moots is “firmly based” and “deep rooted”.

34. Odum24 seems to me also notable for explaining the view that, as to whether to hear a moot, different considerations apply when the issue arises in an appeal as compared to those which arises, as they do in this case, at first instance “and accordingly it is not to be expected that the application of the same principles underlying the rules on both standing and mootness will lead to the same outcome in every case.” The contrast was drawn in Odum between moots arising in an appeal which, if not heard, would leave the precedential effect of the lower court decision intact and deprive the law of a precedential appellate-level

decision and moots resulting in refusal of leave to commence proceedings which have not been determined but it seems to me that the contrast applies, at least broadly, to first instance moots generally.

35. The arguments for my deciding the moots were essentially threefold: that similar cases are in prospect, that the issues of law are important, and that declaratory relief is sought.

36. The first, by all parties, was that the moot issues are capable of repetition – they will arise again in other litigation. I can take judicial notice that an appreciable number of similar cases are extant and that, at least in general terms, more can be anticipated. Townbe’s rationale, as stated in their written submissions, was as follows:

“Townbe remains engaged in the provision of accommodation services to the Government, and in a number of instances it, or related companies, are dealing with IPAS centres. Townbe has had to expend significant resources in meeting the Plaintiffs’ claim so far, including meeting and defeating an application for interlocutory reliefs. Townbe apprehends that proceedings similar in nature are very much "capable of repetition”, either at the hand of the Third Plaintiff, or someone who raises similar meretricious arguments. It would undoubtedly assist Townbe, in any future litigation, to be able to refer to a determination of this Court in relation to the issues in this case, and it is such a

23 Lofinmakin v Minister for Justice, Equality and Law Reform and Others [2013] 4 IR 274 §51; PV v Courts Service [2009] 4 IR 264; Irwin v Deasy [2010]

IESC 35.

24 See for example §§34 & 35.

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determination that Townbe hopes for in its strike out application. This is something of value to Townbe, and it means that – for Townbe – the issues at stake are not abstract, hypothetical, or academic.”25

37. The antecedents of the phrase "capable of repetition”, lie in G v Collins,26 in which Hardiman J noted that in the US:

“an issue is not deemed moot if it is “capable of repetition, yet evading review" … where "(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again".”

“As might be expected from that formulation, such cases have tended to focus on time limited events such as election campaigns, pregnancy, (as in Roe v. Wade) and time limited court orders especially in the domestic violence area.”

Cahill J in O’Mahoney accepted the foregoing as Irish law.

38. I accept that in general terms litigation opposing IPAS centres and similar accommodation facilities is capable of repetition. Whether such cases will raise the same or similar legal issues is more difficult to predict but I am prepared to assume they will. But neither Townbe nor anyone else addressed argument to the second part of this criterion for deciding what would otherwise be a moot: the phrase “yet evading review”.

39. As I understand this phrase, it addresses the concern that particular types of legal issue and dispute are, of their nature, both time-limited and likely to become moot before they get to trial. Further, it is the likelihood that future such disputes will, for that reason, be likely to again escape review, which underlies this exception to the principle that moots should not be decided – see O’Mahoney.27 And, as was said in G, there must be an “evidential foundation for such an expectation” – see also O’Mahoney.28 There is here no reason to consider that such a likelihood is in prospect.

40. I should hasten to say that counsel for Townbe readily and very properly accepted that he could not argue that the phrase “yet evading review” could be foreseen as applying to any future disputes of similar kind to the present. Counsel for the State, as readily and properly, also accepted that as the position. No doubt all parties anticipate that decision of the pending motions would provide useful precedent and clarity in the law. But that is true of many moots and, at least at first instance and in this case, is not enough to

Submissions 6 June 2025 §28.

26 [2004] IESC 38, [2005] 1 ILRM 1, at p26. Hardiman J went on to say: “As might be expected from that formulation, such cases have tended to focus on

time limited events such as election campaigns, pregnancy, (as in Roe v Wade) and time limited court orders especially in the domestic violence area.”

27 O'Mahoney v Minister for Health [2025] IEHC 45, [2025] 1 JIC 3106 §89.

O'Mahoney v Minister for Health [2025] IEHC 45, [2025] 1 JIC 3106 §§84 & 85.

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activate the exception as to legal issues "capable of repetition, yet evading review". It follows that this exception to the general rule against deciding moots does not apply to the present case.

41. Ms Kelly in particular argued that the issues of law are important and that declaratory relief is sought. I accept for purposes of argument that the many legal issues raised by Ms Kelly are important. However, that is not enough to justify hearing the moots in this case. As has been seen, O’Mahoney and Irwin are authority that, even where there is an important point of law involved, moots can be heard only exceptionally, reluctantly, sparingly, with caution and where “there are other factors” at play. I see no such factors here and respectfully reject Ms Kelly’s argument.

42. Nor does it seem to me that the fact that declaratory reliefs are sought weighs, at least in this case significantly in favour of hearing a moot. The prospect of declaratory relief may facilitate the hearing of a moot for the exceptional hearing of which there is otherwise good reason. Indeed the very fact of a moot implies that the relief perhaps most likely to ensue from its decision is a declaration. However, at least usually, that the remedy likely to ensue is declaratory is not the significant issue in deciding whether to decide a moot. In a sense, the argument puts the cart before the horse.

43. It is not necessary to my conclusions on the issue whether I should proceed with the moots, but amplifies those conclusions in this case which is far from trial (defences are not yet in), that counsel for the State very properly advised me that judgment already stands reserved in another case in which at least broadly similar legal issues are to be decided. While I briefly referred to these proceedings in my judgment of

31 October 2024,29 I know little of that case or of the legal issues involved but the judgment of counsel is that, as I say, at least broadly similar legal issues are to be decided. That factor diminishes any impetus to decide similar issues in a moot.

O’BRIEN, SY(DARE) & MC

44. Ms Kelly cited two cases: O’Brien30 and SY(Dare).31 In SY(Dare) a minor applicant for international protection sought judicial review of an admitted failure, in breach of Irish and EU Law, to provided him with the “material reception conditions” to meet his “basic needs” – accommodation/shelter, food and basic hygiene conditions - to which he said he was by law entitled. It was common case that what was provided fell far short. He had €15 and was given €28 to buy bedding and the address of the Capuchin Day Centre, a private charity. He had to sleep rough and had to beg for food. He had been robbed at knifepoint. He had been unable to wash properly or change clothes for about 23 days. The judgment does not use the word but the State had clearly left him destitute. By the time the case came on, proper material reception conditions had been provided but had not been provided to many of his peers who were in similar conditions to those he had been in. The case was one of very many similar and had been identified as a “lead case” to decide the

29 §3.

30 O'Brien v Personal Injuries Assessment Board (#2) [2006] IESC 62, [2007] 1 IR 328.

31 SY (Dare) v Minister for Children and [2023] IEHC 187, [2023] 4 JIC 2101.

Croghan et al v Townbe et al [2025] IEHC 413

important issues of the legal issues and entitlements efficiently within a short time frame. Meenan J held that “[t]o dispose of this application on grounds of mootness would totally defeat the whole point of having a ’lead case’”.

45. Meenan J cited Lofinmakin and MC.32 In the latter case Baker J in the Supreme Court had decided to hear an appeal in judicial review as to the residential arrangements made for the conditional discharge of a person who had been confined in the Central Mental Hospital having killed one of her children and attempted to kill another and attempted murder of her children but who had responded well to treatment. By the time the appeal in the Supreme Court came on she had been unconditionally discharged and the application was moot as to the claims for mandamus and certiorari. The Applicant sought declaratory relief that her rights had been violated and damages in consequence. Baker J held that where MC asserted past breach of fundamental rights (not allegedly prospective breaches here, if any) for which damages, if nominal, might yet be awarded, by way of loss of personal and individual dignity, breach of her rights to marital and personal privacy, of autonomous decision-making, and self-determination, - central elements of the human personality - it was “difficult to see how proceedings claiming that those rights have been violated could be moot.” Baker J said:

“It could not be said that an action founded on an alleged violation of a constitutional right is never moot, but a claim which is sufficiently particularised in concrete and credible complaints regarding an alleged infringement of these constitutionally protected rights which have an undoubted centrality in the constitutional scheme must be regarded as carrying sufficient importance to not readily be characterised as insubstantial.”

46. It is of some importance to note that, unlike in the present case, Baker J did not decide to hear a moot – she decided there was no moot.33 She did observe that she would be “reluctant to say that every claim which seeks a declaration that there has been a violation of constitutional and/or ECHR rights would pass a threshold test if an argument of mootness was raised.”

47. In SY, Meenan J held that “though the issue of accommodation has been resolved in the instant case, this issue and the other “material reception conditions” remain live in many other cases. It must be in the interests of the parties that the issues raised by the applicant are resolved. Further, even if the instant case were not a “lead case” I am of the view that the declarations being sought by the applicant would pass the threshold test as identified in the above passage from the judgment of Baker J. in M.C …”.

48. In my view, SY does not assist Ms Kelly. First, there has been no substantive breach of fundamental personal human rights of any of the Plaintiffs – not even allegedly. Even on their view of things there cannot have been as the Project was never built. Their situation is simply not comparable to those of MC or SY and Baker J’s threshold test is not passed. Further, though the concept of cases “capable of repetition, yet

32 C v the Clinical Director of the Central Mental Hospital [2021] 2 IR 166.

33 §67.

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evading review" was not explicitly mobilised in SY, that it was a test case seems of at least some importance. Clearly the provision of accommodation to international protection applicants is a highly dynamic process and in such cases the State, very properly, may often succeed in providing accommodation before relevant litigation gets to trial. That seems likely in SY to have contributed at least something to the decision to hear the moot. As I have said, I do not consider that the prospect of cases “capable of repetition, yet evading review" arises in the present case. In short, MC and SY do not seem to me to weigh appreciably in the present case in favour of my exercise of my discretion to decide moots.

49. In O’Brien34 the High Court had granted a declaration that PIAB had erred in law in refusing to deal with the solicitor for an applicant for compensation for personal injuries and had awarded costs, which were substantial. PIAB appealed. By the time the appeal came on PIAB had authorised the applicant to commence legal proceedings and so the claim was out of its hands. The Applicant said the appeal was moot. PIAB pressed that it be decided.

50. The Supreme Court decided the appeal was not moot. Again it was not a case of the exercise of the discretion to hear a moot. PIAB had a real interest in the issues pending on appeal in that they related to the exercise of its statutory powers and in the substantial question of costs. Also, there remained a real possibility that the applicant would have to institute other personal injury proceedings in the future via solicitors and in reliance on the High Court judgment - so the matter could not be said to have no further importance for the applicant.

51. O’Brien does not persuade me to hear the moot in this case. It related to an appeal in which, if nothing else, substantial costs remained in issue. As I have said, different considerations as to hearing moots arise in appeals – not least, no doubt, in the O’Brien case, that if the appeal were not heard the High Court judgment would govern PIAB in processing inevitably very large numbers of claims in the doubtless appreciable period which would elapse before a non-moot instance of the issue made its way to the Court of Appeal or the Supreme Court. It is easy to see why the Supreme Court decided that the case was not moot. The case also illustrates that cases turn on their particular facts. I do not see that the present case, or the body of litigation of which it might be considered to form a part, is comparable.

CONCLUSION

52. For the reasons I have set out above, I find that all factual and legal issues relating to the Project are moot and that I will not exercise my discretion to decide them. I will hear the parties as to what may remain of the case and to the form of order to ensue from this judgment – including as to costs and as to directions

34 O'Brien v Personal Injuries Assessment Board (#2) [2006] IESC 62, [2007] 1 IR 328.

Croghan et al v Townbe et al [2025] IEHC 413

for further or amended pleadings.

DAVID HOLLAND 18/7/25

i The list of documents of which disclosure is sought is as follows;

a) All financial records from all companies held by or administered by or directed by Paul Collins or any shareholders of the plaintiff company in

this matter, including any companies that have been dissolved in the past 10 years and all financial etc. records for companies connected to Paul Collins

or Tanya Hennigan

b) All Environmental Impact Assessments undertaken on the site/project, All efforts at public participation in the decision making process in

situating these migrants at this site

c) All Garda vetting undertaken on the staff of the various companies involved in this project, in accordance with the safeguarding legislation,

being that these will potentially come in contact with vulnerable persons in the course of their employment, and on all the migrants proposed to be

housed there

d) All records relating to lobbying efforts on behalf of any company directed by Paul Collins and Tanya Hennigan and Dublin co council or

councillors and any government bodies

e) A detailed breakdown of all financial transactions regarding to the procurement and development of this site

f) All health and safety assessments undertaken on the site and on the structures and machinery

g) A detailed breakdown of the tendering process whereby Mr Paul Collins, Tanya Hennigan and the named company received the contract for

this development

h) A detailed breakdown of the Members of Garda Síochána, Public Order Unit, “protest removal team” Irish Army, PSNI and any other Foreign

Mercenary and or Military and any other contractors who have been on duty, and/ or paid in and around ‘Crown Paints’ and Coolock

i) All indemnity insurance policies relating to the company/companies and their employees/subcontractors

j) The Garda vetting certs and PSA licences of all security personnel deployed on this site

k) Any conflict of interest disclosures made in regards to this development and or the tender process involved

l) Any third party funding received for the development

m) details of all subcontractors, and all suppliers of goods and services to this and other IPAS related projects connected to you or any company

or shareholders involved in this project

n) All planning applications made by any of the named defendants and details of any current or proposed similar developments connected to

the defendants or any of their companies

o) Any health and safety assessments for the site or the companies or subcontractors connected to the site

p) The waste management plan for the site

q) The sustainability studies, cost benefit analysis, etc. regarding this plantation centre

r) The plans to return the site to its previous condition after the plantation centre is removed

s) Any change to the planning and development of the site and its development status, including but not limited to its zoning Z6

Enterprise/Employment and pre-63 status, and any change to the site and its development status before and after this project, and the implications on

the valuation of the site

t) The RSA status at present and the proposed, current and previous speed limits etc regarding the roadway proximate to the site and any

changes to planning prospects of the site pertaining to same that will continue after the migrant centre is removed and the site is returned to its

previous state

u) all revenue statements for Paul Collins, Tanya Hennigan personally and all companies and subsidiaries connected to them or the named

companies in this action

v) Any record of monies paid as a result of the disturbances you allege have been caused by the protests

w) any contact/correspondence have you or your associates had with the Gardaí regarding this matter

x) all contracts of employment for any employees on the site.