High Court dismisses claim that parish land held charitable trust, allowing sale to GAA club.

THE HIGH COURT

[2026] IEHC 103

[Record No. 2024/4959P]

BETWEEN

ST BRIGID’S RFC COMPANY LIMITED BY GUARANTEE

PLAINTIFF

AND

ST LAURENCE O’TOOLE DIOCESAN TRUST COMPANY

LIMITED BY GUARANTEE

AND

THE PARISH PRIEST OF FOXROCK

DEFENDANTS

JUDGMENT of Mr Justice Liam Kennedy delivered on 26 February 2026.

1. These proceedings concern the Foxrock Parish Sports Field, Cornelscourt, County Dublin which, with deference to John B Keane and Richard Harris, I will call the “Field”. The case evokes historic echoes of an evolving and urbanising Ireland. The issue of more immediate interest to the Plaintiff is its claim that, when the then Parish Priest1 of Foxrock and Cabinteeley acquired the Field in 1959, he did so on trust for the children and young people of the parish. The answer to that question will determine the legitimacy of the proposed sale of the Field to Geraldines Patrick Moran's GAA club (“the GAA Club”2). The Plaintiff3, the recently incorporated incarnation of a rugby club4 says that the sale is unlawful because the Field is held on trust; the Defendants5 say that the claim is bound to fail and ask me to strike it out pursuant to O.19 r.28(1)(iii) and/or (iv) of the Rules of the Superior Courts or pursuant to the Court's inherent jurisdiction as being bound to fail or having no reasonable chance of success.

Background

2. The evidence confirms that, having bought the Field in 1959, the parish has made it available as a facility for local sports clubs since then, including the GAA Club from the outset, various soccer clubs over the years and the Plaintiff since the 1970s. Uncontroverted affidavits and contemporaneous documents confirm that: a. in 1959, the PP secured permission from Archbishop McQuaid, Dublin’s long serving Archbishop, to buy the Field to meet the need for land for a hall and “a football and social club” for the “young men” of the parish. After the parish bought the land the plans for the hall foundered on cost grounds but the GAA Club quickly secured parochial permission to use the Field, and a soccer club soon followed suit. The Plaintiff used it from the 1970s.

Canon McMahon. For brevity, I will generally refer to the Parish Priest as the “PP” but of course several individuals served as such over the decades, the most relevant being Canon McMahon, the incumbent at the time of the Field’s acquisition, Fr Leahy, who served during the [1979 – 1981] period when some of the land was subject to a CPO, and Fr Bradley, the current PP. I need not differentiate between the GAA Club and its predecessors, all of whom will be encompassed by the definition. The original Plaintiffs were Messrs Cassidy and Mahon, trustees of St Brigid's Rugby Football Club a previously unincorporated association (established circa 1976) dedicated to the playing of rugby union by primary school aged children. By order dated 21 March 2025 the newly incorporated current Plaintiff replaced the original individual plaintiffs. References to the Plaintiff will encompass its unincorporated predecessors. The First Defendant is a company limited by guarantee and the Field’s registered owner. The Second Defendant is the current PP. Although the Charities’ Regulatory Authority (“the Regulator”) was named as notice party and there was a controversy between the other parties as to whether it should participate in the proceedings, it has played no part. Although both sides referred to it in support of their positions, those arguments did not assist my analysis of the issues, and I need not refer to them further.

b. In 2013 the PP required all clubs using the Field, including the Plaintiff, to sign a code of conduct (the Code) acknowledging, inter alia, the parish’s ownership and control of the Field and committing to comply with its requirements as to its use. c. On 6 June 2024 the First Defendant agreed to sell the Field to the GAA Club, but the Plaintiff seeks to restrain the sale. Although the contract required the GAA Club to allow the Plaintiff to continue using the Field, it objects that the Field was held on trust and the Defendants had no right to sell.

The Pleadings

3. The plenary summons sought, inter alia, declarations that the Field (which has been used by the Plaintiff for over 40 years is held on trust "for the benefit of all the children of the parish for the purpose of providing sporting facilities to those children” and that its proposed disposal was ultra vires and/or otherwise unlawful. The Statement of Claim alleges that: a. The Field comprises playing fields used by sporting organisations with the PP’s cooperation for 65 years for the benefit of children of the parish. The Plaintiff has used it for over 40 years. Its playing members primarily comprise children of the parish and primary students attending St Brigid's National School, with no formal tie to the school. The GAA Club is another user and the Field was also previously used by Brighton Celtic Football Club (“Brighton Celtic”) among other clubs. b. In or about 2013, the use of the Field was formalised in the Code between, inter alia, the PP, the GAA Club, the Plaintiff and Brighton Celtic. The Field has been used on the basis of the Code since then, but it simply codified existing arrangements, recounting that: (i) the Field was acquired to serve the parishioners’ sporting needs, not those of any one club; (ii) it was owned by the parish which controlled its use for the parish’s benefit; (iii) the clubs contributed to its upkeep, paying bills etc.

c. The then PP bought the Field in or about 1959 following, inter alia, representations from a football club, apparently the precursor of Brighton Celtic, which was subsequent the Field’s primary user, Brighton Celtic committed its members to cooperate collecting funds for the acquisition. The then PP accordingly secured approval from then Archbishop McQuaid to buy the "games fields for the boys and young men of the parish". The Archbishop approved the purchase for the purposes of, variously, providing a “parish centre and sports field” and a “playing pitch for the youth of the district and a site for the Parochial Hall".

The Field was bought for approximately IR£4,250 financed by a loan from the archdiocese. d. The repayment of the loan used to buy the Field was significantly facilitated by parishioners through, for example, (i) donations to the parish; (ii) contributions to the parish’s monthly draw and parish collections and (iii) similar activities (para. 17). As a result of the contributions to its purchase and upkeep by parishioners, in particular, parishioners’ contributions to the repayment of the loan, the Field is held in trust for the specific charitable purpose for which it was acquired - the provision of sporting facilities for the children of the parish (paras. 20-21).

Further, with the Defendants’ consent - or, at least, acquiescence - the Rugby and GAA Clubs spent significant resources maintaining and improving the Field. e. The Field’s ownership structure shows that it is held in a trust. The First Defendant’s memorandum and articles show that it was established to act as trustee for properties and investments owned by or used in connection with the diocese, itself an indicator of a charitable trust in respect of the Field for the parish’s benefit (para. 22). f. The Defendants’ conduct in the years after the acquisition demonstrates that the Field is held on trust.

For example (a) when the sale of part of the Field was proposed in 1962, the Archdiocese's lawyers sought the Archbishop's consent "in his capacity as trustee of the property"; (b) when part of the Field was the subject of a CPO in 1981, the Archbishop's office infirmed the Council that it was not in a position to consider selling the rest of the Field due to the need for its continued use as a sports field for the parishioners; (c) in 1983 the First Defendant attempted to avail of a charitable tax exemption from tax otherwise payable in respect of the CPO compensation (para. 24). g.

As its charitable trustee, the First Defendant does not have a power of sale or disposal. Any such disposal would breach the trust’s terms (para.

25) and would require the Regulator’s consent which could only be given if the disposal was within those terms and for the benefit of the trust and the beneficiaries (para. 26). h. In June 2024 the rugby club learnt of the proposed sale. Despite having harmoniously used the Field alongside the GAA Club and other clubs for decades, the rugby club was not consulted. The Defendants and the GAA Club told the Plaintiff that if it wished to continue to use the Field, it should enter into a “side letter” with the defendants and the GAA Club, acknowledging the First Defendant’s "title and right" to "ownership" of the Field, disclaiming "any right or interest" in the Field and acknowledging that its future use of the Field would be at the GAA Club’s discretion, following the transaction (para. 30).

The side letter did not recognise that the Field was held in trust. The Plaintiff refused to sign, as the letter "was untrue and did not accurately reflect the basis on which the Field is held". i. The Defendants subsequently purported to terminate the Plaintiff’s use of the Field. The notice was invalid and in breach of the trust’s terms. The Plaintiff has suffered loss, damage, inconvenience and expense due to the wrongdoing, including a fall in membership. If the transaction proceeds, its 160 primary school age players will have no place to train or play matches.

The Defence

4. The defence joins issue as to the basis on which the Field was acquired and operated, denying the existence of a trust, stating that: a. it has been used by clubs (including the Plaintiff) with the Second Defendant’s imprimatur and licence and not otherwise. (Para. 1). b. In 1959 the land was put up for auction. The GAA Club could not buy it, so an approach was made to the PP on its behalf, asking the parish to buy the land. The club promised "to cooperate in collecting funds" but there was no agreement that if the Defendants bought the Field the GAA Club or any other group or by any parishioners would repay them (para. 5). c. Having secured Archbishop McQuaid’s permission, the First Defendant bought the Field for IR£4,250 and held it on trust for the PP (para. 5). The purchase was not funded as pleaded by the Plaintiff. Fundraising or other activities were for the parish’s benefit and were not intended to operate, and did not operate, as a payment for the Field or the repayment of any part of the loan, or interest thereon (para. 6). The Defendants retained the funds raised on the sale or CPO of part of the Field in 1962 and 1983. No entity, including the Plaintiff, ever claimed a share of those funds. The Field is not held in trust as alleged, and the First Defendant has a power of sale. It does not require the Regulator’s consent (paras. 9 & 10). d. The side letter correctly reflects the basis on which the Field is held. The termination of the Plaintiff’s licence or permission was neither invalid nor in breach of trust.

Contemporaneous Documents

5. The PP’s 13 May 1959 letter to the Archbishop sought permission to bid for the Field;

“My Dear Lord Archbishop,

I trust Your Grace will pardon me if I venture to intrude on your valuable time. I deign to ask your advice on a matter affecting the Parish. A few days ago I received a pressing invitation to attend a briefing from a Football and Social Club in Cornelscourt. The Club is a two roomed cottage. They have eleven teams - all working-class boys and young men - but no playing ground. I was glad to meet these young people, most of whom are out of touch with the clergy. The proposition they made to me was this; a six to eight acre level field nearby is up for auction on the 29th of this month. They think it could be got for between £3 – 5000. Your Grace no doubt knows the place. It is beside some newly built houses (Cunningham Park) between Cornelscourt and Monaloe Cottages and facing Mr McGrath's boundary wall. The Club has not a hope of raising the purchase money. They asked that the field should be taken over as a site for a Parochial Hall and Sports Centre. And they promised to cooperate to the utmost in collecting funds. I only learned of the proposal on Tuesday and have not had time to search into detail. But if Your Grace consents to the purchase, I shall go to work on the project at once. If Your Grace does not approve, I hope you will forgive me for troubling you in this matter. With deepest respect, I remain, my Dear Lord Archbishop, your most obedient servant, Es McMahon"

6. The PP’s 15 May 1959 letter to the Archbishop furnished more commercial detail, predicting that the Field might fetch £3,000–4000, noting the possibility of a future road widening CPO "which would not affect the playing pitch”, but might yield compensation of IR£1,500 – £1,800. The PP suggested that the builder of the new Cornelscourt school could bid for the parish - if the bid succeeded, he wanted some of the land for building.

7. The PP’s 25 May 1959 letter sought approval of a deduction from the parish’s divisible income to defray interest and capital, promising that, if the parish bought the Field, he would ask the senior curate Fr Hurley "to organise collections and run various functions to raise funds to pay off the cost as ‘old age precludes me from such activities’”. However, a simultaneous note informed the Archbishop of a call from the PP expressing concerns that the curates "would not cooperate in relieving the parish of the debt which might be contracted on the field".

8. The Archbishop’s secretary’s 27 May 1959 letter to the PP confirmed that, having legal advice, the Archbishop had granted permission to buy the site "to provide a playing pitch for the youth of the district and a site for a Parochial Hall, the total cost, in your view, being in the region of Five Thousand Pounds". The correspondence noted that a parish centre and sports field could be "of untold spiritual advantage to the boys and young men” adding that, if the bid succeeded, a formal application would be needed to obtain permission for the additional borrowings from both the Archbishop and the Vatican.

9. A 29 May 1959 letter from the Archdiocese’s solicitors, Arthur O’Higgins & Son (“AOH”), confirmed the purchase of the Field for IR£4,250.

10. An 8 June 1959 note to the Archbishop from the Diocesan Secretary noted the PP’s formal application "for leave to borrow an extra £4,675 over the present-day overdraft of £1,134" being for the eight acre Field” and his further note dated 11 June 1959 noted the PP’s concern about his curates’ lack of zeal in reducing the presbytery debt (attributing their apathy to the appointment of extra curates and the non-provision of carpeting), but concluded that "a parochial debt of £6,200 does not seem unduly high and ought to be reduced if certain building sites are eventually disposed of under [AOH’s] guidance".

11. The notes of an August 1959 GAA Club Committee meeting confirm that the PP granted the GAA Club permission to play on the Field and the Committee duly decided to mark out a pitch and erect goalposts. The club history confirms that it started to play at Fatima Park in 1959, as does a contemporaneous Dublin Post article which recorded that the new ground “cost the parish £4,500. To try to clear this debt, there is a weekly parish draw."

12. The parish hall plans stalled whereas the GAA Club and then a soccer club began to use the Field. The PP’s handwritten 1 December 1959 letter to the Archbishop noted that the construction cost (IR£14,000) could increase parish debt to c£20,000, a “shocking cost” which might take 14 years to pay off. Parish resources comprised; (i) a monthly draw; (ii) c£3,000 previously collected for a parish hall; (iii) a possible grant for the erection of a hall. There was no reference to specific fundraising by any club.

13. A note from the Diocesan Secretary to the Archbishop dated 3 December 1959 noted that the parish debt (post-acquisition) was IR£4,894 and that the cost of the parochial centre was too high. It recorded disappointing results of the previous draw and that the PP “correctly estimates that the upper income people will hardly subscribe to the project". The note canvassed cheaper construction options since the estimated IR£14,000 would take the parish debt to virtually IR£20,000, which “would be a weight on the parish".

14. A 3 December 1959 memo from the Diocesan Secretary to the Archbishop, agreed that the proposed construction cost was excessive and outlined alternatives. The memo queried whether Foxrock would qualify for a grant "if it is not presently classed as rural".

15. A handwritten note, presumably from Archbishop McQuaid himself, states “let him wait a little, he wants me to decide, which I will not do."

Later correspondence

16. A handwritten letter apparently to the Diocese from the PP dated 30 June 1961 requested the archdiocese’s assistance in helping the parish priest "to solve” an issue: "… about 2 years ago I got permission to purchase a field here, of about 8 acres as a games Field for the boys and young men of the Parish. … I also got out plans for a parish hall on the site - these I submitted to His Grace but the Archbishop considered the cost excessive and nothing further was done. Father Hurley kindly looks after the teams that use the pitches. The one great deficiency in the Field is that there is no building on it in which the players could wash and dress. The cost of the Field was … about £4,500 in all. Father Hurley has just received an offer from a speculative builder to buy about 2 acres fronting the road for about £3,000. The football grounds behind the proposed houses would remain church property. The object of this letter is to obtain permission to sell the frontage,” The PP accordingly sought permission to sell part of the Field for IR£3,000, noting that the then parish debt was IR£3,841 (mainly for the presbytery and the Field).

17. A July 1961 memo to the Archbishop from his secretary noted the request for authorisation to accept the offer of £3000 for the frontage, stating "the offer is good, since the parish paid only £4,500 for the whole field. The parish debt was £3841, mainly for work on the presbytery and sports field”. The PP seemed to envisage building a pavilion with the proceeds. A handwritten note, presumably from the Archbishop, confirmed his agreement subject to AOH’s agreement.

18. AOH’s 6 February 1962 letter to the archdiocese confirmed the sale of the frontage for IR£3000, enclosing documents for signature by the Archbishop as he and the PP, were “the trustees of the property”. There was no reference to a charitable trust.

19. A 23 October 1979 letter from the then PP, Fr Leahy, responded to a query about the acquisition of the Field confirming that, as he had no documents, he would check with AOH who probably had charge of the purchase. He set out his understanding subject to that proviso: “As far as I know this is what happened. In the 1950s before the big expansion here there were moves to build a community centre and acquire playing pitches for outdoor games. Money was collected in the parish for this purpose. The land in Cornelscourt was acquired but I do not know the price. The land adjoined the main Bray Road and later on in the 60s the portion adjoining the Bray Road was sold and a row of houses called Cunningham Park built upon it. There are still over 8 acres. On this there are full size Gaelic and soccer pitches and a small boys football pitch. The land is now used by the local GAA club, Geraldine's, and Brighton Celtic AFC we have a senior team as well as a great number of boys teams. The land is about 400m from St Brigid's School and is used by the children for football, hockey, athletics and is a wonderful asset to that school. A few years ago there was a proposal to build a new St Brigid's school on the site but there was strong opposition locally and the Department was not enthusiastic because of the traffic. At the time I consulted our solicitors. I have a letter stating that the Field is church property and can be used or sold as the church wishes. However, I must say I feel there is a moral obligation to retain the Field for sports purposes on account of the manner in which the purchase money was originally obtained. The new Bray road will take 2 acres of the field on the site been officially notified this is so.”

20. A 26 October 1979 letter from AOH to Fr Leahy confirmed that the parish trustees bought the field in 1959. His 29 August 1981 letter to the Archdiocese expressed disappointment at the news that the Council only needed part of the Field for road widening.

He observed that as far as the rest was concerned

"we must either give this land to the County Council on the understanding they will be maintained as a sports fields for the present users in return for which we would hope to have their goodwill and the goodwill of the people or else retained as a maintainer for our clubs and school knowing that we have an asset that might at some future date be realised for the benefit of the parish and the diocese."

21. The Archdiocese’s 26 November 1981 letter to estate agents instructed them as to the approach to the CPO negotiations: "with regard to the rest of the Field we feel you might indicate to the local authority that the parish is not in a position to consider selling this due to the requirement for continuing use as sports Field for the parishioners."

22. AOH correspondence confirmed that c1983 Dublin City Council acquired c2 acres of the Field pursuant to a CPO - paying £120,000.

Payment of Rent

The Defendants exhibit sample documentation evidencing the GAA Club’s payment of rent to the parish over the years, resting with a note dated 7 May 1993 from the then PP returning a payment on the basis that "no such rent is due".

Conditions of Sale

23. The Plaintiff relied on clause 12 of the conditions of sale for the proposed transaction, which concerned CGT, requiring the purchaser to acknowledge that a CG50 clearance form was not required as the sale was a disposal by a charity - the vendors were selling as trustees of the schools and parishes of the Catholic diocese “registered charity no 20016166”.

The First Defendant’s Constitution

24. The First Defendant’s constitution confirmed that its principal object is to "act as trustee the property and investments of every kind by owned by or used by or in connection with (i) the Roman Catholic Church Archdiocese of Dublin, (2) specified charities associated with the Archdiocese, (iii) a diocesan trust (as defined the article),

(iv) the parish trust as defined in the articles), or held to be held in trust by Indian for mention charities for any charitable person purpose whatsoever”.

The 2013 Code

25. The Code is worth setting out in full:

“CODE OF PRACTICE - FOR SIGNATURE BY ALL PARTIES 30/1/2013

FOXROCK PARISH CONTINUES THE AGREEMENT WITH FOXROCK GERALDINE P

MORAN'S GAA CLUB, BRIGHTON CELTIC FC, ST. BRIGID'S RUGBY CLUB AND FOXROCK CABINTEELY GAA CLUB USING THE FOXROCK PARISH SPORTS FIELD ('THE FIELD') CORNELSCOURT FOR THEIR VARIOUS SPORTS. The parish sports field in Cornelscourt was acquired many years ago to serve the sporting needs of parishioners (at the time Foxrock and Cabinteely were one parish). Foxrock Parish wishes to reaffirm its ownership of the Sports Field and its absolute right and discretion to control its usage for the benefit of the parish. Foxrock parish acknowledges the contribution the sports clubs make to parish life and to the wider pastoral area. We appreciate also the dedication of the clubs’ committees. The following needs to be continued to be taken into account;

1. No other user is permitted to use the Field without written permission from the parish priest of Foxrock (Father Frank Heron)

2. No further expansion of current club usage on the field.

3. Due to safety, insurance, planning, absolutely no lights to be used on the pitches

4. Consideration to be given to car parking away from the fields of play.

5. No abusive language towards anyone on the field.

6. Respect for various neighbours and their property.

7. Work towards securing the field from unauthorised entry.

8. Field to be maintained by clubs, including maintaining and cutting non-playing areas. We suggest a shared fund among clubs for the upkeep of the field.

9. No further development, construction, placement of containers on the field without written agreement of the Foxrock Parish.

10. Clubs to work towards cooperation to modernise and refit permanent dressing rooms.

11. Sharing of electricity/water bills to be agreed among clubs relative to usage.

12. Every December each club is asked to write a summary of the club’s activity, contact details, substantive issues etc. Also to present a copy of the club's current relevant insurances -public liability, child protection policy etc and send them to the Chairperson of the parish Finance Committee.

13. Entry to the field to be secured appropriately, with a set of keys to be given to each club and the parish itself.

14. A sign with the name of the field, has been erected at the entrance.”

26. This was signed by the secretary or chairpersons of the GAA club, Brighton Celtic Football Club, St Brigid's RFC Foxrock Cabinteely GAA and the PP.

Inter Partes Correspondence

27. The key inter partes correspondence was as follows: a. on 17 July 2024 the Defendants’ solicitors wrote to the Plaintiff’s solicitors inviting them to explain their client’s concerns and to propose amendments for discussion with the GAA club to satisfy the Defendants that "their long-term interests, with regard to the current use in respect of the Field, would be preserved".

b. On 18 July 2024 the Plaintiff’s solicitors replied that: (i) there was a charitable trust to enable the property "to be used to provide sporting facilities for the children of the parish, whether playing GAA sports or otherwise;” (ii) their client had obtained senior counsel’s opinion expressing the view that the property was held on such a trust; (iii) the PP was a charitable trustee with no power of sale, so the transaction was outside the trustee’s powers; (iv) the Regulator’s approval would be required.

28. On 22 July 2024 the Defendants’ solicitors responded: (i) noting that there was no trust on the title; (ii) requesting sight of the opinion to understand the assertion of a trust.

29. On 24 July 2024 the Plaintiff wrote to its members, stating that the Field: "is in the ownership of a trust of the Catholic Church, the St Laurence O'Toole Diocesan Trust under Foxrock Parish (at that time Foxrock and Cabinteely were one parish). St Brigid's Boys school is in Foxrock Parish, but both the boys and the girls schools come under Cabinteely parish I am told. The Foxrock Parish Sports Field has always been for the use of the children of the parish and from our perspective has been used and enjoyed by our members for almost fifty years.”

The letter suggested that

"if Foxrock Parish no longer wish to maintain ownership of the Parish Sports Field, then it should be passed to the current users to serve the sporting needs of all parishioners of the parish".

30. On 26 July 2024 the Plaintiff’s solicitors responded to the 22 July letter, saying that the Field was bought with monies raised by parishioners to provide sporting facilities: "The monies were given to the Parish Priest who purchased the Property, and that is the basis upon which the Property has been used since its acquisition. That would indicate that the Property is held on foot of a trust. … Manifestly, it is the case it was held by the original purchaser and held by the St Laurence O'Toole Diocesan Trust upon trust. Given that it is for the benefit of the community with monies raised by the community one would say that it is a charitable trust, not least because obviously there the religious element of the parishioners having purchased the property.” The letter reiterated that there was a charitable trust as the Field’s purchase was funded “by donations from the various parishioners for the purpose of the acquisition of same to provide what might be termed recreational facilities for the parish in particular the children of the parish attending the local schools." The letter did not respond to the request for a copy of the opinion from senior counsel.

31. On 2 August 2024 the Defendants’ solicitors issued a detailed rebuttal of the assertion that there was a trust, referring to the history of the acquisition and providing contemporaneous documentation to refute the Plaintiff’s suggestion as to how the acquisition was funded: a. it was paid for by a bank loan6 which the parish took out with the Diocese’s consent. A monthly draw defrayed parish expenses, including reducing the overdraft but it was not solely devoted to collecting money from parishioners for the Field. b. The GAA club was the principal intended user of the land envisaged in 1959 - it was only in the late 1970s/early 1980s that the Plaintiff was permitted to use it. c. The intention of building a parochial hall was never realised due to the cost. d. Foxrock parish reduced its debt to IR£3,841 by 19 July 1961 through normal fundraising activities following which the sale of the frontage for IR£3,000 largely eradicated the debt. The sale of two acres to Dublin City Council for IR£120,000 further evidenced the Defendant's right to dispose of the lands, keeping the proceeds. e. The parish made the Field available for sporting use by specific clubs, including the Plaintiff, "but always subject to the absolute right entitlement of the parish to exercise full control of the Property, and to decide how same was to be used and by whom.” The Code (signed by the Plaintiff) inter alia reaffirmed the parish's ownership and absolute control of the Field. f. The PP’s 1 December 1959 letter did not suggest that the parish resources included significant monies raised by the GAA club or others for the express purpose of paying for the property and the Defendants were not aware of any such monies having been raised then or later.

There was confusion on both sides as to whether the parish borrowed the cost of the field from the archdiocese or sought approval to increase the parish’s bank borrowings to cover the cost. The Diocesan Secretary’s 8 June 1959 note to the Archbishop suggests the latter. Nothing turns on that point – either way, the parish borrowed to buy the Field.

Accordingly, the Defendants’ solicitors denied any charitable trust.

Michael Sinnott’s Affidavit

32. Mr Sinnott was 83 at the time of his affidavit, still residing in his childhood home in Cornelscourt. In his youth he was involved in both the Parish Finance Committee and the GAA club, as secretary of the latter’s social club (its fundraising wing). He confirmed that there was no intention to create a trust and that any parish fundraising was for the Parish generally rather than specifically for the Field. His affidavit records his involvement in the parish and in respect of the Field from the outset: a. he was an avid GAA player from his schooldays on teams including Colaiste Caoimhin (now Oatlands College), Stillorgan. After going to school in Wexford, he regularly returned to play with the GAA Club. By 1959, he was 17 and regularly playing football and hurling with the club which had no grounds at that time. b. He recalls the background. By 1958 the owner of the land, then named Cunningham Park, was looking to sell the land which comprised circa eight acres and was primarily used for grazing cattle. It had not been used for sporting purposes. c. At that time the tradition was that the local parish priest was the president of the GAA club. Canon McMahon was elderly so one of his curates, the eponymous Fr Hurley, acted in his stead. In 1958, under the chairmanship of a businessman, Brian Nolan, the GAA Club explored ways to buy the Field, but it didn’t have the money. The Foxrock parish fundraising committee’s "non-stop draw" had raised circa IR£3,000 to fund the construction of a parish hall. Mr Sinnott recalls a meeting in 1958 at which Mr Nolan unsuccessfully sought to persuade the fund’s trustees to buy the Field. After the latter proved unwilling, the Club approached the PP.

d. The latter’s 13 May 1959 letter to Archbishop McQuaid recorded the club’s approach to encourage him to buy the Field as a site for a parish hall and sports centre and the applicants’ promise "to cooperate to the utmost in collecting funds". While he was not personally privy to the approach, Mr Sinnott confirms that it was made by the GAA Club and that the "football and social club in Cornelscourt" referred to in the PP’s letter must have been the GAA Club (not a soccer club as the Plaintiff had assumed) because:

(i) he was the GAA social club secretary at the time and personally involved in its fundraising. (GAA rules restricted fund-raising activities, so the separate "social club" organised dances and other fundraising activities);

(ii) The PP’s reference to the club’s “two roomed cottage" meant the cottage on the Bray Road adjacent to Cornelscourt, which the GAA club used as its clubhouse. The reference to eleven teams, but no playing ground matched the GAA club’s then status and the reference to the club having "not a hope of raising the purchase money" aligned with its failure to persuade the parish draw committee to buy the Field; the club had no other way to raise the money.

(iii) The promise "to cooperate to the utmost in collecting funds" represents Mr Sinnott’s recollection.

(iv) By the time of the auction, it was common knowledge in the GAA Club that the archbishop had given approval for the parish to bid. e. After the parish bought the Field, a sign was erected recording its ownership by the parish as the designated site for its hall. Cunningham Park was christened “Fatima Park”. The initial sign made no mention of playing fields.

f. In August the GAA club secured Fr Hurley’s permission to erect GAA posts and to mark out a pitch. Mr Sinnott – a man of many parts - was also the GAA club committee’s acting secretary. Having hired mowers, he and a colleague set to work the following weekend to render the Field playable. He and his colleagues erected GAA posts. A full-sized GAA pitch was laid out, with an area set aside for anticipated use for soccer, camogie, juvenile football and hurling. g. He recollected the Club's first game at the Field on 30 August 1959. The pitch was regularly used thereafter. The GAA club paid an annual rent of IR£20. The rent never increased, and the parish ceased looking for it in the 1990s. As for the cost:

(i) the parish bought the Field at auction for IR£4,250 and in 1962 it sold a strip to a builder for IR£3,000. Subsequently Dublin City Council obtained two acres by CPO, paying IR£120,000.

(ii) At the time Mr Sinnott, then in his late teens and early twenties, was also a member of the church finance committee and its treasurer. The GAA Club assisted the parish in setting up a second "non-stop draw"

to assist with fundraising. The GAA club was one of the main

promoters, selling tickets as did others, including other parish

committee members. The GAA club, the main user of the Field, also helped run an annual sports day to raise funds.

(iii) All such additional fundraising activities were organised for and on behalf of the parish. Funds raised were parish funds, used in part to reduce its borrowings. At no stage were the additional fundraising activities intended to be used solely to defray the purchase cost of the Field. Nor were they intended to operate as a payment on behalf of users of the Field such as to give users a beneficial interest in it.

h. In this period from 1959 to the early 1970s (at which stage Mr Sinnott’s involvement reduced) the understanding of all concerned was that the Field was acquired beneficially and solely for the parish, initially with the intent to use it in part as a site for a parish hall (which could not be achieved due to a shortage of funds) and so that it might be made available by the parish to the GAA club and others at the PP’s discretion, and subject to his permission and to an annual rent. i. Soon after the GAA club started to use the Field, a soccer pitch was marked (on land later acquired by CPO).

While soccer was to be the priority for that pitch, it was also to be used for camogie, juvenile football and hurling. Cabinteely Celtic was the first soccer club to use the pitch, doing so from late 1959 until the early 1960s. Subsequently another soccer team used the pitch until about the early 1960s, also paying the parish £20 per annum. Another soccer club, Carrick Rovers used the Field from the early 1960s until the early 1970s. Brighton Celtic was formed in the mid-1960s as an adult football team, using the Field for almost 40 years. j. Mr Sinnott had no recollection of rugby being played on the Field between 1959 and the early 1970s when he became less involved in the GAA Club. k.

After the CPO, the remaining land was reconfigured to provide two non-full-size pitches, one for GAA and one for soccer and juvenile GAA. l. In response to the Statement of Claim Mr Sinnott confirmed that; (i) the GAA club (rather than Brighton Celtic) made the original approach the PP; (ii) the GAA club’s precursor was the Field’s initial user and used it extensively from the outset; (iii) it was subsequently used by soccer clubs including Brighton Celtic; (iv) as far as Mr Sinnott is aware, there were no commitments from Brighton Celtic’s precursors to cooperate in fundraising but their members contributed to the draw on an individual basis; (v) any commitments were offered solely by the GAA club and the proposed fundraising was to assist the parish to meet its needs, not specifically to defray the cost of the Field.

There was no intention that funds raised would be intended to be used in support of a subsequent claim for existence of a charitable trust. Fundraising activities were arranged and organised by the parish at all times, albeit assisted by the GAA club. Mr Sinnott has no recollection of Brighton Celtic contributing to fundraising. All fundraising was solely for the purpose of assisting the parish and organised through the parish and not for the purpose of supporting claims for the existence of a trust as contended. During Mr Sinnott’s involvement, the GAA club paid the nominal rent and tended to the Field’s upkeep. m.

Based on Mr Sinnott’s knowledge as a member of both the GAA club and of the parish finance committee and as then parish treasurer, neither the upkeep of the Field nor the fundraising activities were intended to create or support a charitable trust for the provision of sporting facilities for the children of the parish. All fundraising was for the parish’s benefit to defray parish expenses, including reducing debt, partly due to the purchase of the Field. He recollects that "Foxrock parish was at all times regarded by all users of the Field, from 1959 onwards as the absolutely legal owner of the Field, free to do with it as it wished, but which was willing, subject to its prior consent and permission, to permit sports clubs approved by it to use the land for sporting purposes on payment of a suitable rent and subject to agreement to assist in the upkeep of the Field, and subject to whatever other terms and conditions the parish felt appropriate to impose.

The parish at no time held the Field subject to a trust to the hold the lands ‘for the benefit of all the children of the Parish of Foxrock for the purpose of providing sporting facilities to those children’ as contended for by the plaintiffs."

Mr Murphy's Affidavit

33. Mr Murphy is a current member of the Foxrock Parish Finance Committee, having served thereon for more than 20 years. His affidavit confirmed that:

a. he was 70 at the time of his affidavit, having lived locally since 1987. A Gaelic football player in his youth, he was familiar with the GAA Club’s use of the Field and also knew that, from the 1980s onwards, the parish permitted mini and junior rugby to be played on the Field by the Plaintiff’s predecessors. Before July 2024 he had never heard it asserted that the Field was held subject to a trust as asserted by the Plaintiff. To the contrary, he knew it was owned by the first named Defendant for the PP’s benefit and subject to the latter’s directions. b. During his time on the finance committee, Foxrock parish alone controlled and regulated the Field’s use. In particular, it intervened when unauthorised users sought to use the Field to regulate or prevent such use. Concerns arose in 2012/2013 after Brighton Celtic erected floodlighting without permission and when users placed storage containers and other facilities on the Field without permission. This led to the Code:

(i) the PP directed the Parish Finance Committee to prepare a document to be signed by all users of the Field to confirm the parish’s beneficial ownership and its authority to regulate it and requiring users to commit to comply with all directions in relation to the use of the Field. Mr Murphy and the Finance Committee chairman engaged solicitors to draft the Code.

(ii) The Code was distributed to sporting clubs including the GAA club, Brighton Celtic, and the Plaintiff who were advised that they were required to sign it to acknowledge Foxrock parish’s ownership of the Field and its absolute right and discretion to control its usage for the parish’s benefit. Mr Murphy witnessed its signature by all parties, including the Plaintiff.

(iii) Subsequently, after Brighton Celtic failed to comply its right to use the Field was terminated. No party suggested that the parish was not entitled to terminate their use of the Field or that a trust existed. c. In 2024 the parish decided that its wish to ensure the Field would continue to be made available for sporting usage would be best served by granting a long lease to the GAA Club subject to requirements to use the land only for sporting purposes and to permit current users, including the rugby club, to use the land for sporting purposes as exercised at the date of the lease. The parish's right to enter into such an agreement is consistent with its rights as confirmed by the code.

The PP’s Affidavits

61. Fr Bradley is the current PP. His first affidavit notes that he consulted with the Parish Finance Committee to check the historical position and that: a. the Finance Committee, inter alia, monitors the stewardship of parish assets with the PP. Such assets include the Field which, since 1959, the parish made available for use by sporting clubs connected to the parish "but always subject to the absolute discretion, permission and control of the parish". b. In 2023 his predecessor as PP and the Parish Finance Committee decided that their wish to ensure the Field’s long-term future sporting use the would be best served by granting a long lease to the GAA Club, subject to the latter’s agreement to allow other users, including the Plaintiff, continued access. The parish was satisfied that the GAA Club had the governance and other structures in place to ensure that the Field would be appropriately used and controlled. Facilities required investment which the parish could not provide and the GAA Club was the most significant user in terms of usage and numbers and had been using the Field since 1959.

c. Before commencing negotiations, the finance committee researched the background to the Field’s acquisition, confirming that the parish bought it in 1959 with the benefit of borrowings subsequently repaid by the sale of part of the Field. It also confirmed the parish's understanding that there was no trust or legal impediment which might affect the parish’s right to proceed with the transaction. d. Responding to the claim that the repayment was “facilitated" by parishioners’ donations and contributions, Fr Bradley states that the loan “was repaid in large part, from the proceeds of a compulsory purchase by Dublin County Council of adjoining lands as explained in the letter of 2 August 2024.” e. He noted the absence of factual matters required to establish the existence of a charitable trust including a public declaration of the trust concerned.

Particulars and Conditions of Sale

62. Fr Bradley exhibited particulars and conditions of sale in respect of the proposed transaction, noting the Plaintiff’s reliance upon clause 8, concerning capital gains tax, requiring the purchaser to acknowledge that the vendors are selling "as trustees of the Schools and Parishes of the Diocese of Dublin (R.C.) registered charity number 20016166” and that a CG50 clearance form was not required as the sale was a disposal by a charity subject to s.69(1) of the Taxes Consolidation Act 1997.

Mr McKenna’s Affidavit

63. A short affidavit from Felix McKenna, a director of the First Defendant, confirmed the First Defendant's perspective which aligned with other affidavits on the Defendants’ behalf, stating that while the First Defendant is the legal owner of all property held by the Archdiocese, it was a trustee, holding assets for the benefit of the PP of the relevant parish, in this case the Foxrock PP, and it had never previously been asserted that the Field was held on trust as alleged by the Plaintiff.

Mr Cassidy’s Affidavits

64. Morgan Cassidy, one of the Plaintiff’s directors, swore two affidavits. He is its current chairman, having been a volunteer administrator and coach since 2014. His affidavits contained little direct evidence and sought to draw assertions and inferences. Much of his affidavit comprised matters for argument and submission. The following points emerge from his first affidavit: a. para. 24 summarised the claim that the Field is held in a charitable trust, emphasising that (a) its purchase was contributed to and/or facilitated by parishioners; (b) the ownership structure under which it is held; and (c) the purpose for which it was acquired. Para. 26 stated that it was acquired both with the use of parish funds and a loan secured with the Archdiocese’s approval and para. 27 stated that the loan repayment was facilitated by parishioners through parish donations, a monthly parish draw and collections etc. b. Paras. 46 to 56 refer to contemporaneous documents from the Defendants’ files, suggesting that they are consistent with a charitable trust. For example:

(i) The 1959 correspondence from the Archdiocese confirmed support for a parish centre and sports field as "of untold spiritual advantage to the boys and young men", authorising the purchase to provide "a playing pitch for the youth of the district and a site for the parochial hall".

(ii) A letter from Canon McMahon to the Archbishop two years later referred to his having received permission to buy the "8 acres of games fields for the boys and young men of the parish…"

(iii) Correspondence between the then parish priest Fr Leahy and the Archdiocese in 1979 referred to the "moral obligation to retain the Field for sports purposes on account of the manner in which the purchase money was originally obtained".

(iv) Likewise on 29 August 1981 Fr Leahy wrote to the Archdiocese observing that the Field could only be demised on the understanding that it would be maintained as a sports field for the present users and the goodwill of the people, maintaining it for the clubs and school and for the benefit of the parish and diocese.

(v) The Archdiocese wrote to the Council on 26 November 1981 stating that the Field could not be sold due to the “requirement” of continuous use as a sports field for the parishioners. c. At para. 63 of his affidavit Mr Cassidy took issue with Fr Bradley's description of the Field as a parish asset commenting that since the First Defendant owned the Field, it did so as a trustee for the parish and for the parishioners’ benefit so any sale would require the distribution of the proceeds to parishioners unless Fr Bradley was the beneficial owner, entitled to use the proceeds as he saw fit. d.

At para. 65 Mr Cassidy challenged Fr Bradley’s explanations as to how the loan was repaid, suggesting the Defendants had not produced documentary evidence supporting their averments, thus acknowledging that some of the loan was repaid in other ways, including parishioner contributions and the parish draw. e. Paras. 71 and 72 of the affidavit summarised the Plaintiff’s case, emphasising the purpose for which the Field was acquired was to provide a sporting field for the parishioners (although the Defendants would point out that it was also to provide land for a parochial hall).

It said that when the purpose for which the Field was acquired is taken into account, alongside the fact that the parishioners contributed to the loan repayment, and the ownership structure in which the Field is held, and the First Defendant's governing documents, the case that the Field is held on trust for the parishioners’ benefit was “unanswerable”. f. The affidavit explained why the Plaintiff’ considered the side agreement unacceptable (including concerns about GAA's rule 5.1 preventing other sports from using GAA facilities). g. Para. 83 quoted remarks made by Bishop Roche, Dublin’s auxiliary bishop, at a Rugby Club information evening which Bishop Roche attended "in a personal capacity and not as a representative of the diocese".

He was quoted as having said that he was “a trustee" of the Field and that when the proposal was put to the trustees it “seemed like a good idea". The trustees were told that nothing would change for other clubs, but he was not aware of the rule 5.1 issue. h. Mr Cassidy's affidavit reserved the right to test the Defendant’s affidavit evidence by cross examination and/or rebuttal evidence and said that the need to do so was fatal to the application. i. At para. 101 Mr Cassidy said that the Plaintiff’s case that the Field is held in a charitable trust for the parishioners and that it accepts that “Foxrock parish and its parishioners were at all times regarded by all users of the Field from 1959 onwards as the beneficial owner of the Field, but the first and second defendants (as trustee for the parishioners) are not free to do with it as they wish.

The trustees must regulate the use of the Field for the benefit of all parishioners”. j. Para. 102 suggested that the proposed disposal effectively confined the Field’s future use to GAA activities which is inconsistent with the basis for its acquisition and with its consistent use by sporting organisations. Mr Cassidy also noted that, although Mr Sinnott gave the impression that the GAA club was generally the Field’s primary user; (i) a 12 January 1981 letter from the Parish Finance Committee to Archbishop's house suggested that the Field was mainly used by Brighton Celtic (but he did not exhibit the letter); (ii) in 1983 when the possibility of a new pavilion was canvassed, the approach was to the Brighton Celtic, suggesting it was taking the lead role at that time.; (iii) the only building on the Field belonged to Brighton Celtic.

65. A further affidavit from Mr Cassidy reiterated previous averments and submissions, also arguing that the side letter could not be trusted as it contravened GAA policy (rule 5.1 banned the use of its grounds by other codes).

Fr Bradley’s supplemental affidavit

66. Fr Bradley’s supplemental affidavit stated that: a. the Plaintiff misunderstood the meaning of "parish" and the Archdiocese’s structure (in its references to assets being held on the parish’s behalf), incorrectly equating the “parish” and "parishioners" and wrongly assuming that because the First Defendant is a company with charitable status, a charitable trust had been created between it and the parishioners. (Para. 5) The parish was entrusted to the PP who runs the parish, including the church, any Parochial Hall and other parish assets, while attending to the congregation's spiritual development. The First Defendant legally owned Parish assets. The PP was not a beneficial owner in the usual sense as his role has no legal personality and the PP’s identity changes, nor was he personally beneficially entitled to the parish assets. (Para. 6) b. No sworn evidence had been given by any member of the rugby club or parishioners involved in the Field’s purchase or who were familiar with the factual situation on the ground to suggest that the Field was bought for a particular group of parishioners or to be held on trust.

67. The Defendants submit that the only evidence before the court is that of: (i) Michael Sinnott, the GAA Club's then acting secretary who was involved in both the parish and the GAA Club, in playing GAA and in parish fund raising ; (ii) Fr Bradley, from parish records;

(iii) Billy Murphy, a member of the parish finance committee; and (iv) Mr McKenna. They all reject the contention that the money was collected from parishioners to require the Field to be held on trust for any other party. The Plaintiff did not exist when the Field was bought and nobody in the clubs that did exist has sought to join the proceedings or to swear an affidavit on the Plaintiff’s behalf. Mr Sinnott's affidavit recalled the Field’s purchase and the collection of money for the parish and positively averred it was not agreed and not the intention that the Defendants should hold the Field on trust for anyone else. Without evidence, the Plaintiff alleged that the parishioners donated money to buy the Field to be held in trust for them but the first-hand evidence was that monies were collected from parishioners every week to fund the parish and that such money was donated for both the parish and the diocese, funding the Catholic Church as a religious organisation. Fr Bradley observed that: "Where a Parish has extraordinary expenditure; it will frequently seek additional funds to be donated the Parish to achieve its goals. In this instance additional funds were raised in the Parish to help the Second Defendant reduce the debt of the Parish, a debt that the Parish was solely responsible for and it had no way of knowing if would be assisted by Parishioners and reducing the debt."

68. Although the Plaintiff asserted that the acquisition cost was significantly financially contributed to and/or facilitated by parishioners there was no evidence before the court substantiating the allegation that money was collected from the parishioners on the basis that the Field was to be held in trust by them. To the contrary, the evidence shows that the PP borrowed to buy the Field at his own risk. The Plaintiff has not demonstrated a sustainable cause of action or set out a credible basis for the assertion that the Field was purchased in 1959 on trust for the benefit of all children or young people of the parish. It is not sustainable to deduce from the collection of weekly donations from parishioners and from occasional fundraising activities that that gave rise to such a trust. In any event, the Field was bought to be used as both a parochial hall and a sports field, at the parish’s discretion.

69. Fr. Bradley noted that the contract of sale confirmed that the First Defendant held the Field on trust for the schools and parishes of the Diocese of Dublin, the beneficial users of the land which accorded with the relationship between the two Defendants, as the First Defendant was selling the Field in its capacity as trustee for the schools and parishes of the Diocese. He says that the Plaintiff confuses the first defendant holding the Field for the Second Defendant and the First Defendant’s charitable status with it holding the Field on trust for the children of the parish and/or parishioners on the other hand. However, there is no legal nexus and never has been between the First Defendant, its charitable status and the children of the parish and/or parishioners.

70. At para. 15 Fr Bradley’s affidavit noted that the nature of the trust contended for by the Plaintiff varies over its pleadings and affidavits, reiterates that neither the GAA Club nor any other club not the Defendants understood that the Field was bought to be held on trust for the GAA Club, which was involved in fund raising for the Second Defendant. However, the Second Defendant devoted the use of the Field to sporting activities and allowed adults, boys and girls, to play on it. Clause 5 of the contract with the GAA stipulating that the Field was “to be used solely for sporting activities” was included by the Second Defendant to reflect its desire to provide playing Fields but it was not obliged to include such a stipulation or to ensure that the purchaser allowed the Plaintiff to continue to use the Field.

71. At para. 18 in response to the reference to “moral obligation” in his predecessor’s 1979 and 1981 letters, Fr Bradley pointed out that no legal obligation had been identified and that a moral obligation is not equivalent to such. Fr Bradley observed that the position described by his predecessor Fr Leahy –the parish acquiring the land in 1959 and making it available free of charge to local sporting groupswas very different to the situation described by the Plaintiff, of the parish holding the lands on trust for the parishioners.

72. Para. 19 noted that the First Defendant did not exist when the Field was acquired and the parish trustees carried out its current role. Accordingly, the Field was originally held by the parish trustees for the PP’s use.

73. A short affidavit from the First Defendant’s director confirmed his agreement from the First Defendant's perspective with affidavits served on the Defendants’ behalf, confirming that while the First Defendant is the legal owner of all property held by the Archdiocese, this was as trustee, as assets were held for the relevant PP’s benefit. Accordingly, the Field was held on trust for the PP’s benefit and at no time since the purchase had it been asserted by any party that it was held on trust as asserted in these proceedings.

74. A further affidavit from Mr Cassidy largely rehashed previous averments and advanced points which are properly matters of legal submission.

Legal Principles: Applications to Strike Out Claims

75. The parties largely agreed as to the principles governing such applications – defendants should not be required to defend claims which are frivolous, do not disclose a reasonable cause of action or are doomed to failure - Ewing v Ireland [2013] IESC 44. In Keohane v Hynes [2014] IESC 66 (“Keohane”), the Supreme Court noted that claims can only be dismissed in clear cases - Courts should be cautious about assessing the merits, observing at para 6.2: “the extent to which it is appropriate for the Court to assess the evidence and the facts on a motion to dismiss as being bound to fail is extremely limited.” He added at para 6.5 that: “Bringing a case which is bound to fail is an abuse of process. If it is clear to a court that a case is bound to fail, then the court has jurisdiction to prevent that abuse of process by dismissing the proceedings. However, as again noted by Murray J. in Jodifern, whatever might or might not be the merits of some form of summary disposal procedure, an application to dismiss as being bound to fail is not a means for inviting the court to resolve issues on a summary basis.

6.6. … all of the jurisprudence emphasises that the jurisdiction is to be sparingly exercised and only adopted when it is clear that the proceedings are bound to fail rather than where the plaintiff’s case is very weak or where it is sought to have an early determination on some point of fact or law…” At 6.7 Clarke J cited Burke v. Anglo Irish Bank Corporation plc [2011] IEHC 478, stating that: “In Lopes, I observed at para 2.5: ‘In order to defeat a suggestion that a claim is bound to fail on the facts, all that a plaintiff needs to do is to put forward a credible basis for suggesting that it may, at trial, be possible to establish the facts which are asserted and which are necessary for success in the proceedings. Any assessment of the credibility of such an assertion has to be made in the context of the undoubted fact, as pointed out by McCarthy J. in Sun Fat Chan (at p. 428), that experience has shown that cases which go to trial often take unusual turns on the facts which might not have been anticipated in advance.’ I commented to similar effect in Salthill Properties at para 3.15: ‘... it seems to me that I should assess the factual allegations ..., not on the basis of whether those parties have shown that they have evidence which, if accepted, would lead, arguably, to success in the proceedings but rather whether [the applicants] have established that it is impossible that any such evidence will be produced at trial.’

6.8 What the Court can analyse is whether a plaintiff’s factual allegation amounts to no more than a mere assertion, for which no evidence or no credible basis for believing that there could be any evidence, is put forward. ...

6.10 It is an abuse of process to maintain a claim based on a factual assertion in circumstances where there is no evidence available for that assertion and, importantly, where there is no reasonable basis for believing that evidence could become available at the trial to substantiate the relevant assertion. However, the bringing of a claim based on a factual assertion for which there is or may be evidence (even if the defendant can point to many reasons why it might be argued that a successful challenge could be mounted to the credibility of the evidence concerned) is not an abuse of process. It is for that reason that a court cannot properly engage with the credibility of evidence on a motion to dismiss as being bound to fail and it is for that reason that the very significant limitations which I have sought to identify exist in relation to the extent to which a court can properly engage with the facts on such an application”.

76. In Nowak v Data Protection Commissioner [2016] 2 IR 585; [2016] IESC 18 O’Donnell

J. (as he then was) noted: “…the power to dismiss proceedings in limine saves court time, avoids delay, and, just as importantly, prevents the court process and the inevitable delays involved therein from being used merely to bring pressure to bear on the other party, and thus become a bargaining counter in negotiations”.

77. In O’Malley v National Standards Authority of Ireland and Anor [2024] IEHC 500 (“O’Malley”) Simons J. considered the amended r.28. Para. 10 of his judgment noted that: “By analogy with the pre-amendment case law, that the court hearing a strike out application may, to a limited extent, consider the underlying merits of the case. If 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, then the proceedings can be struck out pursuant to the amended rule.”

78. He reiterated that the court 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 asserted in the pleadings, and which are necessary for success. The Court of Appeal agreed in Meehan v Ireland [2025] IECA 59 as did Nolan J. in Von Geitz v O’Brien and Anor [2025] IEHC 399. In Meehan, the Court noted that the inherent dismissal jurisdiction had been effectively subsumed by the new rule 28 (para. 54) but the principles remained the same, the jurisdiction was to be exercised sparingly and only in clear cases, rather than on the basis that the Plaintiff’s claim was very weak.

79. In O’Malley, Simons J., observed at para. 12 that “a strike out application will not be appropriate where the issues of law are not straightforward,” citing Jeffrey v Minister for Justice [2019] IESC 27, where the Supreme Court held that issues of law should only be determined on such applications if they were very straightforward with no risk of injustice. At para. 11 of his judgment in Mohan v Revenue Commissioners [2025] IEHC 63 (“Mohan”), Simons J. emphasised the threshold noting that such applications are brought at a very early stage before discovery and other procedural mechanisms had been exhausted:

“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. .. 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.”

80. In Jodifern v Fitzgerald [2000] 3 IR 321 (“Jodifern”), Barron J. observed (p.333) that such a dismissal application cannot succeed if, to determine the application, the Court would need to determine an issue for the purpose of deciding whether the Plaintiff could possibly succeed in the action: “It is not the function of the court to determine whether the plaintiff will succeed in the action”. Murray J. at p.334 of the Supreme Court judgment observed that it is a precondition to dismissal that: “all of the essential facts upon which the plaintiff’s claim is based must be unequivocally identified. It is only on the basis of such undisputed facts that the court may proceed. Moreover, and this is the aspect which I wish to emphasise, where all the essential facts have been so identified, it must also be manifest that on the basis of those facts, the plaintiff’s case has no foundation in law.

81. Dignam J. summarised the principles at para.54 of Beades v KBC & Ors [2025] IEHC

363 (“Beades”): “first, the default position is that proceedings should go to trial and that a person should only be deprived of a trial when it is clear that there is no real risk of injustice; second, it is a jurisdiction to be exercised sparingly, given that it relates to the constitutional right of access to the courts; third, the onus is on the moving party to establish that the pleadings do not disclose a reasonable cause of action or that the case is frivolous or vexatious or bound to fail or that it is an abuse of process, and the threshold to be met is a high one; fourth, the Court must take the plaintiff’s claim at its high-water mark; fifth, the Court must be satisfied not just that the plaintiff will not succeed but cannot succeed; and sixth, the Court must be satisfied that the plaintiff’s case would not be improved by an appropriate amendment to the pleadings or through the utilisation of pre-trial procedures such as discovery or by the evidence at trial.”

The Legal Requirements for the Creation of a Trust

82. The Defendants’ written submissions advanced arguments which were not pressed in oral argument7. In oral argument, they were content (for present purposes) to proceed on the basis that the Plaintiff could not establish the fundamental elements of a trust, the “three certainties”, certainty of intention or words, subject-matter and objects. Biehler’s Equity and Including as to the Plaintiff’s standing to enforce the alleged trust, the requirements of s.51 of the Land and Conveyancing Law Reform Act, 2009, the modern incarnation of s.4 of the Statute of Frauds, which requires the creation of a trust in relation to land to be in writing or evidenced by a note or memorandum in writing and also whether the trust would meet the requirements of S.2 of the Charities Act 2009 the Law of Trusts in Ireland (8th ed, 2025, Round Hall) (“Biehler”) p.74 endorses Keeton and Sheridan’s definition of a trust as: “the relationship which arises wherever a person (called the trustee) is compelled in equity to hold property, whether real or personal, and whether by legal or equitable title, for the benefit of some persons (of whom he may be one and who are termed beneficiaries) or for some object permitted by law, in such a way that the real benefit accrues, not to the trustee, but to the beneficiaries or other objects of the trust”.

83. As to certainty of intention, Biehler (p.96) notes: “…as Scarman LJ stated in Paul v Constance [1977] WLR 527 ‘There must be clear evidence from what is said or done of an intention to create a trust’. In determining whether this requirement of certainty has been met, the court will examine the substance and effect of the words used and a finding that a trust has been created will not be made unless it is satisfied that this was the settlor or testator’s actual intention. So even where there is certainty of subject-matter and of objects, no trust can be created unless there is also certainty of intention”.

84. As to certainty of subject matter, in Lehman Brothers International (Europe) v CRC Credit Fund Ltd [2010] EWCA Civ 917 Arden LJ stated that no trust is created if no property has been sufficiently identified to form the subject matter of such a trust. Biehler at (p.98) notes this principle also requires that the beneficiaries’ beneficial interest must be defined with sufficient clarity. As to certainty of objects, in Daly v Murphy [2017] IEHC 650 (“Daly”) Gilligan J noted: “19. As set out by Delany in Equity and the Law of Trusts in Ireland (6th Ed., 2016), for a trust to be valid it must be capable of control and execution by the court and the objects of the trust must be defined with a sufficient degree of certainty if the court is to administer the estate in accordance with the testate’s intentions”.

85. Citing McPhail v Doulton [1971] AC 424, Biehler (p.116) notes: “Even where a class is defined with sufficient conceptual certainty a trust may still fail for uncertainty where the definition of the beneficiaries is so hopelessly wide as to not form “anything like a class” so that the trust is administratively unworkable”.

86. Accepting that dismissals must be granted sparingly, the Defendants submitted that: a. the Court should consider whether there is any credible basis, based on the pleadings and affidavits, for the Plaintiff to establish the facts alleged. b. The Plaintiff acknowledges that its predecessor only started using the Field in the 1970s, more than a decade after it was bought. It adduced no evidence of the intention of the Defendants and/or those representing the alleged trust beneficiaries in 1959 suggesting an intention to create a trust. c. The claim is doomed to failure as the basic constituents required for a trust do not exist. The three certainties must be present. The objects/beneficiaries must be defined with sufficient certainty to allow the trustees or the court to administer the trust in accordance with the settlors’ intentions. The Plaintiff does not plead, nor has it adduced evidence that the certainties have been met. d. The Plaintiff had not pleaded or adduced evidence suggesting that a trust was created orally between the Defendants’ predecessors in title and any group of parishioners. Indeed, the Plaintiff has not adduced any evidence to support its claim or to contradict the facts set out on affidavit on the Defendants’ behalf. Although the Plaintiff invites the court to draw conclusions it does not set out facts on affidavit that conflict with the facts set out by the Defendant. e. The Plaintiff was incorrect in suggesting that Mr Sinnott’s affidavit cannot be relied upon because the deponent had not been tested by cross examination or rebuttal evidence. This is not a correct interpretation of O.19 r.24(3). The Plaintiff could have sworn an affidavit rebutting Mr Sinnott’s evidence if it had a basis to do so. However, the Plaintiff provided no evidence for a series of assertions, such as the suggestion at para. 26 of Mr. Cassidy’s first affidavit that that the Field was acquired “through both the use of Parish funds and a loan”, which does not accord with para. 15 of the statement of claim which stated that the Field was purchased through a loan from the Archdiocese. Similarly, para.

27 of the Plaintiff’s Replying Affidavit alleges that door to door collections were undertaken but Morgan Cassidy was not privy to such activities and does not identify the source for his claim; it remains a “mere assertion”.

f. The Plaintiff states at para. 78 that it has “not had an opportunity to prove the matters relied on in its Statement of Claim” at trial. However, it had the opportunity to set out the basis for its claim on affidavit and the Court can assess whether it has any reasonable prospect of success. Applications to strike out a claim are typically brought before discovery, which may not be used as a fishing expedition in the hope that something turns up to assist the claim. g. The claim, as set out in para. 24 of the Plaintiff’s Replying Affidavit, does not address the legal requirements necessary to create a trust. None of the three certainties are met. Instead, the Plaintiff relies on matters which are undisputed but do not demonstrate that a charitable trust was created in 1959. Voluntary donations to a charitable organisation that has the advancement of religion as its purpose do not create a charitable trust between donor and donee let alone between donee and unknown persons such as the “Children of the Parish of Foxrock”, as there was no evidence of any intention to create such a trust. h. The Plaintiff does not plead, nor do its affidavits aver that it was the intention of any parishioner donating to the Parish either by way of direct donations, parish collections or a monthly draw that they intended that the Defendant hold the Field on trust for the children of the Parish. i. As to certainty of subject matter, while the Plaintiff has claimed that the Field is the subject of a trust, but there was no specificity as to which part of the Field was held on trust for the “boys and young men of the Parish”, which was to be used by young girls and adults and which was to be used for the erection of a parish, the alleged trust does not meet the requirement as to the certainty of objects is not met.

j. The alleged trust also insufficiently defines its objects/beneficiaries. The Plaintiff’s replying affidavit variously claimed that the Field is held on trust for the “Children of the Parish of Foxrock”, the “Boys and Young Men” of the Parish, and all the parishioners (paras. 71, 88, 101 of the Replying Affidavit). The shifting categories of persons alleged to be the objects of the trust shows how uncertain the objects are. In relation to the various objects identified: There is no way of knowing what is considered a “young man”, how old may he be? The sporting uses are not limited, which would imply that a far greater number of clubs than those currently using the Field would be entitled to claim a beneficial interest.

Further, the Plaintiff claims that the Parish bought the Field to hold it on trust for the children of the Parish to use the Field for a sporting use rather than for the children involved in any specific club. This would allow individual children to claim a beneficial interest in the Field to play sport. The objects of the trust as alleged are uncertain and incapable of definition. Therefore, it fails the third limb of the test for the creation of a trust. k. None of the quotes from contemporaneous documents cited by the Plaintiff evidence the intention to create a trust.

Prior to the First Defendant’s incorporation in 1966 Parish property was held by parish trustees. This fact does not imply the creation of a trust between the Parish Priest and an identifiable sector of the public. l. Para. 40 of the Plaintiff’s Replying Affidavit relies on the fact that the First Defendant held the Field on trust for the schools and parishes of the Diocese as proof that a charitable trust was created in 1959. This is untenable. The only available evidence is that parishioners donated money to the Parish on an unconditional voluntary basis for the advancement of religion.

It is clear from the contemporaneous documentation that the Parish Priest was the only person responsible for the repayment of the borrowings required to buy the Field. m. The fact that the Defendant consistently sought to provide playing fields and maintained that commitment by imposing conditions on the purchaser to allow other clubs to use the Field for sporting purposes, does not prove a trust was created in 1959. It was the Defendants’ decision to buy the Field, and it has managed and regulated it as it has seen fit since 1959. This included selling parts of the Field and allowing adult teams and girls play on it.

The Defendants have averred to same not to assert an estoppel but to evidence how the Field was purchased and how it has been used and managed. n. The Plaintiff has confused the undisputed fact that the Church bought property, held on trust for the use of Catholic school and parishes in the Diocese, a trust in favour of individual parishioners or groups of parishioners. The Parish and the parishioners are not interchangeable terms and are not the same legal person

– the Plaintiff’s misunderstanding is a fundamental flaw underpinning its case.

87. The Plaintiffs submitted that the application is misconceived because: a. the risk of injustice is stark. If the application is granted, the claim will be extinguished and its members – primary school children – will have nowhere to play. The Defendants impermissibly seek the summary determination of legal and factual issues and have misapplied the jurisprudence by seeking to shift the burden for resisting the application to the Plaintiff. The burden lies on the Defendants to meet the strict criteria and the Defendants have also erred in their analysis of the requirements for a charitable trust.

The Field is manifestly held in a charitable trust for the following reasons; (i) its purchase was significantly financially contributed to and/or facilitated by the parishioners of the Parish of Foxrock; (ii) the ownership structure under which the Field is held; and (iii) the purpose for which it was acquired. The repayment of the loan used to purchase the Field was facilitated by parishioners through, for example, a monthly draw organised by the Parish, Parish collections and similar activities, such as door-to-door collections. b. the documentary evidence provides a credible basis for the claim that the Field is held in a charitable trust.

The disposal is thus impermissible. No power of sale is available to the trustees. Consequently, the transaction requires the consent of the Charities Regulator, which had not been sought. c. The application requires the Court to determine issues for the purposes of deciding whether the claim can ultimately succeed. These include; (i)The nature of the trust i.e., whether it is an express trust, resulting trust, or some other form of trust; (ii) whether a charitable trust exists in the manner contended for by the Rugby Club; and (iii) whether Field can be disposed of.

Based on Jodifern, asking this Court to determine such issues means the application must fail. As Dignam J noted in Beades. The Defendants must meet a heavy burden; the Plaintiff’s case must be taken at its high-water mark; the Defendants must prove that the Plaintiff’s case cannot succeed and that the Plaintiff’s case might not be improved through pre-trial procedures such as discovery. d. The Court may only consider the underlying merits to a limited extent, via the pleadings and affidavits. There is documentary evidence before this Court which “might arguably lead to the Plaintiff’s case succeeding”.

Notwithstanding the Plaintiff comfortably meets that threshold, the authorities confirm that it need not even do that. The Defendants must prove that it will be unable to produce evidence at trial that might give its case an arguable chance of succeeding – which they have failed to do. e. Two problems as to the legal requirements of a charitable trust arise regarding the Defendants’ attempts to prove that the claim cannot succeed at trial. First, they must demonstrate that the legal issues are straightforward and capable of resolution on such an application.

Second, their analysis of the substantive issues is incorrect. While it is manifest that the Field is held in a charitable trust, the issues of law cannot be described as “…very straightforward…”, in the sense outlined in Jeffrey, so as to be appropriate for summary determination. The parties appear to be in significant dispute as to the legal principles governing charitable trusts, and the precise nature of the trust in issue. This assumes that the requirements outlined by the Defendants are applicable to charitable trusts in the first place.

They are not, and four points may be made in response: f. First, the Defendants argue that the purportedly required certainty of objects is not present. However, as Biehler notes (p.438), citing Re Brown [1898] 1 IR 423: “…charitable trusts are not subject to the same requirements relating to certainty of objects which must be complied with if a private trust is considered to be valid.” Similarly, Tudor On Charities (10th ed, 2015, Sweet & Maxwell) (“Tudor”) notes (para. 6-015):

“A charitable trust does not require certainty of objects

but, rather, certainty that all potential objects are

charitable.”

Accordingly, the Defendants appear to have proceeded under the

misapprehension that the trust at issue in these proceedings is governed by principles applicable to private express trusts. It follows that most authorities cited by the Defendants are not relevant. For example, at para. 22 of their submissions, the Defendants also rely on Daly, where Gilligan J cites Keane’s Equity and The Law of Trusts in Ireland (2nd ed, 2011, Bloomsbury) to the effect that trusts for purposes rather than people are “…rarely valid…”. However, (para. 11-01), Keane added: “To this general doctrine the great exception is ‘charitable trusts’.” g.

Notwithstanding this, the objects of the trust for whom the Field was initially acquired are clear – namely, the boys and young people of the Parish. The fact that the Field may have been used by other groups following its acquisition does not change the clarity of objects present at the time of its initial acquisition. h. The trust also clearly comes within the categories of charitable purposes identified by Lord Macnaghten in Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531, which have been placed on a statutory footing by s.3 of the Land and Conveyancing Law Reform Act 2009 (“the 2009 Act”).

As Biehler notes (p.514 – p.515): “…it may be necessary to draw a distinction between trusts to promote and encourage a particular sport or sports, which have traditionally not been regarded as charitable, and trusts to provide facilities for recreational purposes, which will almost invariably be upheld.” i. She adds (p.515): “The provision of recreational or leisure facilities such as parks or playing Fields have been recognised as charitable objectives and in Re Morgan, a gift for ‘a public recreation ground for amateur activities’ for the benefit of a particular parish was upheld.” j.

Similarly, in Re Hadden [1932] 1 Ch 133, the Court upheld a charitable trust where the gift was for playing fields, parks, gymnasiums and other plans which gave recreation as many as possible. k. Second, the Defendants argue that there is no trust deed governing the Field, relying on the 2009 Act. In doing so, the Defendants are conflating the statutory definition of charitable organisations established to conduct a charitable purpose and a specific piece of land being held in a charitable trust. In this regard, they rely on Tudor (para 6-003): “The existence of writing is not always necessary for a charitable trust of land or personality because where rights have been enjoyed for a long time a legal origin will be presumed if possible and evidence of usage will be admissible”. l.

Third, the Defendants argue that there is no certainty of subject matter. This is not stateable given that the Field is reflected in Folio DN9832. m. Fourth, the Diocesan documentation puts beyond any doubt the intention for which the Field was acquired, and that it was intended a trust would be created. Clearly, the land was purchased for, and in effect paid for by the Parish for use as sporting facilities by the children and young people of the Parish. It has been used for upwards of fifty years for that purpose. In that context clearly the land is held under a Charitable Trust whether or not the Defendants accept that. n. It is clear that the First Defendant – which is a registered charity – holds the Field in a charitable trust.

This is borne out by its governing documentation, which provides that principal object is to act as trustee for property in the Diocese of Dublin. The dispute between the parties centres on who precisely is entitled to the benefit of the Field. o. Based on the evidence before the Court, specifically the Diocesan documentation exhibited to Fr. Bradley’s Affidavit, and discussed at paras.

45 – 49 and paras. 51 - 56 of Mr. Cassidy’s Replying Affidavit, the answer to that question can only be the children of the Parish of Foxrock. As that evidence demonstrates, it was clearly the intention that the Field was acquired to benefit the youth of the Parish of Foxrock for use as a sporting Field, thereby negating the arguments the Defendants have made around a purported lack of certainty of intention. p. As the Diocese is organised on a parochial basis, the Field is held for the benefit of the parishioners of Foxrock Parish, specifically the children of that Parish given the purpose for which the Field was acquired. q. As the evidence discussed at paras. 57 – 60 of Mr. Cassidy’s Replying Affidavit shows, it was always contemplated that whatever financing was initially used to acquire the Field, the parishioners would play a central role in financially facilitating that acquisition, whether through direct contributions or assisting in the repayment of any loans obtained. Indeed, para. 17 of Fr. Bradley’s grounding affidavit admitted that Parish income was used to defray the capital and interest accruing on the costs of having acquired the Field – a large part of such income would have come from parishioners. Further evidence of this would undoubtedly arise through discovery. r. The evidence of Mr. Sinnott – in particular the averments at paras. 12 and 20

– 23 of his affidavit – support the Plaintiff’s claim that the Field was acquired strictly for sporting purposes and would be held on trust for the benefit of the Parishioners. In particular, those paragraphs recount the significant levels of fundraising parishioners carried out to assist with managing the costs of the Field. It is not relevant that these fundraising activities may not have been solely for the Field. The Plaintiff is confident that further evidence of this will undoubtedly arise through discovery. Its case is not that any particular sporting organisation has any beneficial interest in the Field, but rather that the Field is held in a charitable trust for the children and young people of Foxrock. There is more than sufficient evidence before the Court to conclude it has established a credible basis that this can be proved at trial.

Analysis

The Defendant’s burden

88. The Plaintiff’s correspondence, pleadings and affidavits alleged a charitable trust requiring the property to be used to provide sporting facilities for “the children of the parish". They also cited advice from senior counsel to that effect, but sidestepped requests to produce that opinion (which could scarcely be privileged following its deployment). The key issue is whether the claim is bound to fail. The Defendants must satisfy me that the claim has no prospect of success and must be struck out. The application cannot succeed if contested factual issues or complex legal issues require determination to determine the application. In accordance with the Plaintiff’s submissions and the authorities, I take its case at its height. That does not mean that I should accept speculative assertions which are contradicted by concrete evidence (such as contemporaneous correspondence which offers an objective and informed insight into the parties’ understanding and intentions). Kelly v Allied Irish Banks plc [2019] IESC 72 notes that the Court may find it necessary “to engage to some extent with material facts and documents” to determine whether a claim is bound to fail. The Supreme Court approved the approach adopted by Kearns P in that regard, but it is clear that what is envisaged is a “highly limited factual analysis.”

89. While I agree with the Plaintiff’s submission that the onus is on the Defendants, it is difficult to disprove a negative. The Defendants can meet their burden by demonstrating that there is no credible evidential basis for the claim asserted by the Plaintiff and the actual evidence is inconsistent with the allegation. The Plaintiff’s fundamental claim was that a charitable trust was created in 1959 following the acquisition of the Field at Brighton Celtic’s instigation. That case must be shown to be bound to fail. The Defendants need not also disprove the possible existence of other hypothetical impediments, such as a resulting trust, or unpleaded scenarios. If the Plaintiff alleged a trust other than a charitable trust, then it should have made that case on affidavit and sought leave to make appropriate amendments. The onus on the Defendants does not extend to disproving speculative possibilities which are not alleged and not supported by the actual evidence.

90. The Plaintiff raises the possibility that its case could be enhanced by discovery or crossexamination, without identifying how (except insofar as it anticipated further evidence of donations and fund raising, which is hardly controversial). The same could be said by every respondent to a strike out application. However, if, on the available evidence, the claim has no reasonable chance of succeeding, a speculative and inchoate possibility that a position will be enhanced by cross-examination or discovery is insufficient unless there is at least some realistic possibility of such evidence emerging.

Genesis

91. The PP’s 13 May 1959 letter to Archbishop McQuaid framed the transaction. The following points arise: a. for reasons detailed by Mr Sinnott, it is clear that the reference to “a Football and Social Club in Cornelscourt” and its cottage was to the GAA Club contradicting a key premise of the Statement of Claim. The letter noted that the club had no hope of raising the money, so it asked the PP to buy the Field “as a site for a Parochial Hall and Sports Centre and they promised to cooperate in collecting funds.” b. The letter was clearly pitched in terms to win the Archbishop’s support. Its subtext was unsubtle, expressing concern about “11 teams - all working-class boys and young men … most of whom are out of touch with the clergy.” In 1950’s Ireland, the Church8 may not have welcomed the idea of impressionable For brevity, I use the term “Church” to refer to the Catholic church as an institution and when it is unnecessary to distinguish between the PP, the Archbishop and the archdiocese.

young men removed from the clergy’s influence. The proposal would have reinforced the link between parish and club, enhancing the Church’s influence in the capital’s expanding suburbs. The Archbishop’s approval of the proposal as being "of untold spiritual advantage to the boys and young men” must be seen in this light. While both the Archbishop and the PP would have been familiar with the Latin proverb “mens sana in corpore sano”, it was the players’ moral and spiritual wellbeing that concerned them, rather than their physical health or whether the Geraldines made the county final.

The Archbishop’s position as to the relative importance of religious and sporting was a matter of record. This is the same Archbishop McQuaid whose demand for the abandonment of soccer internationals against Yugoslavia due to Communist religious persecution had recently led to the abandonment of a soccer international and to the boycott by Ireland’s then President of a subsequent match in deference to the episcopal edict. c. Neither the PP (nor the GAA Club) proposed that the land should be held on trust or solely for a sports centre. The GAA Club evidently encouraged the PP to buy it as a site for a parish hall and sports centre.

It knew that the parish had been fundraising for a hall. It failed to persuade the trustees to use that fund, so it went direct to the PP, its titular chairman, to ask him to buy the land. Suggesting the land as a site for both hall and sports ground was more likely to win favour than a plea for a sports field alone. The reference to the intended use as both a hall and sports centre, in that order, must be seen in that light. While the hall was never built, its construction was envisaged at the time of the acquisition. The correspondence records steps taken; the lack of progress was down to cost.

If it had proceeded, the land available for sport would have been reduced (and also due to the envisaged loss of the frontage for development and other land due to the CPO). Accordingly, there was never any guarantee how much land the Parish would make available to local clubs or for how long. d. The letter noted the GAA Club’s promise “to cooperate to the utmost in collecting funds”. There is no evidence of any such commitment from any other quarter, and such a vague assurance falls short of the sort of involvement assumed by the Plaintiff and required to trigger a charitable trust. e. The letter envisaged that the parish would buy the Field.

There was no suggestion of a specific contribution by the GAA Club or its members or a commitment to share the liability such as might have given rise to a charitable trust. Nor was there any suggestion that the field should be beneficially owned for other parties or held on trust for the children or young people of the parish or any other group.

92. The PP’s second letter on 15 May 1959, hinted at the commercial potential, which also seems difficult to reconcile with the assertion of a charitable trust. It drew attention to the anticipated CPO "which would not affect the playing pitch”, but would yield compensation, coupled with a particular builder’s immediate interest in buying the frontage for housing. The benefits were obvious – the cost could be recouped (as ultimately transpired). This was the time of the “great expansion” (to borrow a phrase from later correspondence) and the opportunity would not have been lost on the Archdiocese and its advisors. (The awareness of the implications of urbanisation also appears from the Archdiocesan Secretary’s 3 December 1959 query as to whether a hall would qualify for a grant as the area was no longer rural).

93. The PP’s 19 May 1959 letter and subsequent communications begged for a deduction from the parish’s divisible income to defray interest and capital, asking the Archbishop to reduce the archdiocese’s share of parish income in recognition of the additional burden imposed on the parish. This is consistent with the Field being acquired by and at the parish’s expense, rather than on a basis which would give rise to a charitable trust.

94. The principals’ contemporaneous understanding that the cost would be a parish liability is confirmed by the documents. On the one hand, the PP assured the Archbishop in the 19 May 1999 letter that he would ask the senior curate "to organise collections and run various functions to raise funds to pay off the cost’”. On the other, he warned of his doubts as to whether this would bear fruit. This is a recurring theme – he telephoned the archdiocese on the same day as his 19 May letter to record his concern that his curates "would not cooperate in relieving the parish of the debt which might be contracted on the field", doubts reiterated subsequently. Leaving aside the testy relationship between the aged cleric and his curates, the correspondence shows that the cost was a parish responsibility and a worry for the PP. His doubts that fundraising would make major inroads do not sit well with the Plaintiff’s suggestion that parishioners funded the purchase for the purpose of acquiring grounds for sport and that the lands were therefore impressed with a trust to that end.

95. The Archdiocese’s 27 May 1959 letter confirming the Archbishop’s approval of the acquisition is significant because: a. the Archbishop obtained legal advice before consenting. The letter set out conditions, presumably reflecting such advice. As I have noted, the commercial benefits of the transaction would scarcely have been lost on the Archdiocese and its advisors, with two disposals anticipated. The auction advertisement described the property as a "highly important building side consisting of about 8 acres – freehold – approval granted and plans passed for about 60 houses and 3 shops, close to all amenities, transport etc. Also excellent factory site or other building etc".

b. There would have been obvious reasons to acquire the and outright, rather than on trust but, if the intention had been to establish a charitable trust, then documents prepared by the solicitors would have reflected that intention. In fact, the letter does not suggest that the land would be acquired in trust for other parties, nor does any such intention appear in the subsequent correspondence with the solicitors who dealt with the purchase. c. The reference to the need for Vatican approval was also significant – if the land was to be acquired on trust then this would presumably have been made clear in the request to the Archbishop, in his approval and in the application to Rome.

96. Mr Sinnott’s minutes of the August 1959 GAA Club Committee meeting are revealing. They show that the GAA Club accepted from the outset that its use of the Field - the first by any club, - was on the basis of the PP’s permission. There was no suggestion of a trust or any other such entitlement. (Interestingly, the minutes also show the then symbiotic relationship between the GAA and the Church, recording the club’s acceptance of an invitation to a tournament. The invitation came from the host’s PP rather than the club itself). The contemporaneous public understanding of the basis of the ownership position also appears from the Dublin Post report on 7 September 1960 confirming that the new ground “cost the parish £4,500” and that there was a parish draw to try to clear the debt. There was no suggestion of a trust.

97. Later correspondence with the Archdiocese in December 1959 supports the conclusion that the Field was a cost to the parish. The PP criticises the outcome of fundraising efforts, noting the “disappointing results of the previous draw” – there is no suggestion that funds were raised specifically for the training. He notes that the projected cost of the hall was too high and he and the Archdiocese agree “that the upper income people will hardly subscribe to the project". The reason for such parsimony is not stated9 and does not matter for present purposes. The point is that the PP again identifies the cost as a parish burden, forming part of its debt, contradicting any suggestion of fundraising initiatives which could give rise to the creation of a trust.

98. There may be a political undercurrent to the correspondence. Not unreasonably given his age, the PP may not have welcomed responsibility for a spike in the parish debt, preemptively implying that the curates would be responsible for any default and unsuccessfully seeking to manoeuvre the Archbishop into accepting responsibility for decisions further increasing the debt, such as building the hall. The Archbishop’s impatience appears from his comment: “let him wait a little, he wants me to decide, which I will not do." While such motives and parish politics are matters of speculation, they show that the cost of the field was a funding burden for the parish alone. The Archdiocesan Secretary’s 11 June 1959 comment to the that "a parochial debt of £6,200 does not seem unduly high and ought to be reduced if certain building sites are eventually disposed of under [AOH’s] guidance" also confirms that the cost formed part of the parish debt and that the development potential was appreciated.

99. The PP’s 30 June 1961 letter (requesting permission to sell the frontage) refers to his having got permission two years earlier to buy the Field "… as a games Field for the boys and young men of the parish. …I also got out plans for a parish hall on the site - these I submitted to His Grace but the Archbishop considered the cost excessive and nothing further was done”. This reaffirmed the basis for the original decision to buy the land for use as a games field and for a hall, the latter having been shelved on cost grounds by then. The letter does not suggest that the field was held on trust. To the contrary it notes that it was church It may have reflected geographic, socio-economic or other divides within a large and changing parish. Perhaps the clubs then favoured by “upper income people” were seen as less likely to need the Field at the time, or perhaps more established areas within the parish were well catered for in terms of facilities and were expected to be unsympathetic to requests to fund facilities for other parts of the parish. Perhaps it was a reference to the difficulties already experienced raising money for a new presbytery for the curates. Fortunately, I need not resolve that issue. It is the fact of the reluctance, which is relevant, not the reason.

property and that this was confirmed by legal advice. Furthermore, the PP sought approval to sell the frontage, offering no commitment as the fate of the sale price. The letter noted the lack of changing room facilities and mentioned the possibility of a pavilion but offered no commitment. The Archdiocese approved the proposal on the basis that it would reduce the parish debt which was largely due to work on the presbytery and the cost of the sports field.

100. With the exception of the auction, the GAA meeting minutes, the extract from its history and the contemporaneous newspaper article, the exhibited 1959 documentation was originally generated by the Church. There is no evidence of any public indication of the church's intentions with regard to the intended use of the field nor of any public guarantee that if the parish purchased the Field it would be retained and used for particular periods or purposes. The Plaintiff relies on the PP’s 23 October 1979 letter, responding to a query about the original acquisition in the context of the CPO, confirming that he would check with the solicitors as he had no documents but setting out his understanding: "As far as I know this is what happened. In the 1950s before the big expansion here there were moves to build a community centre and acquire playing pitches for outdoor games. Money was collected in the parish for this purpose. The land in Cornelscourt was acquired but I do not know the price”.

101. Such tentative and unresearched comments 20 years after the event hardly determine what happened in 1959. Fr Leahy had no direct knowledge. His reference to monies collected may have been to the hall building fund. He was not familiar with the details. For example, he wrongly understood that there were still two full-sized pitches following the CPO whereas, as Mr Sinnott’s affidavit noted, that was not in fact the case, an important point to any GAA player. In any event, the letter does not suggest that a trust came into existence in 1959 (and the Plaintiff did not contend that such a trust arose later). When read in its totality the letter is unhelpful from the Plaintiff’s perspective as it referenced an earlier proposal for the construction of a new parish school on the Field as having been stymied by opposition both locally and from the Department because of the traffic. That reference demonstrates not only that nimbyism is not an exclusively modern phenomenon but also the very fact of such a proposal confirms the understanding that the land was a parish asset, potentially available for alternative uses. Indeed, Fr Leahy notes that at the time of the school proposal, he consulted the parish solicitors and that he had “a letter stating that the Field is church property and can be used or sold as the church wishes. That solicitor’s letter was not exhibited although a subsequent letter to similar effect was produced.

102. Fr Leahy did opine that, despite the legal advice, there was “a moral obligation to retain the Field for sports purposes on account of the manner in which the purchase money was originally obtained." The Plaintiff relies on that comment as confirming a trust but that does not follow. Such comments were understandable but fall short of meeting the requirements of either confirming that a trust was created twenty years before, as the Plaintiff contends. The suggestion that he considered that any sort of binding trust had been created is contradicted by his 29 August 1981 letter which responded with disappointment to an indication that the Council would not acquire the entirety of the land in the CPO, observing that as far as the remainder was concerned: "we must either give this land to the County Council on the understanding they will be maintained as a sports fields for the present users in return for which we would hope to have their goodwill and the goodwill of the people or else retain it and maintain it for our clubs and school knowing that we have an asset that might at some future date be realised for the benefit of the parish and the diocese."

103. The concluding remark suggests that Fr Leahy also regarded the Field as an asset to be realised for the benefit of the parish and the diocese. He twice received advice to that effect from the solicitors who handled the original acquisition. Accordingly, his correspondence does not advance matters for the Plaintiff. The evident desire to retain the amenity was reflected in the Archdiocese’s 26 November 1981 letter to estate agents instructing them in respect of CPO negotiations, concluding that the agent should indicate to the local authority that the Church would not consider selling the rest of the land "due to the requirement for continuing use as sports field for the parishioners." However, such an instruction in the course of negotiations falls short of demonstrating a charitable trust.

104. The contemporaneous documentation refutes a central plank of the Plaintiff’s case, demonstrating that the Field was not bought with monies advanced by the parishioners to provide sporting facilities or to purchase a property. It was paid for by parish borrowings approved by the archdiocese. The debt, which included the cost of the Field, was initially reduced by general parish fundraising including donations, collections and the monthly draws until the sale of part of the Field largely eliminated the debt, prior to a much larger figure being realised by the Parish in 1979 on the occasion of the CPO. The correspondence in relation to the difficulties in funding the hall confirms the disappointing monthly draw results after the acquisition, showing that there was no material increase in donations from parishioners to support the acquisition.

105. Significantly, the 2013 Code conclusively confirms the stakeholders’ understanding in terms which appear to undermine the claim: a. it was signed on behalf of the Plaintiff and by the then users of the Field, unequivocally affirming the parish’s ownership of the Field and its “absolute right and discretion to control its usage for the benefit of the parish”. b. It noted “the contribution the sports clubs make to parish life and to the wider pastoral area” and “the dedication of the clubs’ committees” but that recital was subordinate to the confirmation of the parish’s ownership and control. c. It set out ground rules for the use of the Field, all consistent with the parish’s ownership and control: (i) no other party could use the field without the PP’s written permission; (ii) No expansion of current usage, development, construction or placement of containers was permitted without the PP’s agreement; (iii) The code stipulated parish requirements as to car parking, respect for neighbours and their property, securing the Field from unauthorised entry, maintenance. Abusive language was prohibited. No lights were to be used; (iv) The clubs had no say on any of the foregoing matters – the PP retained control on all such points with no requirement to consult the clubs. d. The Plaintiff wrote to its members setting out its claims as to the basis on which the Field was bought. If members or parishioners agreed with that account one would have expected them to have come forward. No such evidence emerged. e. The Plaintiff asserts that the Plaintiff commenced using the field in the early 1970s it did so with Brighton Celtic’s permission rather than the PP’s, but Mr Cassidy was not involved at the time, and he does not identify the source of this information. It would have been more appropriate to furnish an affidavit from an individual who could deal with that point first hand and to exhibit relevant documentation. Accordingly, it is not clear whether or to what extent the PP was consulted when the Rugby Club started to use the Field. Perhaps Brighton Celtic was simply the conduit. Little credence can be accorded to such hearsay comments given the lack of detail and the unknown source.

106. In any event, the Plaintiff acknowledged the basis for its use of the Field when it signed the Code. It required each club, including the Plaintiff, to engage in four respects - by acknowledging the Parish’s ownership and control; by adhering to the Parish requirements;, in terms of their relationship with other users (sharing of costs); each club was required to provide an annual report to the parish finance committee detailing its activity, contact details, substantive issues, accompanied by copies of insurance documents etc. Accordingly, the Code, which the Plaintiff says, “simply recognised the practical state of affairs regarding (the Field’s) use before then”, confirms the position outlined in the defence and in the Defendant’s affidavits. Its terms undermine the claim that the Field was subject to a trust established in 1959 for the benefit of the children and young people of the parish.

107. The Defendants’ affidavits, which were not challenged in any material respect were consistent with contemporaneous evidence and grounded on first hand evidence. Mr Sinnott was an observer of or participant in key events at the crucial time in multiple capacities given his roles in club and parish. Mr Murphy’s testimony took up where Mr Sinnott’s left off, offering first hand, decades long, evidence from the Finance Committee’s perspective, including his personal role in the preparation of the Code, up to and including his witnessing its execution by all stakeholders, including the Plaintiff. He had never heard it asserted that the Field was held subject to a trust as asserted by the Plaintiff (and similar confirmations were forthcoming from the Plaintiff’s other deponents). Throughout his time on the finance committee, the parish controlled and regulated the use of the Field and decided who could use it. He explained the background to the PP’s subsequent expulsion of one club which failed to comply with the code. He notes that club’s acceptance of that decision - there was no challenge to the PP’s entitlement to terminate access to the Field. The current PP and the First Defendant’s Director offered the Parish’s institutional perspective and the First Defendant and dealt with events which triggered the litigation.

108. The 2013 Code itself demonstrated that all parties, including the Plaintiff and the original users accepted that the Parish owned and controlled the Field. The PP’s uncontested

decision to terminate a club’s use of the Field also demonstrated that, as the Code confirmed, clubs were only using the ground with the PP’s permission.

109. The direct evidence as to the basis on which the Field was acquired and originally operated came from contemporaneous documents and the Defendants’ affidavits. The Plaintiff failed to effectively join issue with such evidence. Instead, without advancing credible evidence as to primary facts, its affidavits made speculative assumptions and assertions and debated matters more properly the subject of submission. Although Mr Cassidy advances bald assertions as to the understanding of “all users of the Field from 1959 onwards” he did not provide a basis for such speculation, and no other deponent testified as to the creation of a charitable trust. His involvement in the Plaintiff only dated back to 2014 and the Plaintiff’s use of the Field only goes back to the 1970’s. In contrast to the first-hand evidence furnished by the Defendants: a. Mr Cassidy, one of the Plaintiff’s director’s (and, originally, a Plaintiff) had only been involved in the Rugby Club since 2014. His three affidavits could not offer first hand evidence (except as to recent events) although he debated the interpretation of earlier events to which he was not privy. b. The Plaintiff’s other director (Jan Mahon), originally the Second Plaintiff, was involved in the Rugby Club for longer than Mr Cassidy (including when the club acceded to the code). He did not swear an affidavit in response to this application, although he had previously sworn an affidavit in support of the application to substitute the current Plaintiff, but stopped short of expressly verifying the allegations in the Statement of Claim or in Mr Cassidy’s affidavits. Although Mr Mahon noted that he was reducing his involvement in the Rugby Club, as his children were no longer of primary school age, that need not have prevented him swearing an affidavit offering his own first-hand account based on his own 12-year involvement in the rugby club. c. Significantly, the Plaintiff filed no affidavits from any current or former members, players or officers with more extensive institutional knowledge. Nor did it adduce testimony from (former) officers or members of other clubs who had used the Field. Nor did it file affidavits from parishioners who made donations when the Field was acquired (or were asked to do so).

110. Accordingly, no adequate evidential basis has been advanced for crucial pleas advanced in the statement of claim – the Plaintiff’s director’s affidavits advocate for such propositions on the basis of assertions, supposition and hearsay. Such pleas and assertions include claims robustly refuted by the Defendants’ first-hand affidavit evidence and by contemporaneous documents, such as claims that Brighton Celtic originally instigated the acquisition, doing so on the basis of a commitment to fundraise, giving rise to a charitable trust and becoming the primary user of the Field for many years. The Plaintiff adduced no concrete response to the contemporaneous documents and the testimony of Messrs Sinnott and Murphy evidencing how (and on what basis) the Field was acquired. There is no evidence that parishioners’ donations were earmarked for the Field or made on the basis that the Field be held on trust. The evidence as to the use of the Field over the years overwhelmingly supports the Defendants’ position as to the genesis of and basis for the acquisition and the basis for the subsequent use of the Field by different codes and clubs, with the PP’s imprimatur. The payment of rent, albeit a nominal one is inconsistent with the assertion of a trust10.

111. The following points fundamentally undermine the Plaintiff’s claim: a. the contemporaneous events do not support its case. For example, the sign installed post-acquisition identified the Field as parish property and the intended site of its future Hall. b. The Plaintiff has not identified any oral or public statement at the time of the acquisition, whether by the PP, the Archbishop McQuaid, or by the clubs, which suggested that they or parishioners intended to create a trust as alleged by the Plaintiff or that such a trust was in fact created. Nor do the contemporaneous documents suggest any such intention. The correspondence between the PP and There was no evidence as to the background to the ending of the practice in May 1993. Perhaps it was hardly worth collecting rent at that level - £20 not going far in 1993 as in 1959. There was no submission that I should attach any significance to the waiver of what by then was a nominal rent in 1993 – the important point is that the agreed rent was paid in the aftermath of the acquisition, which appears inconsistent with a trust the Archdiocese suggests that the purchase was to be by the Parish and was funded by it, increasing its debt. c. The contemporaneous documents also show that the Archdiocese consulted with its solicitors in respect of major decisions in respect of the Field. That correspondence does not refer to a trust – the solicitors would doubtless have amended the structure and the documentation to provide for the establishment of a charitable trust if that had been the instruction.

112. The evidence shows how the Field was paid for:

a. Contrary to the Plaintiff’s assumption, it was financed by an increase to the Parish borrowings, authorised by the Archbishop and the Vatican. The acquisition substantially increased parish debt, which subsequently reduced through general parish fund raising activities (such as collections and a monthly draw) rather than through initiatives focussed on the Field in particular, with the major inroads being due to the sale of part of the land and the CPO. With the (possible) exception of references to an annual sports day, there is no evidence of significant fund-raising initiatives directed at paying for the Field or for a community sports facility. b. Although the GAA Club supported and helped promote the Parish draw and other initiatives, and individuals, such as Messrs Sinnott and Murphy, were active as both parishioners and GAA Club members, there is no evidence of any major independent fund-raising initiative by the GAA Club or any other club which was directed at paying for the acquisition. c. The major inroads in respect of the debt were achieved by, firstly, the sale of the frontage in 1961 and, secondly, the even greater return following the 1979 CPO. Those disposals and the associated decision-making processes and the fact that the fruits of the disposals went to the parish are also inconsistent with the alleged trust.

113. The fact that the original and main user of the Field, the GAA Club, agreed to pay a significant sum to the Plaintiff to buy the Field also demonstrated its appreciation that its use of the Field had been at the PP’s pleasure. If it was already entitled to continue to use the Field there would have been scant logic to such a substantial cost.

114. Taking the Plaintiff’s case at its height (but ignoring mere assertions, particularly those inconsistent with first hand testimony or contemporaneous documents), I accept for present purposes that the Parish originally bought the Field in 1959 with a view to using it as a site for a parish hall and as a sports ground for use by the GAA club and other local clubs11. Over the years an ecumenical approach was adopted in that the grounds were also used (with the PP’s permission) by other local clubs, including various soccer clubs such as Brighton Celtic’s predecessor from soon after the acquisition until circa 2013. The Plaintiff used it since the early 1970’s. The 2013 Code of Practice confirmed existing arrangements for the use of the field. That is as far as the Plaintiff’s evidence goes.

115. The Plaintiff does not point to any specific statements or actions in 1959 which might suggest an intention to create a trust at that time. However, it asserts that such a trust arose because the purchase of the Field was significantly financially contributed to and/or facilitated by parishioners, because of the ownership structure under which it is held and the purpose for which it was acquired. I have dealt with those points. There is no evidence of significant financial contributions by parishioners in respect of the Field in particular. To the contrary, it was acquired by the Parish at its risk and expense.

Although the May 1959 correspondence did not raise the possibility of its use other than by the GAA Club, the fact that a soccer club was quickly given access shortly after the acquisition demonstrates that the PP never envisaged restricting access to a particular code.

116. I accept the Plaintiff’s submissions that to some degree parishioners’ contributions helped to reduce the Parish’s debt (which reflected, inter alia, the cost of the Field and the new presbytery). However, that is insufficient to give rise to a trust. Otherwise, all Church assets would be subject to a similar trust. Likewise, it is clear that the structure adopted by the Parish applied (for obvious reasons given the nature of the organisation) to all property assets owned by the diocese and its parishes and thus did not imply the creation of a trust in respect of specific assets.

117. Nor does it follow from the undisputed fact that the Parish bought the site in 1959 with a view to using it as the site of a parochial hall and as a training ground for the GAA Club (and, possibly, others) that it was entering into a trust to hold the land to that purpose for ever. The fact that from the outset it envisaged building its own hall and parting with portions of the land (by sale to the developer and via the CPO) contradicts any such theory. Correspondence from the Plaintiff and their solicitors in July 2024 and the Plaintiff’s pleadings, affidavits and submissions seemed to assume that, because parishes benefitted from parishioners’ donations, a charitable trust in favour of groups of parishioners must be assumed. The logic of such an argument would imply that every Church school, hospital, playground or church ground was subject to such a charitable trust in favour of the local community or some subsection thereof, but no authority was adduced for that proposition.

118. For completeness, I will deal with various other points raised by the Plaintiff: a. nothing turns on the fact that the 1959 conveyance was from Mrs rather than Mr Cunningham. I doubt whether stakeholders cared whether the land was in Mr Cunningham’s name or his wife’s. Such details would have been confirmed by the conveyancers; Mr Sinnott could scarcely have been expected to be privy to details which have no bearing on this case.

b. The fact that legal ownership is vested in the First Defendant, the latter’s charitable status, the tax exemptions sought on the CPO disposals and the provision as to charitable status in the draft contract with the GAA club do not assist the Plaintiff. Unchallenged evidence confirms that, for obvious reasons, legal title to all real estate owned by the Archdiocese is vested in the First Defendant, which would claim charitable status for its activities generally – whether in relation to churches, schools, hospitals or, as in this case, sports grounds. It is hardly surprising that the First Defendant would routinely seek to avail of charitable tax exemption as in respect of the CPO compensation. None of those points suggest a charitable trust in respect of the Field in favour of a specific group of parishioners. c. The Plaintiff’s references to the First Defendant's Constitution on the same basis are also misconceived. As the affidavits confirm, it holds title to all property of the Archdiocese and its parishes, including the Field. That does not imply a trust as alleged by the Plaintiff. The Defendants’ affidavits comprehensively explained the basis on which the Field was acquired. The Plaintiff has not adduced plausible countervailing evidence. As the PP noted, “the parish is entrusted to the PP who runs it, including the church, any Parochial Hall and other parish assets, while attending to the congregation's spiritual development. The first defendant holds the legal ownership of its assets. The PP is not a beneficial owner in the ordinary sense as his role has no legal personality and the identity of the parish priest changes, nor is he personally beneficially entitled to the parish assets”. (Para. 6) I accept that there is no legal nexus between the First Defendant, its charitable status and the children of the parish and/or the parishioners.

d. The Plaintiff then poses the question as to who is beneficially entitled to the parish’s assets? Such a question might raise fascinating issues of canon as well as Irish law, including the status of the Archbishop as a corporation sole, but I do not need to determine that issue. The point for present purposes is that the legal and beneficial title to the Field vests in the Defendants and is not the subject of a charitable trust as alleged. Those charged with the governance of the parish and the governance of its assets are entitled to dispose of such assets. I have seen no reason to impugn their proposed actions. e. Likewise, I disagree with the Plaintiff’s reliance on Clause 12 of the conditions of sale. Such a provision would doubtless have appeared in any contract for the sale of parish or diocesan land. Of itself, it does not imply that the Field was held on behalf of a specific group of parishioners as alleged. f. The Plaintiff relies on the from the Archdiocese’s solicitor’s 6 February 1962 letter asking the Archbishop to sign documents for the sale of the frontage. However, his signature was needed as he, along with the PP were "the trustees of the property". The letter does not suggest that the property was held on trust for a specific group or purpose. It was held on the same basis as other parish property. A similar letter would presumably have been required for the disposal of other parish assets such as a school or presbytery. g. Although the Statement of Claim states that the Rugby and GAA clubs spent significant resources on the maintenance of and improvements to the Field, the Plaintiff’s affidavits did not offer any detail, nor was the point pressed in submissions. The Code anticipated that the clubs would share costs such as utility bills but there is no evidence of significant financial investment.

h. The Plaintiff relies on remarks apparently made by Bishop Roche at a meeting organised by the rugby club, but little weight can be attributed to off the cuff remarks "in a personal capacity and not as a representative of the diocese". I presume that the Bishop’s reference to being “a trustee" of the Field reflected the First Defendant’s role in respect of all diocesan and parish assets. i. The Plaintiff’s claim that the First Defendant has no power of sale or disposal for the Field is based on its premise that the asset is subject to a charitable trust as alleged rather than being beneficially owned on behalf of the PP. The argument falls away with the rejection of its premise as does the suggestion that regulatory approval for the transaction would be required. j. Mr Cassidy's affidavit repeatedly said that he reserved the right to test the Defendants’ affidavit evidence by cross examination and/or rebuttal evidence and that the need to do so was fatal to the application but there is no conflict of fact which needs to be resolved at primary hearing. The Plaintiff’s case depends on speculative assumptions and assertions not on evidence; in view of the overwhelming evidence of the actual basis for the acquisition and operation of the field there is no substantive dispute of primary fact which would require cross examination. k. Mr Cassidy suggested that the proposed disposal effectively confines the Field’s future use to GAA activities which was inconsistent with the basis for its acquisition and with its ongoing use by sporting organisations. I disagree with the premise for such a conclusion since the disposal required the GAA Club to maintain the rights to use the Field previously enjoyed by other clubs. However, I have not identified any basis for his assertion that the parish was obliged to continue to use the field for sporting purposes in any event.

l. I discount the Plaintiff’s references to Brighton Celtic, its ownership of a facility on the Field and events alleged in 1983. The deponent had no first-hand knowledge of such matters and has not satisfactorily deposed to his source of knowledge or exhibited sufficient documents to support his contentions. Most importantly, Brighton Celtic’s position with regard to its entitlement to use the Field was made clear when it subscribed to the Code and, even more so, when it accepted the PP’s edict expelling it from the Field. If the club, which had been using the Field for decades, believed it had legal entitlements it seems unlikely that it would have gone quietly.

It would have been open to the Plaintiff to solicit an affidavit from a representative of Celtic. It did not do so. m. I note the Plaintiff’s concern that the side letter could not be trusted as it contravened GAA rule 5.1 which banned the use of any GAA premises by other sporting codes, a policy often seen as controversial, anachronistic and inappropriate. Although the GAA has softened its stance on occasions (even allowing the oval ball to be used on the hallowed turf of a well-known stadium named after another Catholic bishop), the rule remains in force, albeit the GAA often seems to adopt a Nelsonian blind eye, adopting the "don't ask don't tell” policy once favoured by the US military in a different context.

However, the Plaintiff feared that if the issue should be drawn to the GAA's attention the GAA Club could be required to withdraw access to the Field from the Plaintiff. It seems doubtful that the GAA would in practice be so insensitive as to adopt such an approach given the potential legal difficulties and expenses and the s public opprobrium which any backsliding on the agreement with the Defendants would inevitably provoke. Furthermore, since the lease was granted on basis that the Rugby Club would be allowed to continue to use the field as before, it is by no means clear that the GAA Club would be legally entitled to renege on that commitment even if called upon to do so by the national organisation.

Accordingly, I doubt that this fear is well grounded but, even if was, it would not oblige the Defendants to refrain from entering into the proposed transaction. n. Although the Plaintiff referred to a 12 January 1981 letter from the then chair of the Parish Finance Committee, that document was not exhibited. Even if, as the Plaintiff says, it stated that the field was mainly used by Brighton Celtic football club, that would simply reflect the author’s then understanding of the usage position. It would not determine whether a trust was created in 1959. o.

Nor do I consider pertinent the Plaintiff’s hearsay references to Brighton Celtic taking the lead in the proposals for the construction of a new pavilion in 1983 or being the owner of the building on the field. If Brighton Celtic maintained that it had acquired rights it would have raised the issue at the appropriate time.

119. Although the Plaintiff asserted that the purchase of the Field was significantly financially contributed to and/or facilitated by parishioners there was no evidence before the court to suggest that monies were collected from the parishioners or given by them on the basis that the Field was to be bought by the First Defendant and held in trust by them. To the contrary, the evidence shows that the PP borrowed to buy the Field at his own risk. As Fr Bradley has put it, the cost of the Field was part of the parish debt:

" a debt that the parish was solely responsible for and it had no way of knowing if would be assisted by parishioners and reducing the debt." The essence of the Plaintiff’s case seemed to be its contention that the purchase of land by and on behalf of the parish with the intention that it should be used, inter alia, as a sports field, is sufficient, without more, to create a charitable trust in favour of all parishioners, or individual parishioners or groups of parishioners. That proposition is unsustainable. Such a proposition would have far-reaching consequences for all church property, and no authority has been cited to justify it. Accordingly, the Plaintiff has not demonstrated a reasonable sustainable cause of action or set out a credible basis for the assertion that the Field was purchased in 1959 on trust for the benefit of all of the children or young people of the parish.

Conclusion

120. As the authorities make clear, the Court’s function in this application is not to determine the merits on the papers but to determine whether, taking the Plaintiff’s claim at its height, it is bound to fail. The number of affidavits on this application and the length and complexity of the parties’ submissions coupled with the intricacy of trust law might, at first blush, suggest that it would be impossible to reach such a conclusion and that the case should necessarily proceed to plenary hearing. However, that is not my conclusion. I have set out the evidence and the submissions in detail to highlight the fact that the contemporaneous documentary evidence overwhelmingly supports the Defendants’ position, as does the cogent affidavit evidence from those in a position to offer relevant first-hand testimony. By contrast, the Plaintiff’s evidence in respect of the crucial issues is speculative, second hand (and unattributed) and is not borne out by the documentary evidence. There was no satisfactory explanation for the Plaintiff’s acceptance of the Code, which contradicts its current position.

121. Key factual assertions in the Statement of Claim are evidently unsustainable and, shorn of those factual premises, the residue of the claim boils down to the proposition that because parishioners’ contributions presumably helped pay for the Field, a charitable trust in favour of the children and young people of the parish must be assumed, despite the absence of contemporaneous evidence of an intention to establish such a trust. That proposition is legally unsustainable. Accordingly, on the basis of my review of the documents and the affidavits I am satisfied that the Defendants have met the high standard set in cases such as, inter alia, Keohane, Burke, O’Malley and Beades, and established that the case has no reasonable chance of success. To borrow the language of Lopes, I am satisfied that the Plaintiff’s factual allegation amounts to no more than a mere assertion, for which no evidence or no credible basis for believing that there could be any evidence, is put forward and it is an abuse of process to maintain a claim based on a speculative factual assertion where there is no evidence available for that assertion and no reasonable basis for believing that evidence could become available at the trial to substantiate the assertion. To employ the test succinctly summarised by Simons J. in O’Malley, I am satisfied that; (a) there is no credible basis for suggesting that the facts are as asserted; and (b) the proceedings are bound to fail on the merits.

122. The Plaintiff has not suggested that there would be any legal impediment other than the alleged charitable trust to prevent the parish from disposing of the Field as it saw fit. For the reasons outlined above, in view of the overwhelming documentary and affidavit evidence and particularly in view of the terms of the 2013 Code, I am satisfied that the claim that the Field became the subject of a charitable trust on its acquisition in 1959 has no reasonable prospect of success and is bound to fail. I agree with the view taken when the parish investigated the matter in 2024, that it was the owner and free to dispose of the field as it saw fit, the same

conclusion apparently confirmed by the solicitors who handled the acquisition in 1959 when asked about the matter on the occasion of the proposed school development in the mid-70’s and again in 1979/1981 in the context of the CPO and the conclusion reflected in the terms of the Code to which all stakeholders, including the Plaintiff, subscribed. Accordingly, the Defendants were free to enter into the proposed agreement with the GAA club.

123. In the light of my conclusion that there is no evidence of a charitable trust, it follows that there was no legal impediment to the disposal of the Field. Although not obliged to require the GAA club to agree to the stipulation with regard to the Plaintiff’s ongoing use of the field, it was appropriate to do so, in keeping with the "moral obligation" to which Fr Leahy had referred back in 1979. The parish’s approach to the disposal was fair, as was the proposal outlined in its solicitors’ 17 July 2024 letter. It follows that the Plaintiff’s objections to the side letter (which are inconsistent to its accession to the Code of Practice), and the notice of termination are misconceived as are its claims to have suffered loss damage inconvenience and expense due to the Defendants’ wrongdoing.

124. It would be wrong to grant the application if the outcome depended on of factual issues requiring plenary hearing or of complex legal issues which could not adequately be disposed of in the course of the application. Accordingly, I would have been disposed to reject the application if, for example, my decision had purely turned on the object of the alleged trust. While there are inconsistencies in the Plaintiff’s position on that issue, those factual issues and any arcane or controversial legal issues concerning the principles pertaining to the establishment of a trust would be matters for plenary hearing. However, the far more basic issue – the complete absence of any evidence of an intention to create a charitable trust (and the overwhelming countervailing evidence means that this application does not necessitate the resolution of factual controversies or complex legal issues. It is the absence of any evidence of intention in 1959 to create a charitable trust which is determinative.

125. For the reasons outlined, I am satisfied that the claim is bound to fail and will grant the application. It follows that the Defendants’ undertakings must be released and that they are presumptively entitled to their costs on a party and party basis. I will list the proceedings on

12 March at 10.30 a.m. for final orders.

APPEARANCES

James Dwyer SC and Davy Lalor BL instructed by Woodcock LLP, for the Plaintiff Hugh O’Neill SC and Mema Byrne BL, instructed by Mason Hayes & Curran LLP, for the Defendants.