High Court allows planning dispute proceedings despite lack of pre-action letter, rejecting strike-out application.

THE HIGH COURT PLANNING AND ENVIRONMENT

[2025] IEHC 546

Record No 2025/ 3059 P Between:

CELIO PROPERTIES LIMITED, KILLROSS PROPERTIES LIMITED, LIFFEY BRIDGE PROPERTIES LIMITED and SPRINGWOOD PROPERTIES LIMITED Plaintiffs

- and -

FINTAN MONAGHAN, TREASA KEEGAN, SAVE CASTLETOWN COMMITTEE COMPANY LIMITED BY GUARANTEE Defendants

JUDGMENT of Ms. Justice Emily Farrell delivered the 15th day of September 2025

Introduction

1. The Plaintiffs are the owners of lands at Castletown, Celbridge, County Kildare, (Folio 3071F County Kildare) adjacent to Castletown House. Castletown House is an 18th Century Palladian house and owned and managed by the Office of Public Works.

2. Green metal palisade gates measuring approximately 7 metres wide and 1.2 metres in height were erected on the Plaintiffs’ lands, across Gay’s Avenue which leads to Castletown House. While the Plaintiffs neither sought nor obtained planning permission for the said gates, permission had been sought for development including the widening of Gay’s Avenue, provision of a 1.5 metre footpath along the Avenue, and the retention of a temporary carpark with provision of a macadam surface and lighting, and the erection of two sets of 2.74 metre high gates, at the northern and southern boundaries of the Plaintiffs’ lands. Kildare County Council issued a split decision, granting permission for the retention of the temporary carpark (without macadam) and refusing the road widening, gates and other elements of the proposed development.

3. The reliefs sought in these proceedings, which were issued on 30th May 2025, include a declaration that “there is no public right of way over the Plaintiffs’ lands at Castletown, Celbridge in the County of Kildare as comprised within Folio 3071F”, an order restraining any person having notice of the making thereof from entering onto the Plaintiffs’ lands without consent, and damages for trespass, slander of title and wrongful interference with the Plaintiffs’ property rights. The Statement of Claim was delivered on 4th June 2025 and a draft amended Statement of Claim has been served but an application has not been made for liberty to deliver it.

4. The first and second named Defendants are the directors of the third named Defendant, and they are the chairperson and the secretary thereof respectively. The third named Defendant is a company limited by guarantee which was incorporated on 24th June 2024 as a vehicle for litigation. Prior to the incorporation of the third named Defendant, the first and second named Defendants were members of an unincorporated community group called “Save Castletown Committee” which had been formed in September 2023.

5. The Defendants seek an order striking out the proceedings under Order 19 rule 28 of the Rules of the Superior Courts or, in the alternative, pursuant to the inherent jurisdiction of the High Court. This application is grounded on the affidavit of Eoin Brady, Solicitor for the Defendants. They accept that the Plaintiffs have a right of access to the courts and that proceedings should only be struck out in very limited circumstances.

6. Prior to the institution of these proceedings, the third named Defendant had commenced proceedings seeking orders under section 160 of the Planning and Development Act, 2000, in respect of the green metal palisade gates which have been erected across Gay’s Avenue. The first and second named Defendants are not parties to those proceedings. The section

160 proceedings have not yet been heard or determined. The third named Defendant maintains that the gates are not exempted development and relies on Article 9(1)(a)(x) of the Planning and Development Regulations 2001, which it submits prevents the gates from being exempted development. Reliance is not placed on Article 9(1)(a)(ix) of the Regulations. The Plaintiffs oppose the grant of relief sought in the section 160 proceedings and maintain that the gates are exempted development, notwithstanding the provisions of Article 9(1)(a)(x). The Plaintiffs seek to rely on the judgment of the High Court in Dennehy v. An Bord Pleanála & Ors [2020] IEHC 239. As appears from para. 6 of the affidavit of Lar McKenna sworn the 25th July 2025, in these proceedings, the third named Defendant seeks to distinguish Dennehy. In Dennehy, Meenan J. held that the Board was required to have regard to the findings of the Circuit Court that there was no public right of way over certain lands and that the Board may not make a decision to the effect that a gate which had been erected was not exempted development on the basis of unlawful public use of the lands.

It was for that reason, he avers, that these proceedings were instituted. The Plaintiffs believe that the feature on which the Defendants rely in seeking to distinguish Dennehy is that the Circuit Court had found that there was no public right of way over the lands in question and that public use of the route was unlawful.

7. The Defendants’ principal argument is that the Plaintiffs have failed to disclose any reasonable cause of action on which these proceedings could possibly succeed and accordingly, the proceedings are bound to fail. Secondly, the Defendants contend that these proceedings constitute an abuse of process and were brought for an improper, or collateral purpose, in that the Plaintiffs sought to prevent the third named Defendant from proceeding with the section 160 proceedings. It is argued that these proceedings undermine the ability of the third named Defendant to access the courts to challenge what it considers a breach of national environmental law in the section 160 proceedings, and that the proceedings have implications for the effective protection of EU law rights.

8. The pleadings and affidavits in the section 160 proceedings have been put before the court in respect of the application to dismiss these proceedings.

Position of the Defendants regarding question of public right of way over the lands

9. The affidavit of the first named Defendant includes the following averment:

“17. By way of context and without prejudice to the foregoing, I say that it is the Applicant’s position that a right of public access has existed since the 18th Century over Gay’s Avenue. However, for the specific purpose of the proceedings herein, I say and believe that aside from the question of any rights of way, it is indisputably the case that the public has enjoyed habitual access over Gay’s Avenue for the last 10 years.

The question of a public right of way over Gay’s Avenue is an issue which is not being pursued in these proceedings.”

10. Mr. Monaghan referred to submissions which had been made to Kildare County Council by himself, on behalf of the third named Defendant, and by the second named Defendant (in her personal capacity) in which they both referred to a public right of way over or along Gay’s Avenue.

11. Mr. McKenna avers in his affidavit sworn on behalf of the Plaintiffs in respect of this application to strike out the plenary proceedings that “counsel for the Defendants indicated on their instructions to this Honourable Court on the Thursday 26 June 2025 that the Defendants shall consent to a Declaration that there is no public right of way over the Plaintiffs’ lands, which I understand to correspond to the Declaration sought at paragraph

(a) of the reliefs sought in the Statement of Claim.” This was disputed at the hearing by counsel for the Defendants, who maintained that consent to the grant of a negative declaration had not been given. It was subsequently accepted by counsel for the Plaintiffs that such consent had not been given. That is consistent with my own notes and the DAR.

12. On 26th June 2025, it had been indicated to the court that the Defendants considered the plenary proceedings to be unnecessary or moot as the existence of a public right of way was not relied upon in the section 160 proceedings. Counsel for the Defendants stated that the defence was likely to be that the Defendants did not claim that a public right of way existed over the said lands and that they were not objecting to the grant of such relief. However, these statements were expressed to be subject to instructions, and the proceedings were adjourned for the Defendants to indicate whether the section 160 proceedings could proceed on the assumption or basis that a public right of way did not exist. Consent to the making of a declaration, whilst sought by counsel for the Plaintiffs, was not given, nor was consent to the making of a declaration in the terms sought by the Plaintiffs given in the open letter dated 30th June 2025, or subsequently.

13. The letter of 30th June 2025 states:

“We wish to confirm that our clients are not litigating the issue of a Public Right of Way in the Section 160 proceedings. We further wish to confirm that we also have clear instructions from our clients that they have no intention (and never had any intention)

of opposing the relief sought by way of “negative declaration” in the Plenary Proceedings.

… our clients are not seeking to establish the existence of a public right of way. Thereby you would have been on notice that you had no need to seek a negative declaration in respect of an issue which was not the subject of any cause of action in our Section 160 proceedings.

… it is clear that the Plenary Proceedings, issued without cause for the reasons set out above, should not have issued and are moot. Accordingly, they should be withdrawn with an order for the Defendants’ costs for having to engage with these unnecessary proceedings. In the alternative, our clients reserve the right to bring an application to strike out the Plenary Proceedings with an order for costs.”

14. Therefore, while the Defendants have not conceded that a negative declaration should be granted on consent, and it was submitted in the application to strike out the proceedings that the claim is doomed to fail, it was stated in open correspondence that the grant of such relief would not be opposed by the Defendants. That does not amount to consent to such a declaration.

15. As counsel for the Plaintiffs has accepted, in submissions, the averment of Mr. McKenna (who was not present) as to what was said in court on 26th June 2025 is not accurate. This dispute arose at the hearing of this application. A corrective affidavit has not been filed, nor was a replying affidavit filed disputing the averment at para. 7, which is no longer relied upon. It is no longer asserted by either side that the Defendants had consented to the making of the declaration sought by the Plaintiffs, and I have considered this application on that basis.

Jurisdiction to strike out proceedings

16. The Defendants rely on Order 19 rule 28 RSC and the inherent jurisdiction of the court and contend that the proceedings should be struck out as they are doomed to fail, and amount to an abuse of process. They say that this is so because the intention of the Plaintiffs in instituting these proceedings was to prevent the third named Defendant from proceeding with its application for relief under section 160 of the 2000 Act.

17. Order 19 rule 28(1) provides that the court may “strike out any claim or part of a claim which:

(i) discloses no reasonable cause of action, or

(ii) amounts to an abuse of the process of the Court, or

(iii) is bound to fail, or

(iv) has no reasonable chance of succeeding.”

18. In considering such an application, the court may “have regard to the pleadings and, if appropriate, to evidence in any affidavit filed in support of, or in opposition to, the application.” The terms of Order 19 rule 28(1) echo the jurisprudence of the Superior Courts in relation to applications to dismiss proceedings invoking its inherent jurisdiction.

19. As noted by Simons J in O’Malley v. National Standards Authority of Ireland [2024] IEHC

500 (para. 7), the distinction between the jurisdiction to strike out and/or to dismiss proceedings pursuant to Order 19 of the Rules of the Superior Courts, and the court's inherent jurisdiction was eroded by the amendment of Order 19. He held that:

“The court hearing the strike out application must be confident that there is no credible basis for suggesting that it may, at trial, be possible for the plaintiff to establish the facts which are asserted in the pleadings, and which are necessary for success in the proceedings. As emphasised in the earlier case law, experience has shown that cases which go to trial often take unusual turns on the facts which might not have been anticipated in advance. (See, by analogy, Lopes v. Minister for Justice Equality and Law Reform [2014] IESC 21, [2014] 2 I.R. 301). It is not enough that the court might be satisfied that the case is a very weak one and is likely to be successfully defended. Rather, the court must be satisfied that the proceedings disclose no cause of action and/or are bound to fail.”

20. The applicable principles, as derived from the earlier caselaw are usefully summarised by Cregan J. in IBRC v. Purcell [2016] 2 IR 83 at para. 83. Whilst this summary pre-dates the amendment of the Rules by S.I. 456 of 2023, I am satisfied that the principles continue to apply. Cregan J. stated:

“The relevant principles can be summarised as follows:

1. the court has jurisdiction pursuant to O. 19, r. 28 and also pursuant to its inherent jurisdiction to strike out proceedings if they are bound to fail;

2. in considering an application to strike out proceedings pursuant to its inherent jurisdiction the court is not limited to considering the pleadings of the parties but is free to consider evidence on affidavit relating to the issues in the case (per Costello J.

in Barry v. Buckley [1981] I.R 306 );

3. this jurisdiction to strike out proceedings is one to be “exercised sparingly and only in clear cases” (see Costello J. in Barry v. Buckley);

4. moreover as McCarthy J. stated in Sun Fat Chan v. Osseous Ltd.[1992] 1 I.R 425, at p. 428 “[g]enerally, the High Court should be slow to entertain an application of this kind”;

5. in addition as was explained by Keane J. in Lac Minerals Ltd. v. Chevron Mineral Corporation (Unreported, High Court, Keane J., 6 August 1993) (and quoted with approval by the Supreme Court) in Supermacs Ireland Ltd v. Katesan (Naas) Ltd [2000]

4 I.R 273, a judge in considering an application to strike out or dismiss a claim must be confident that the plaintiff's claim cannot succeed no matter what might arise on discovery or at the trial of the action;

6. if the pleadings can be amended in such a manner as to save the action then the proceedings should not be dismissed (see McCarthy J. in Sun Fat Chan v. Osseous Ltd.);

7. the court can only exercise a jurisdiction to strike out a claim on the basis that “on admitted facts, it cannot succeed” (per McCarthy J. in Sun Fat Chan v. Osseous Ltd.);

8. the court in considering whether to strike out a claim “must treat the plaintiff's claim at its high water mark” (per Clarke J. in McCourt v. Tiernan [2005] IEHC 268, (Unreported, High Court, Clarke J., 29 July 2005, at p. 12);

9. the burden of proof lies on the defendant to establish that the plaintiff's claim is bound to fail (see Salthill Properties Ltd v. Royal Bank of Scotland [2009] IEHC 207, (Unreported, High Court, Clarke J., 30 April 2009)); and

10. the court should not require a plaintiff to be in a position to show a prima facie case, merely a stateable case, in an application to strike out (see Clarke J. in Salthill Properties Ltd v. Royal Bank of Scotland [2009] IEHC 20.)”

21. Clarke J. (as he then was) noted that there are significant limitations on the extent to which a court may embark on determining factual issues, or complex legal issues in an application to strike out a claim: Keohane v. Hynes [2014] IESC 66, and Moylist Construction Limited v. Doheny [2016] IESC 9, [2016] 2 IR 283. As is clear from Keohane, the credibility of evidence is a matter for the trial of the action and not for an application to dismiss. It is only where it can be established that there is no credible basis for suggesting that the facts are as asserted, and that the proceedings are bound to fail on the merits, that the proceedings can be struck out pursuant to the Rules or the inherent jurisdiction of the court.

22. As Clarke J. stated in Keohane, referring to the judgment of Birmingham J. in Burke v.

Anglo Irish Bank Corporation plc & Anor [2011] IEHC 478, “where there is evidence placed before the court on affidavit on behalf of a plaintiff which, if accepted at trial, might arguably lead to the plaintiff succeeding, then that is an end of the matter.” It does not necessarily follow that a plaintiff even has to put evidence of that type before the court.

23. In summary, the Defendants bear the burden of proving that the Plaintiffs’ case is bound to fail to succeed in their application on this ground. It is necessary only that the Plaintiffs have a stateable, not a prima facie, case when taken at its height. The question is whether the Defendants have established that it is impossible that the Plaintiffs have evidence which, if accepted, would lead arguably to success in the proceedings.

24. Clarke J. also held in Keohane, relying on the judgment of Murray J. (as he then was) in Jodifern Ltd v. Fitzgerald [1999] IESC 88, that the jurisdiction to strike out proceedings as being bound to fail stems from the courts’ inherent jurisdiction to strike out proceedings which are an abuse of process. The Defendants also submit that the motive of the Plaintiffs in instituting these proceedings was to prevent or delay the third named Defendant litigating its claim that the erection of the gates by the Plaintiffs on Gay’s Avenue was an unauthorised development and seeking relief under section 160 of the 2000 Act. I am satisfied that if the proceedings had been improperly instituted, by being bound to fail, or were otherwise an abuse of process, it would be appropriate to grant the Defendants’ application.

The Defendants’ application

25. As I have said, the Plaintiffs seek a negative declaration to the effect that there is no public right of way over their lands at Gay’s Avenue. Other relief is sought, including orders restraining the Defendants and any person having notice of the making of the order from entering on the Plaintiffs’ lands without consent, and damages for trespass, slander of title and wrongful interference with the Plaintiff’s property rights.

26. The Defendants contend that there is no evidence on which the Plaintiffs might rely to support their claimed entitlement to the reliefs sought.

27. Three reasons are advanced by the Defendants as a basis for dismissing the Plaintiffs’ case:

(a) There is no valid cause of action - the case falls outside the limited circumstances in which it is appropriate for the Courts to grant a negative declaration.

(b) That a pre-action letter was not issued to the Defendants before the proceedings were instituted.

(c) By reason of the implications of these proceedings on the exercise of the right of access to the Courts (by the third named Defendant).

A Negative Declaration

28. The Defendants submit that it is not open to the Plaintiffs to obtain a negative declaration in these proceedings. They rely on Ciara Quinn & Ors. v. Irish Bank Resolution Corporation Ltd. & Ors [2015] IESC 29 and argue that, in order to seek a negative declaration, a plaintiff must be faced with a claim in respect of a specific issue where liability is denied. The rationale for such an application, the Defendants accept, is that it is just and equitable that a party in such a situation can bring preventative action seeking a negative declaration in order to safeguard their interest, rather than leave a claim hang over it. They argue that the Defendants do not make a claim that a public right of way exists over Gay’s Avenue.

29. In Ciara Quinn, Clarke J. held that the rationale for the grant of negative declarations is clear. It is to protect a party against whom a claim is made who may be left with the claim hanging over them for a considerable period of time.

30. At para. 11.28 Clarke J. stated:

“a negative declaration cannot be interpreted as a cause of action in itself. A plaintiff who seeks a negative declaration does not claim any redress against the defendant.

Rather, the plaintiff simply wishes to have it established in advance of any claim being brought by that claimant that the relevant claim would necessarily fail. For the reasons which I have addressed, the courts are prepared to entertain such applications because, at least in some circumstances, it might be considered unfair to require the person claimed against to await, perhaps for some time, a claim being brought, and thus have the claim hanging over them. But that does not alter the fundamental position which is that the substance of the claim, even in proceedings involving only a negative declaration, is one where the cause of action lies in the hands of the defendant and the only relief sought by the plaintiff is to deny that a valid cause of action exists.”

31. I do not accept the submission that a negative declaration must be the only relief sought in proceedings, as has been submitted having regard to the judgment of Clarke J. in Ciara Quinn. There is no obvious benefit, whether for the efficient administration of justice or otherwise, of requiring a plaintiff to bring separate proceedings to advance a claim for a negative declaration and any other relief which might be open to it.

32. The Defendants also rely on the summary of the circumstances in which the court might grant a negative declaration in BNP Paribas SA v Trattamento Rifiuti Metropolitani SPA [2020] EWHC 2436 (Comm) (para 78). Cockerill J. stated that the touchstone is utility and that the prime purpose of a negative declaration is to do justice in the particular case, which includes justice to both parties. He also held, referring to Rolls Royce v Unite the Union [2010] 1 WLR 318 at para. 120, that the court must consider whether the grant of declaratory relief is the most effective way of resolving the issues raised, and that there must be a “real and present dispute” between the parties before the court as to the existence or extent of a legal right between them. He cautioned that:

“Factors such as absence of positive evidence of utility and absence of concrete facts to ground the declarations may not be determinative; Zamir and Woolf note that the latter "can take different forms and can be lacking to differing degrees". However, where there is such a lack in whole or in part the court will wish to be particularly alert to the dangers of producing something which is not only not utile, but may create confusion.”

33. Although Mr. Monaghan did state, at para 17 of the affidavit grounding the section 160 proceedings, that “The question of a public right of way over Gay’s Avenue is an issue which is not being pursued in these proceedings”, he referred to the complaint made by Ms.

Keegan in her submission to Kildare County Council that “the gates imped[ed] the public right of way” and “would interfere with the right of way along Gay’s Avenue” and his own submission on behalf of the third named Defendant regarding the “erection of gates impeding the Public Right of Way along Gay’s Avenue”.

34. In the correspondence, dated 30th June 2025 which I have already quoted, the Defendants’ solicitors confirmed that the third named Defendant does not rely on the existence of a public right of way in the section 160 proceedings and stated:

“we also have clear instructions from our clients that they have no intention (and never had any intention) of opposing the relief sought by way of “negative declaration” in the Plenary Proceedings.”

35. In this case, it is admitted that statements have been made by the first named Defendant on behalf of the third named Defendant, and by the second named Defendant in her own right to the effect that a public right of way exists. The evidence advanced on behalf of the Plaintiffs, which has not been contradicted by the Defendants, is that the website of the third named Defendant continues to include the letter of 20th February 2024 in which it is asserted that a public right of way exists over Gay’s Avenue and the basis on which that assertion was made is explained therein.

36. The averment in Mr. Monaghan’s affidavit grounding the section 160 proceedings, sworn the 1st May 2025, that the question of a public right of way over Gay's Avenue is an issue which is not being pursued by the third named Defendant in those proceedings does not amount to an acceptance that a public right of way does not exist. That averment must be considered in light of the entire affidavit.

37. Mr. McKenna has explained the basis on which these proceedings were brought by the Plaintiffs – he avers, at para. 20, that the purpose of the proceedings is to obtain the reliefs sought “so as to clear the Plaintiffs’ title and to prevent unlawful trespass and interference with our property rights.” He also refers to the section 160 proceedings and avers that the

decision to institute the plenary proceedings “was brought to a head by the advice that the third named Defendant had sought to distinguish the decision in Dennehy v. An Bord Pleanála in the section 160 proceedings so that a declaration of a court of competent jurisdiction that there was no public right of way to enter onto our lands was required prior to the determination of the section 160 proceedings.” It is accepted by the Plaintiffs now that it is not necessary for the plenary proceedings to be determined in advance of the section

160 proceedings by reason of the contents of the open letter dated 30th June 2025.

38. The acceptance in inter partes correspondence in the course of these proceedings, and submissions made on behalf of the Defendants, do not necessarily undo any putative harm which the Plaintiffs claim has been caused to them by the Defendants’ statements that a public right of way exists over Gay’s Avenue. Whether or not it is open to the Plaintiffs to obtain a negative declaration in the circumstances is not a straightforward question of law which can be determined in an application to dismiss proceedings as being bound to fail.

Matters such as the utility of the relief sought, or whether the issues between the parties may be resolved in a more effective manner are matters to be considered at the trial of the proceedings. As Clarke J. noted, “the precise parameters of the circumstances in which such [negative] declarations can be obtained have not yet been fully established.” I am satisfied that it would not be appropriate to seek to determine discretionary issues in the course of an application to strike out proceedings.

39. In the circumstances, I accept that the Plaintiffs have sought a negative declaration as a shield rather than a sword, in an attempt to protect their property rights against the statements made by the Defendants and trespass and criminal damage referred to in the affidavit of Mr. McKenna. It is not for me to seek to assess the credibility of the evidence presented or resolve conflicts in the evidence relied upon by the Plaintiffs and Defendants.

I cannot be satisfied that there is no prospect of the Plaintiffs succeeding in their claim for a negative declaration.

40. However, I have already set out the evidence that statements referring to a public right of way have been made by the Defendants. The third named Defendant’s website continues to show a letter asserting a public right of way. It does not appear to me that the Defendants’ submission, that there can be no justification for the Plaintiffs seeking the negative declaration, has been made out. It seems to me that I cannot be “confident that the plaintiff's claim cannot succeed” in the words of Keane J. in Lac Minerals. The Plaintiffs’ motivation is to clear their title by obtaining a declaration that there is no public right of way. As the Defendants have at various times asserted that there was a public right of way, it is not obviously unreasonable that the Plaintiffs have issued the proceedings against them.

41. The very limited concessions made by the Defendants in their solicitors’ letter of 30th June 2025 do not lead me to think that it is necessarily the case that the proceedings are moot, futile or of no utility for the Plaintiffs. The Defendants do not make a forthright admission that there is no public right of way. Rather, they say that they are not litigating such an issue in the section 160 proceedings, and that they are not opposing the negative declaration in these proceedings. It is not unreasonable for the Plaintiffs to take the position that these statements are not as secure and definitive as a court order.

42. I also find it difficult to reconcile the Defendants’ statement that they do not oppose the making of a declaration that there is no right of way but nonetheless applying to have the proceedings struck out as being bound to fail. If they are not resisting the making of such a declaration (as per their solicitors’ letter of 30th June 2025), then logically they cannot seek to bring the proceedings to a halt prior to such a declaration being made. To do so is either a significant contradiction or an unexplained volte face from the statement in the letter of 30th June 2025 that the Defendants “have no intention (and never had any intention) of opposing the relief sought by way of “negative declaration” in the Plenary Proceedings”

and the application to dismiss the proceedings on the ground that they are unstateable or an abuse of process.

43. Needless to say, whether or not the Plaintiffs can establish an entitlement to the orders sought is a matter to be determined at the trial. This is so whether or not the Defendants are opposing the grant of a particular relief.

Other relief

44. The Plaintiffs also seek relief arising from statements made in the section 160 proceedings and other statements made by the Defendants or their agents, in which it was asserted that a public right of way exists over Gay’s Avenue. The Plaintiffs also assert that the Defendants and other persons, including persons represented by the third named Defendant, have trespassed on its lands and encouraged others to do so. It is also claimed that criminal damage has been occasioned to the gates and fence, at least in part, due to the statements made by the Defendants. Specifically, as noted above, the averment of Lar McKenna that the letter of 20th February 2024 (written on behalf of the unincorporated association), in which the existence of a public right of way over Gay’s Avenue was asserted remains on the third named Defendant’s website, has not been refuted, nor is there evidence to the effect that the Defendants have withdrawn their previous public statements or published their concession that no such public right of way exists.

45. Mr. McKenna also gives evidence of trespass and damage to the Plaintiffs’ property, which he says continues. He avers:

“The Defendants, their servants or agents, and those whom the first and second named Defendants represent on behalf of the “Save Castletown Committee”, have wrongfully asserted that the Plaintiffs’ lands are subject to a public right of way and a public right of access, have published and continue to publish their claim that the Plaintiffs’ lands are burdened by a public right of way on the Plaintiff’s lands on their website and social media pages, have obstructed access to the Plaintiffs’ lands and have caused, encouraged and agitated for trespass on those lands.”

“The third named Defendant issued a public statement on the 12th of May, 2025 stating that the section 160 proceedings were issued “to reinstate access via the M4 entrance along Gay’s avenue” as part of “Project Castletown, a campaign focussing on restoring access via M4, reuniting the Demesne, protecting the green belt and pursuing Rights of Way.”.”

46. Insofar as there is dispute in evidence, it is not appropriate for me to seek to resolve it at this point. I am satisfied that if the Plaintiffs establish the facts asserted in the proceedings, and averred in the affidavit of Mr. McKenna, at the trial of the action, it is far from clear that no benefit could be achieved by the grant of the relief sought. In all the circumstances, I cannot be satisfied that that claim is bound to fail.

Abuse of Process - Impeding Access to the Courts

47. The Defendants maintain that these proceedings serve no useful purpose other than to create confusion and to interfere with the ability of the third named Defendant to exercise its right of access to the Courts. They claim that the Plaintiffs ultimately sought to prevent the third named Defendant proceeding with the section 160 proceedings, which it says were brought to protect the environment.

48. As noted above, the first and second named Defendants are the directors of the third named Defendant, and its chairman and secretary respectively. The letter of 17th January 2025 sent to the solicitor for the third named Defendant did refer to the risk of “the Save Castletown Committee and the individual members of the Committee being sued personally for damages in connection with their slandering and defamation of my clients and their property at Castletown.” However, no letter was sent to the first or second named Defendants directly.

49. The Defendants state that, before the plenary proceedings issued, the Plaintiffs were on notice that the section 160 proceedings did not make a claim that there was a public right of way and that the application was exclusively grounded on Article 9(1)(a)(x) of the 2001 Regulations, referring to para. 17 of Mr. Monaghan’s affidavit sworn by. He stated that “the question of a right of way over Gay’s Avenue is an issue which is not being pursued in these proceedings.”

50. In the Statement of Claim, delivered on 4th June 2025, the Plaintiffs plead:

“the third named Defendant has made application pursuant to section 160 of the Planning and Development Act, 2000 in proceedings bearing High Court record no.

2025 /206 MCA in which it filed Affidavits asserting that the Plaintiffs’ lands have been subject to a public right since the 18th century to support the contention that the Plaintiffs’ lands have been habitually open to or used by the public for in excess of 10 years. It is necessary for those section 160 proceedings that the allegation of public right is determined in the above-entitled proceedings.”

51. The original submission made by counsel for the Plaintiffs that it was necessary to resolve the plenary proceedings prior to the section 160 application as the third named Defendant had asserted that there is a public right of way, or right of way over the lands in the section

160 proceedings has been withdrawn. It was argued that section 160 proceedings are not suitable for the determination of such an issue, which is likely to require oral evidence from numerous witnesses and cross-examination. It has now been accepted that, as the Defendants rely only on Article 9(1)(a)(x) and do not assert that there is a right of way over the lands, it is not necessary to determine whether or not there is a public right of way in order to resolve the section 160 proceedings.

52. While a similar plea is contained in the draft amended Statement of Claim served prior to the hearing of this application, counsel reiterated that it is not necessary for the plenary proceedings to be resolved first. Having regard to the statements on behalf of the Defendants, in the letter dated 30th June 2025, that they do not rely on the existence of a public right of way as a basis for contending that the development in issue in those proceedings is not exempted development, the Plaintiffs have informed the court that no application is made for the plenary proceedings to be determined first.

53. The Defendants contend that these proceedings display a number of the indicia of SLAPP proceedings as identified by Humphreys J. at para. 62 of Glenveagh Homes Ltd v Lynch & Anor [2024] IEHC 157. They submit, referring to the judgment of Egan J. in Atlas GP v Kelly [2022] IEHC 443, that the proceedings should be struck out on the basis of domestic principles, and they did not advance any arguments based on the Aarhus Convention, save to note that it is a factor which may be considered in the exercise of the court’s discretion under national law.

54. In Glenveagh Homes Ltd v. Lynch, Humphreys J. stated that:

“Lawsuits designed to silence critics rather than to achieve justice, frequently known as SLAPPs (strategic lawsuits against public participation), are a modern form of abuse of process, and should be struck out at an early stage before generating significant adverse consequences for defendants. On the other hand, the entitlement to litigate in defence of one's rights is guaranteed by common law, the Constitution, the ECHR and EU law. … The law provides that a strike-out order can only be made in a clear case.”

55. The Plaintiffs’ explanation for instituting the proceedings is set out by Mr. McKenna in his affidavit of 25th July 2025. He states, inter alia, that the Plaintiffs were advised that it was necessary to obtain a negative declaration as the Defendants sought to distinguish Dennehy v. An Bord Pleanála. As counsel explained, the sole basis on which they could understand the Defendants’ argument that Dennehy was distinguishable was the existence of the detailed judgment and order of the Circuit Court in which it was held that there was no public right of way over the lands in question.

56. The Plaintiffs may or may not be correct in their belief, at that time, that it was necessary to obtain a negative declaration to meet the arguments made in the section 160 proceedings.

I am satisfied that it is not the function of the Court to determine, in the application to strike out the plenary proceedings, whether the section 160 proceedings could not succeed if there was a court order finding that there is no public right away. The only way to resolve that question would be to decide the very issue that needs to be decided in the section 160 proceedings.

57. In the circumstances, the fact that it had been submitted that the plenary proceedings should be determined ahead of the section 160 is not evidence that the proceedings are abusive or amount to SLAPP proceedings.

58. As I have already found, it cannot be said that the Plaintiffs are bound to fail in the proceedings. There is evidence before the court to the effect that the Defendants have stated in a number of ways that a public right of way exists over Gay’s Avenue, including on the internet, and that there has been a significant amount of trespass and damage to the Plaintiffs’ property, including by the breaking of locks on the gates, and damage to crops.

Furthermore, Mr. McKenna states that the Plaintiffs have incurred costs in seeking to secure their lands, both to prevent unauthorised access and to comply with public liability insurance requirements and that the lands cannot be marketed or shown to prospective purchasers, investors or partners.

59. I am satisfied that while certain indicia of SLAPP proceedings are present, such as certain features of the parties, this is a not a clear case of SLAPP proceedings. I do not consider that the conduct of the dispute displays indicia of SLAPP proceedings, despite the question of the pre-action letter, which is considered below. The letter of 17th January 2025, which was addressed to the solicitors for the third named Defendant did state “please advise your client and its members that any continuation of this behaviour or the initiation of proceedings as contemplated in your letter of 19 December or otherwise, will result in your client, the Save Castletown Committee and the individual members of the Committee being sued personally for damages in connection with their slandering and defamation of my clients and their property at Castletown.” A pre-action letter was not sent to the first or second named Defendants directly, but they are the two directors of the third named Defendant, and are its chairman and secretary respectively. As is clear from the authorities, it is necessary to take a holistic view of proceedings which are alleged to be SLAPP proceedings, and proceedings should only be dismissed as an abuse of process in a clear case.

60. Taking a holistic view of the proceedings, particularly having regard to the nature of the claims made in the proceedings, which I have found are not bound to fail, and the unchallenged averments of Mr. McKenna, I reject the submission that these proceedings were instituted to impede the third named Defendant in seeking relief under section 160.

There is a rational basis for the Plaintiffs to consider that the relief sought is warranted. The Plaintiffs’ right of access to the courts must not be abused, particularly in a manner which would restrict or impede the Defendants from exercising their right of access to the courts.

I am not satisfied that this is a clear case of SLAPP proceedings, or that the proceedings should be dismissed as abusive.

Absence of Pre-Action Letter

61. The Defendants argue that the proceedings should be struck out as a pre-action letter was not sent. They accept that the issuing of a pre-action letter is not in itself fatal to the ability of a plaintiff to maintain proceedings, but contend that where there is no valid cause of action, it is a ground for dismissing the proceedings. The argument advanced by the Defendants is linked to their contention that there is no valid or stateable cause of action and to the Plaintiffs bona fides in instituting these proceedings.

62. For the reasons set out above, I have found that the proceedings are not unstateable or doomed to fail and that they should not be dismissed on that basis. Similarly, whilst undoubtedly it is best practice, and usual, for a warning or pre-action letter to be sent, I do not consider that the absence of such a letter in this case amounts to evidence of a lack of bona fides in respect of the decision to bring, and continue, these proceedings.

63. The Plaintiffs dispute the contention that the proceedings issued without a pre-action letter and they refer to the letter of 17th January 2025 from the Plaintiffs’ solicitor to the solicitor who is currently acting for the Defendants (and who was then acting for Save Castletown Committee CLG). That letter was written in response to a letter from FP Logue Solicitors dated 19th December 2024 which stated that proceedings would be issued by Save Castletown Committee CLG under section 160. The letter of 17th January 2025 included the following statements:

“It is well established that access to Castletown House has been under a controlled/permission-based access regime and has never been habitually open to or used by the public.”

and “Please take note that the members of your client’s organisation and the individual members of the Save Castletown Committee have been involved in a targeted campaign of intimidation, slander and defamation of my clients, their individual directors, and my clients’ property at Castletown over the last 18 months. While, to date, my clients and their respective directors have maintained their silence in respect of such scurrilous behaviour, please advise your client and its members that any continuation of this behaviour or the initiation of proceedings as contemplated in your letter of 19 December or otherwise, will result in your client, the Save Castletown Committee and the individual members of the Committee being sued personally for damages in connection with their slandering and defamation of my clients and their property at Castletown.”

64. The Plaintiffs rely on the judgment of Kennedy J. in Maria Dolores Fernandez Sanchez v Santiago Capital DAC & Ors [2023] IEHC 681 and in particular the statement, at para. 21 that:

“No letter before action was sent. Nor was there any explanation for this departure from basic professional practice. Such an omission would not necessarily, in isolation, establish a lack of bona fides (although it might go to costs or any judicial discretion).

However, coupled with the other concerns noted below, such an approach is consistent with the proceedings not being pursued bona fide.”

65. There were numerous other factors which led Kennedy J. to conclude that those proceedings had not been issued or pursued in a bona fide manner, not least the slow speed at which the proceedings were progressed. He concluded that the third set of proceedings had been issued for strategic reasons, to provide a platform for a lis pendens, to block the sale of the defendants’ land and, he presumed, to obtain negotiating leverage. The absence of a pre-action letter was merely an additional factor which led to the conclusion that the proceedings had not been issued bona fide.

66. I do not consider that these proceedings were issued as SLAPP proceedings or that they amount to an abuse of process. Having regard to all of the circumstances, including the affidavits filed in both these and the section 160 proceedings, I am satisfied that the proceedings were issued for bona fide reasons and that there was a legitimate basis for the Plaintiffs to issue them. Whether the Plaintiffs will succeed in obtaining any or all the reliefs they seek is a matter to be determined at the trial of the action.

Notwithstanding the contents of the letter of 30th June 2025, I do not consider that there is no reasonable chance of the Plaintiffs succeeding at trial.

67. It is not necessary to decide whether the terms of the letter of 17th January 2025 are sufficient to be a pre-action letter in respect of the reliefs which have been sought in these proceedings as the absence of a pre-action letter is not a bar to the bringing of proceedings, nor is the absence of such a letter, or of notice of each relief which was subsequently sought, evidence of the institution of these proceeding as an abuse of process. The section 160 proceedings issued on 1st May 2025, grounded on the affidavit of the first named Defendant. The Plenary Summons issued on 30th May 2025 and was followed swiftly by delivery of the Statement of Claim on 4th June 2025. The Plaintiffs had also filed replying affidavits in the section 160 proceedings, which were listed for hearing on 29th July 2025, but were adjourned in order that the issue of costs protection be determined prior to the hearing of the substantive application.

Conclusion

68. The Defendants seek an order dismissing the proceedings under Order 19 rule 28, or pursuant to the inherent jurisdiction of the court.

69. The jurisdiction to strike out a plaintiff’s claim, whether under Order 19 rule 28, or pursuant to the inherent jurisdiction of the court, is to be exercised sparingly and only in a clear case. I do not consider that this is an appropriate case for the exercise of that jurisdiction.

70. The Plaintiffs and Defendants both have the right to access the courts to vindicate their rights, or to take proceedings to ensure compliance with the planning laws or protect the environment. I reject the contention that these proceedings were issued as SLAPP proceedings or that they amount to an abuse of process. It is only in a clear case that proceedings should be dismissed on that basis.

71. Having considered the matters pleaded, the evidence before the court and the submissions made, I cannot find that there is no reasonable prospect of the Plaintiffs succeeding in these proceedings. Once there is a dispute in the evidence before the court, and that evidence is not clearly unreliable, it is appropriate that such a dispute be resolved at the hearing of the action, with the benefit of such procedures including discovery and cross-examination as may be utilised by the parties. Whether the Plaintiffs will succeed in obtaining any or all of the reliefs they seek is a matter to be determined at the trial.

72. While the letter of 17th January 2025 was addressed only to the third named Defendant, and did not refer to the possibility of seeking a negative declaration, I am not satisfied that the proceedings should be dismissed by reason of the failure to issue a pre-action letter.

73. The Defendants have not discharged the onus of demonstrating that the Plaintiffs’ claim has no reasonable prospect of success, is bound to fail or is an abuse of process. The relief sought by the Defendants in this application is therefore refused.

74. The proceedings will be listed before me on 13th October 2025, on which date application may be made for any consequential orders.

Emily Farrell