Dunnes Stores -v- An Bord Pleanala [2016] IEHC 263 (26 May 2016)

Judgment Title: Dunnes Stores -v- An Bord Pleanala Neutral Citation: [2016] IEHC 263 High Court Record Number : 2015 49JR Date of Delivery: 26/05/2016 Court: High Court Judgment by: Barrett J. Status: Approved Neutral Citation: [2016] IEHC 263 THE HIGH COURT 2015/49JR IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED) AND IN THE MATTER OF AN APPLICATION BETWEEN: DUNNES STORES Applicant - and - AN BORD PLEANÁLA Respondent - and - KILKENNY COUNTY COUNCIL First-Named Notice-Party - and - DEERLAND CONSTRUCTION LIMITED Second-Named Notice-Party JUDGMENT of Mr Justice Max Barrett delivered on 26thMay, 2016. TABLE OF CONTENTS (Numbers in brackets are paragraph numbers) SECTION A GENERAL [1] Part 1 Overview [1] Part 2 Purported Points of Law Arising [5] Part 3 Principles Applicable to Present Application [7] I. Overview.[7] II. Acceleration of Planning Process.[9] III. The Nature of the Development.[13] a. General. [13] b. The ‘Ferrybank Centre’. [15] SECTION B AN ACT NOT PROPER IN THE REGULAR CONDUCT OF PROCEEDINGS [21] Part 1 Overview [21] Part 2 Exceptional importance? [23] I. Consideration of Applicable Principle.[24] II. Delighted Developers? [27] III. Lack of Novelty.[29] Part 3 Sparingly Exercised Jurisdiction [32] Part 4 Law in a State of Uncertainty? [34] Part 5 Refusal of Leave [44] Part 6 Point Arises from Decision of High Court? [46] Part 7 Exceptionality, Desirability are Cumulative Criteria [49] Part 8 Transcendent Nature Alone Insufficient [51] Part 9 The Meaning of ‘Exceptional’ [56] Part 10 Merely to Raise a Question of Law is Insufficient [58] Part 11 Affirmative Public Benefit from Appeal Necessary [60] SECTION C THE PURPORTED NECESSSITY TO DECIDE ON THE PLANNING ISSUES FIRST [62] Part I Overview [62] Part II Exceptional importance? [64] i. General. [65] ii. ‘But for…’ [70] Part III Sparingly Exercised Jurisdiction [73] Part IV Law in a State of Uncertainty? [75] Part V Refusal of Leave [80] Part VI Point Arises from Decision of High Court? [82] Part VII Exceptionality, Desirability are Cumulative Criteria [84] Part VIII Transcendent Nature Alone Insufficient [86] Part IX The Meaning of ‘Exceptional’ [88] Part X Merely to Raise a Question of Law is Insufficient [90] Part XI Affirmative Public Benefit from Appeal Necessary [92] SECTION D CONCLUSION [94] SECTION A GENERAL Part 1 Overview 1. On 13th November, 2015, this Court gave judgment in Dunnes Stores v. AnBord Pleanála and Ors [2015] IEHC 716 . In its judgment the court dismissed Dunnes’ application for judicial review of a decision of An Bord Pleanála, having arrived at the conclusion that the sole object of the application was to enable Dunnes “ to delay or avoid compliance with its contractual obligation to fit-out and occupy the anchor store [in Ferrybank Retail Centre] and/or to facilitate the creation of a contrived legal justification for Dunnes’ long-time failure to comply with those obligations” (para.81). 2. Dunnes considers that the court’s decision of last November involves two points of law of exceptional public importance and argues that it is desirable in the public interest that an appeal should be taken to the Court of Appeal. So what, one might ask, is Dunnes doing back before the High Court? After all, an appeal from the decision of a trial court would usually proceed without further regard to the trial judge, save perhaps as to the commencement of any order that falls to be formulated, and such necessary arrangements as require to be effected, pending such appeal. 3. The difficulty which presents for Dunnes is that by means of s.50A(7) of the Planning and Development Act 2000, as amended, the Oireachtas has decided, it would appear with the intention of bringing some finality to planning matters at the earliest possible opportunity, that no appeal shall lie from a decision such as that of 13th November last, “save with leave of the [High] Court which leave shall only be granted where the [High] Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken…”. 4. Dunnes has therefore returned to this Court to seek such leave. As can be seen from the quoted text, it has two hurdles to jump before it can be granted the leave sought. First, it must establish that there is a point of law of exceptional public importance arising. One will suffice, though Dunnes (mistakenly) considers that it has identified two. Second, Dunnes must establish that it is desirable in the public interest that an appeal should be brought on the said point(s) of law. Part 2 Purported Points of Law Arising 5. Dunnes considers that the following two points of law of exceptional public importance arise from the court’s decision of last November: (1) Is it correct as a matter of law for the court to dismiss proceedings brought by way of judicial review as an abuse of process on the sole basis that the applicant (here Dunnes) had a collateral purpose or motive in bringing the proceedings, in the absence of some wilful act (or omission) in the use of the process that is not proper in the regular conduct of proceedings? (2) Is it correct as a matter of law for the court to dismiss proceedings brought by way of judicial review as an abuse of process on the sole basis that the applicant had a collateral purpose or motive in bringing the proceedings, without entering into a consideration of the grounds in the proceedings to determine whether the proceedings would have been brought ‘but for’ the collateral purpose? [Emphasis added]. 6. Both questions are concerned with the court’s power to dismiss judicial review proceedings as an abuse of process with the underlined text being the text that renders each of the questions different. Part 3 Principles Applicable to Present Application I. Overview. 7. In a rare moment of agreement, all of the parties to the within proceedings consider that the principles broadly applicable to applications for a certificate such as that now sought were fairly summarised a decade ago by MacMenamin J. in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 , at pp. 4-5: “1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement. 2. The jurisdiction to certify such a case must be exercised sparingly. 3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases. 4. Where leave is refused in an application for judicial review, i.e. in circumstances where substantial grounds have not been established a question may arise as to whether, logically, the same material can constitute a point of law of exceptional public importance such as to justify certification for an appeal…. 5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing. 6. The requirements regarding ‘exceptional public importance’ and ‘desirable in the public interest’ are cumulative requirements which although they may overlap, to some extent require separate consideration by the court…. 7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word ‘exceptional’. 8. Normal statutory rules of construction apply which mean inter alia that ‘exceptional’ must be given its normal meaning. 9. ‘Uncertainty’ cannot be ‘imputed’ to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question. 10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.” [Emphasis in original] 8. Each of the above-mentioned points is considered in greater detail in Sections B and C below. Section B is concerned with the first proposed ground of appeal, i.e. the purported requirement for some act that is not proper in the regular conduct of proceedings. Section C is concerned with the second ground of appeal, i.e. the purported need for the court to decide on the planning issues first. II. Acceleration of Planning Process. 9. The statutory purpose of the requirement for a certificate to appeal is, per Clarke J. in Arklow Holidays v. An Bord Pleanála [2007] 4 IR 112 , 115, that “ there should be a greater degree of certainty and expedition in the determination of planning judicial reviews”. The courts have repeatedly emphasised that applications for a certificate to appeal must be considered in light of this purpose. In Irish Asphalt v. An Bord Pleanála [1996] 2 I. R. 179, Hamilton C. J. observed, at 186, that: “[T]he purpose of this Act[the applicable statute was then the Local Government (Planning and Development) Act 1992] was to speed up the planning process by shortening litigation and by eliminating applications for judicial review which were devoid of substance.” 10. In KSK Enterprises v. An Bord Pleanála [1994] 2 I. R. 128, Finlay C. J. observed, at 135, again in the context of the Act of 1992, that: “[I]t is clear that the intention of the legislature was greatly to confine the opportunity of persons to impugn by way of judicial review decisions made by the planning authorities and in particular one must assume that it was intended that a person who has obtained a planning permission should, at a very short interval after the date of such decision, in the absence of a judicial review, be entirely legally protected against subsequent challenge to the decision that was made and therefore presumably left in a position to act with safety upon the basis of that decision.” 11. It follows, therefore, that an applicant for a certificate must identify and establish that there is a countervailing public interest particular to a case which means that a certificate should be granted and a development delayed. This is consistent with the tenth principle adumbrated by MacMenamin J. in Glancré, that some affirmative public benefit from an appeal must be identified. 12. In passing, the court notes that it was suggested by counsel for Dunnes at the hearing of the within application that issues of finality and delay do not present in these proceedings because they are concerned with a retention permission. However, the court understands that in the arbitration proceedings which feature as a backdrop to these court proceedings, Dunnes is now withdrawing its reliance on the purported planning concerns that were the subject of these proceedings. So the granting by the court of a certificate, which would necessarily raise some doubt as to whether the court’s decision would be upheld or not on appeal (simply because no-one can accurately predict the future outcome of appellate proceedings), is something that would undoubtedly be relied upon in the arbitration proceedings and which would have the potential further to delay the opening of the Ferrybank Centre. This is an aspect of matters to which the court can properly have regard in its deliberations and considerations. III. The Nature of the Development. a. General. 13. Case-law indicates that the court, in assessing whether it would be in the public interest to permit an appeal, must, to borrow from the judgment of Clarke J. in Arklow Holidays, at 122, take account of the “nature of the development proposed and the potential consequences of a significant further delay in the matter being finally disposed of before the courts”. 14. This last-mentioned exercise involves balancing, on the one hand, the importance of the issue which the applicant seeks leave to appeal and, on the other hand, the importance of the project and the consequences of the likely delay that would be incurred. Notably, in Arklow Holidays, Clarke J. went so far as to conclude that even though one of the points of law raised was of exceptional public importance, it would not be in the public interest to grant leave to appeal because of the delay that would be caused to the construction of a needed waste-water treatment plant. b. The ‘Ferrybank Centre’. 15. When it comes to the Ferrybank Centre, the development that is at the heart of these proceedings, the court would make the following observations. 16. First, the proceedings of last November, compounded by the bringing of the present application, have significantly delayed the opening a major retail development, the ‘Ferrybank Centre’ that will provide employment for hundreds of people in Kilkenny and Waterford, as well as being a major new retail and recreational amenity for the people of the South East. Any appeal would likely cause significant further delays. 17. Second, practical completion of the Centre was achieved in August 2009, almost six and a half years ago. Apart from the occupation of a library and office bought by Kilkenny County Council, it has sat idle since. The public interest in proper planning and development is ill-served by having ‘ghost’ shopping centres that sit dormant for years on the outskirts of urban centres, in this case the largest urban centre in South East Ireland. 18. Third, loans relating to the development of the Ferrybank have been taken over by NAMA and so, ultimately, the taxpayer. The earlier the Centre opens, the lower will be the cost to the taxpayer of having taken over Deerland’s borrowings. 19. Fourth, not a single member of the public, nor any other interested party, has objected to the planning permission in question. 20. In light of the foregoing, even if the court were to conclude that its decision of last November gave rise to any “ point of law of exceptional public importance” - and, as will be seen below, the court has reached the precisely opposite conclusion - the court, having regard to the above factors would have concluded that it is not in the public interest to permit an appeal. Indeed, given that the court concluded in its judgment of last November that Dunnes commenced its proceedings for the purpose, inter alia, of delaying compliance with its contractual obligation to open the anchor store at the Ferrybank Centre, an illegitmate objective that amounts to an abuse of process, allowing Dunnes to bring an appeal would allow Dunnes to advance the very collateral objective that led to the dismissal of its proceedings. However, the court is perhaps getting somewhat ahead of itself in this regard: the issue of whether it would be in the public interest to permit an appeal does not actually arise because the court concludes hereafter that neither of the purported points of law of exceptional public importance contended by Dunnes to arise from the court’s judgment of last November in fact presents. SECTION B AN ACT NOT PROPER IN THE REGULAR CONDUCT OF PROCEEDINGS Part 1 Overview 21. The first point of law of exceptional public importance that Dunnes posits as arising from the court’s decision of last November is whether it is correct as a matter of law for the court to dismiss proceedings brought by way of judicial review as an abuse of process on the sole basis that the applicant (here Dunnes) had a collateral purpose or motive in bringing the proceedings, in the absence of some wilful act (or omission) in the use of the process that is not proper in the regular conduct of proceedings. 22. The court proceeds below to subject the just-mentioned question to the type of analysis anticipated by MacMenamin J. in his judgment in Glancré, the initially quoted text under each of the following headings being taken from the above-quoted segment of that judgment. Part 2 Exceptional importance? 23. “1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.” I. Consideration of Applicable Principle. 24. It is clear from the case-law that a point of law of exceptional public importance is one which transcends the facts of an individual case. In Kenny v. An Bord Pleanála (No 2) [2001] 1 IR 704 , one of a number of cases concerning the development by Trinity College of student halls in Dartry, McKechnie J.notes the observation in the judgment of Finlay C. J. in Irish Press plc v. Ingersoll Irish Publications Ltd. [1995] 1 I. L. R. M. 117, 120, that a point of law purported to arise in an application such as that now presenting has to be one of exceptional public importance that “transcends well beyond the individual facts of the case important as they are in every case”. 25. In general a point of law of exceptional public importance is one which requires determination so as to enable the court to administer the law not only in the particular case before it, but in future cases. This was the approach adopted in Lancefort v. An BordPleanála [1998] 2 IR 511 , in which Morris P., after reviewing the case-law in relation to the grant of certificates to appeal by the Court of Criminal Appeal, stated as follows, at 517: “[I]t seems to me that in all cases the law, at the time of granting the certificate, remained in a a state of uncertainty and it was the common good that the law be clarified so as to enable the courts to administer the law not only in the instant case but in future cases.” 26. A point of law is not one of exceptional public importance where its application is dependent on the particular facts of the case. So, in Neville v. An BordPleanála (High Court, O’Caoimh J., 12th October, 2001), O’Caoimh J. refused to grant leave to appeal in respect of two points of law which he considered essentially to involve issues of fact. And in Begley v. An Bord Pleanála (High Court, O’Caoimh J., 23rd May, 2003), O’Caoimhagain took the same approach. II. Delighted Developers? 27. In support of its contention that the questions of law raised by it are of exceptional public importance, Dunnes asserts that other developers may rely on the court’s decision as a basis on which to challenge planning-related judicial reviews. This is a bald assertion, no more. But even if the court accepts for a moment that its judgment of last November involves some novel turn in the law - and, for the avoidance of doubt, the court does not accept this; its judgment of last November involved but the mundane application of existing principle - any fair reading of that judgment will show just how heavily the court’s decision rests on a detailed and careful analysis of the particular and peculiar circumstances of a case that, inter alia, has seen Dunnes bring- in what must be a first for planning law - a court challenge to a planning permission to which it had no real objection and which had caused it no harm. The court’s decision is, in short, a decision that is very much rooted in the facts that presented before the court last November. 28. In the next section of its judgment below, the court considers how its judgment of last November conforms to the logic of Quirke J. in Quinn Group v. AnBord Pleanála [2001] 1 I. R. 505. The court mentions that judgment at this juncture because tellingly, despite trawling through precedents, counsel for Deerland have been unable to find a single reported judicial review application - not one - in which Quinn Group has been relied upon in the decade and a half since it was reported. It has been cited in several non-judicial review proceedings; however,it appears that Deerland is the first developer or respondent in the last 15 years or so to rely upon Quinn Group as an authority in judicial review proceedings. So, although the court is no soothsayer, the notion that developers will be rushing to court to rely on its judgment of last November, a judgment that (a) conforms to Quinn Groupand (b) is so clearly rooted in its own particular and peculiar facts, seems to the court to be fanciful. That said, if Dunnes or other would-be anchor tenants are minded to bring judicial review proceedings in circumstances akin to those which presented last November - circumstances that are so peculiar it seems unlikely, albeit not impossible, that they would arise again -developers might, and might be right, to seek to pray in aid the decision in Quinn Group or even this Court’s judgment of last November. But they could not pray in aid some novel legal change; for the law is long established, and has goneunchanged by this Court. III. Lack of Novelty. 29. Turning then to Quinn Group, that was a case in which the High Court dismissed a planning challenge on the sole basis of collateral purpose. So, despite suggestion to the contrary, the decision of the court last November is not the first time that a judicial review application has been dismissed on the basis of collateral purpose alone. Dunnes contends that Quinn Group is distinguishable from the present case because there the plaintiff had failed openly to disclose its interest in earlier proceedings. 30. Ultimately, practically all earlier cases are somehow distinguishable on their facts from those that follow. But even if one has regard to the technical distinction contended for by Dunnes, it can quickly be seen that the want of disclosure in Quinn Group is not really a distinguishing factor at all. This is so for at least two reasons: - first, the court in Quinn gave no indication that want of full disclosure was an ‘additional ingredient’ without which it would not have had jurisdiction to dismiss for abuse of process. On the contrary, Quirke J. makes clear, at 510, that he had jurisdiction to dismiss a judicial review application on grounds of improper purpose alone: “I must be satisfied by way of evidence that the plaintiff, in commencing these proceedings, (1) has an ulterior motive (2) seeks a collateral advantage for itself beyond what the law offers and (3) has instituted these proceedings for a purpose which the law does not recognise as a legitimate use of the remedy which has been sought.” - second, and the court takes no satisfaction in pointing this out, Dunnes has itself been guilty of making curious averments about its true motives, the circumstances in which its purported planning concerns arose, and the reasons why it commissioned the planning report of in September 2012. The court would but refer in this regard to certain of the findings of fact made in its judgment of last November, at, inter alia, 12, 20, and 27 respectively (and there is more): “The picture painted…seems not to tally fully with the wider truth of matters”; “[T]he idea that Dunnes somehow became aware ‘in or about September 2012’ of some planning issue arising rings hollow. Dunnes was aware, right through the construction process of what was going on”; and “[It] is inconceivable that, in September 2012 - three years after practical completion - Dunnes had a Damascene moment in which it was struck by the sudden realisation that there were planning issues presenting at Ferrybank”. 31. So even if the test for dismissing proceedings on the basis of collateral purpose did require some additional element such as a lack of disclosure - a formulation that, with every respect, appears entirely unprecedented in the annals of Irish case-law- Dunnes would, unfortunately for it, fail that test. Part 3 Sparingly Exercised Jurisdiction 32. “2. The jurisdiction to certify such a case must be exercised sparingly.” 33. The court notes the caution that is required of it in an application such as that now presenting. The clear intention of the Oireachtas in introducing the certification/leave requirements which Dunnes now faces is that, in the interests of certainty and finality, the vast majority of planning cases should end in the High Court without onward appeal. Part 4 Law in a State of Uncertainty? 34. “3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases.” 35. Echoes of the above-quoted requirement are also to be found, for example, in Lancefort, Arklow Holidays, and Dunnes v. An BordPleanála [2015] IEHC 387 , the last of which, as it happens, was another recent planning-related judicial review application brought by Dunnes regarding a grant of planning permission to a shopping centre. 36. The legal principles applicable to the dismissal of proceedings as an abuse of process are well-established. The court has drawn together the applicable principles in its judgment of last November; however, it would be the first to admit that there is nothing new in its summary of the applicable law. Notably, it was conceded by Dunnes at the hearing of the within application that the principles as stated by the court in its previous judgment were correct. If the court merely applied established principles, correctly identified, to the facts at hand, then there simply cannot be any point of law of exceptional public importance arising. 37. Dunnes has sought to portray the court’s decision of last November as a radical departure from previous authorities and one which creates new law because it is the first judicial review where proceedings have been dismissed on the basis of collateral purpose alone. All previous decisions in this area, Dunnes contends, contain an additional ingredient that did not present here. Various formulations of this missing dimension have been offered by Dunnes but, in essence, Dunnes contends that what was required for this Court to proceed as it did last November, was some wilful act that is distinct from the use of the process per se, in a phrase ‘something improper in the conduct of the proceedings’. 38. To the court’s mind, Dunnes hits a serious difficulty with its ‘additional ingredient’ line of argument. The difficulty is this: none of the leading authorities cited by the court in its judgment of last November identify the ‘additional ingredient’ for which Dunnes contends as an essential and necessary prerequisite to, or some ever-present feature of cases that involve, the dismissal of proceedings as an abuse of process. 39. Some reliance has been placed by Dunnes, in advancing the ‘additional ingredient’ line of contention, on the decision of the Court of Appeal of England and Wales in Land Securities plc v. Fladgate Fielder [2009] EWCA Civ 1402 . This last-mentioned decision is, of course, persuasive authority only, and some care is required when relying on propositions formulated by the common law courts of foreign jurisdictions, even such authorities as emanate from the oft-esteemed law-courts of our nation’s closest neighbour; after over nine decades of separate evolution, the common law of Ireland can sometimes be uncommonly different from that of England and Wales. But even if one takes Land Securities as an accurate reflection of the present state of our own common law, it is simply not authority for the proposition that improper purpose alone offers insufficient basis on which to dismiss proceedings. In its submissions, Dunnes has made some play of the following observations of Moore-Bick L. J. in Land Securities , at para.89: “[I]t seems to me that whether the question is one of staying or striking out the proceedings themselves or of the existence of a cause of action, the claimant must be able to establish that the defendant’s predominant purpose in bringing the proceedings is not to obtain the remedy that the law offers (disregarding for this purpose the use he may seek to make of that remedy once he has obtained it) but to achieve some other object that lies outside the range of remedies that the law grants.” 40. The court struggles to see what difference exists between the above observation and, for example, the observations of the court in its original judgment, following a review of some of the principal Irish case-law in this area, that: “The term ‘abuse of process’ connotes that the process is employed for a purpose other than the attainment of the claim in the action” (para.66), and “If there is a reasonable relationship between (a) a plaintiff’s intended result and (b) the scope of the remedy available in the proceedings brought, there is no ‘abuse of process’”. 41. That the Court of Appeal of England and Wales appears to have arrived at a broadly similar place as regards its understanding of the common law of that jurisdiction is of interest as a matter of comparative law, but the court would put it no higher than that. 42. Testament perhaps to the age that we live in, and the sheer breadth of information that is now electronically available, counsel for Dunnes have managed to unearth two cases, one from South Carolina in 1967, and one from Michigan in 1977 ( Huggins v. Winn-Dixie Greenville, Inc., 1967 249 S. C. 206, and Three Lakes Association v. Whiting , 1977, 75 Mich. App. 564) which apparently support the notion that between 40 and 50 years ago in the United States (the court does not know if it was in federal courts or state courts as the text of neither judgment was placed before the court) at least two judges considered that the tort of abuse of process at that time required a wilful act in the regular conduct of proceedings. A number of difficulties arise in this regard: - first and perhaps most critically, those judgments, insofar as the court has been apprised of their content (which is next to not at all), appear to relate to the scope of the civil tort of abuse of process, not to the court’s jurisdiction to refuse relief on the grounds of abuse of process. If there are questions of law about when a party can obtain civil damages against a party that has abused the court’s processes, those issues simply do not arise in the present case. - second, as touched upon above, the court has not been furnished with copies of the cases in question, has no idea as to the context in which they arose, or whether federal or state law (whichever the cases was concerned with) has evolved in the half-century or so since they were decided. - third, there are about 40 countries worldwide that have a common law legal system, including countries as large and diverse as the United States. In that spread of countries there seem likely to be judgments that have diverged partly or wholly on all major legal issues as their respective laws have evolved over the course of hundreds of years. Leaving aside for a moment the fact that the two U. S. cases to which the court was referred appear to have been concerned with the scope of the civil tort of abuse of process and not with the court’s jurisdiction to refuse relief on the grounds of abuse of process (the matter in issue here), merely to pluck two cases from the thousands upon thousands of cases that have now been reported in those 40 or so jurisdictions and to say ‘Half a century or so ago, a couple of U. S. cases went one way, so if you are minded to go or have gone another way, that indicates some uncertainty to arise in Irish law’ is, to put matters at their mildest, a strained line of contention. In passing, this Court welcomes the fact that counsel would seek to draw from the great well of U. S. case-law, which for too long has been under-relied upon by the Irish courts. However, such case-law does need to be opened to the court, and set in context, before the distinctive genius of distinguished jurists from our sister republic across the Atlantic can properly and safely be invoked by the courts of this republic as they wrestle with the issues that arise before them for resolution. 43. There is no uncertainty in the daily operation of Irish law when it comes to abuse of process in the context presenting; and it is a truism that no common good presents in the clarification of an area of law that is already clear. Part 5 Refusal of Leave 44. “4. Where leave is refused in an application for judicial review, i.e. in circumstances where substantial grounds have not been established a question may arise as to whether, logically, the same material can constitute a point of law of exceptional public importance such as to justify certification for an appeal….” 45. This issue does not present here. Part 6 Point Arises from Decision of High Court? 46. “5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.” 47. In his judgment in Harding v. Cork County Council and Anor [2006] IEHC 450 , Clarke J. added what he described, at para. 2.2 as “ one limited caveat ” to the above-quoted element of Glancréwhich he summarises as follows, at para. 2.3: “[I]t should always be remembered that it may be possible that the court, due to inadvertence, fails to deal with a point which arose in the course of argument and which, if it be a good point, could have affected the result of the case notwithstanding the other findings made by the court and set out in the court’s judgment. It could hardly be the case that a party who might otherwise be entitled to a certificate enabling it to appeal to the Supreme Court would be deprived of that entitlement due to the fact that the court had, by inadvertence, failed to deal with an issue which was properly argued.” 48. The present case is not one in which it is contended that the court “ due to inadvertence ” has failed to deal with a point which arose in the course of argument. So the initial-quoted point from Glancréabove falls to be applied effectively as is. So far as that point is concerned, although both points of law formulated by Dunnes as arising from the court’s decision are cleverly crafted in light of the court’s judgment of last November, the court does not consider that either point of law arises out of that judgment - which, in truth, involves but a mundane application of settled law. The points identified by Dunnes simply do not flow from the court’s decision of last November. Specifically, with regard to the first point of law raised, the court would add that, in the case of that question, a false premise in any event presents. It involves the assumption that Dunnes was not guilty of any wilful act or omission in the use of the process not proper in the conduct of proceedings. But, as the court determined in its judgment of last November, many of the features of how Dunnes has pursued its purported planning concerns, such as commissioning experts to try and identify planning issues, bringing a court challenge to a planning permission to which it had no real objection and which has caused it no harm, as well as cynically deploying the planning process in a bid to avoid its contractual obligations, are all matters that rendered Dunnes’ conduct of the proceedings of last November improper. Part 7 Exceptionality and Desirability are Cumulative Criteria 49. “6. The requirements regarding ‘exceptional public importance’ and ‘desirable in the public interest’ are cumulative requirements which although they may overlap, to some extent require separate consideration by the court”. 50. As Dunnes has fallen at the hurdle of exceptionality, the issue of desirability does not fall to be addressed. Part 8 Transcendent Nature Alone Insufficient 51. “7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word ‘exceptional’.” 52. The court has already considered and dismissed the contention that its decision involves one or more points of law of exceptional public importance. This being so, it is not strictly necessary that it consider whether those points raised would transcend this case; they have, as the court mentions above, fallen at the hurdle of exceptionality. But, even were matters not so, the court would in any event have found that the legal issues which Dunnes have sought to raise do not transcend the facts of this case. 53. Before explaining why this is so, the court pauses to consider briefly the meaning of the verb ‘transcend’, a verb which is not typically encountered in everyday parlance. A Google search of the terms ‘transcend’ and ‘definition’ offers the following meaning: “to be or go beyond the range or limits of (a field of activity or conceptual sphere) ”. Simply put, therefore, the court would have had to ask itself, had it found one or more of the points of law raised by Dunnes to be points of law of exceptional public importance (and the court has not so found), that the said point(s) of law went beyond the range or limits or - perhaps a better word - the ‘parameters’ of the present case. And the court’s answer to this question would have been ‘no’. 54. Why so? Why ‘no’? Because, as the court outlined in its judgment of last November, at paras. 33 to 44, the primary focus of Dunnes’ argument at that hearing was not the substance of the legal principles governing the dismissal of proceedings brought for a collateral purpose, but rather the application of those legal principles to the facts at hand. Dunnes disputed Deerland’s allegations about its motives. Indeed, despite the court’s judgment it continues to do so now, and therein perhaps lies a critical difficulty with the present application. For while Dunnes has sought to frame its would-be appeal as raising exceptional points of law arising, its true difficulty appears to be with the court’s unexceptional application of principle to the most exceptional of facts. 55. Dunnes may disagree with the last-given depiction of matters, it may disagree with how the court applied the law, it may disagree with what the court made of the facts. In this it is perhaps not unlike half the parties who depart from the courts after judgment is pronounced; for there is ever a ‘winner’ and a ‘loser’ in court proceedings, and the latter doubtless always leaves convinced that the judge somehow got matters wrong and is perhaps buttressed in this belief by his counsel. But complaints of this nature cannot be certified as a point of appeal in an application such as that now presenting. Such complaints, complaints such as those now made by Dunnes involve questions of law or even mixed questions of fact and law which are specific to the case at hand and which, however much they may be of interest to the parties to the within proceedings, are neither of general application nor concern. Part 9 The Meaning of ‘Exceptional’ 56. “8. Normal statutory rules of construction apply which mean inter alia that ‘exceptional’ must be given its normal meaning.” 57. What is the normal meaning of exceptional? A Google search of the words ‘exceptional’ and ‘definition’ yields the following meaning: “ unusual; not typical”. So what one is looking for when it comes to “ a point of law of exceptional public importance ”, is a point of law that is of unusual or untypical importance. That is a very high hurdle to cross: the point of law must not just be important, but of unusual or untypical importance. For the reasons stated previously above, the court does not consider that this threshold has been passed. In truth, this standard is perhaps the ‘Becher’s Brook’ of s.50A applications: it is likely the fence at which many, if not most applications for a certificate to appeal will fall. Part 10 Merely to Raise a Question of Law is Insufficient 58. “9. ‘Uncertainty’ cannot be ‘imputed’ to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.” 59. The court would reiterate the points made at Part 4 above. Part 11 Affirmative Public Benefit from Appeal Necessary 60. “10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.” 61. The court considers this aspect of matters to have been adequately addressed by its observations in Part 8 above. SECTION C THE PURPORTED NECESSSITY TO DECIDE ON THE PLANNING ISSUES FIRST Part I Overview 62. The second point of law of exceptional public importance that Dunnes posits as arising from the court’s decision of last November is whether it is correct as a matter of law for the court to dismiss proceedings brought by way of judicial review as an abuse of process on the sole basis that the applicant had a collateral purpose or motive in bringing the proceedings, without entering into a consideration of the grounds in the proceedings to determine whether the proceedings would have been brought ‘but for’ the collateral purpose. 63. Again, the court proceeds below to subject this just-mentioned question to the type of analysis anticipated by MacMenamin J. in his judgment in Glancré, the initially quoted text under each of the following headings being taken from the previously quoted segment of that judgment. Part II Exceptional importance? 64. “1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.” i. General. 65. By way of preliminary observation, the court would reiterate the points it made in Section B, Part 2, Item I. 66. More specifically, as regards the purported second point of law of exceptional public importance that Dunnes contends to arise from the court’s judgment, the court notes that Dunnes has not cited a single case in which it has been determined that before arriving on a claim for abuse of process, a court must definitively adjudicate upon all other substantive legal issues in the case. There is no area of law where an analogous rule exists; the sole and unrelated exception that exists is that challenges to the constitutionality of statutes are typically broached after all other legal issues have been decided. 67. If Dunnes is contending, and the court does not understand that it is, that the facts of the present case are such that the court ought to have decided the other issues that Dunnes pressed upon the court before determining the abuse of process point, then the point of law raised, for what it is worth, is not one of public importance - and “a point of law of exceptional public importance ” is what s.50A(7) demands. 68. Lastly, the court cannot but note that at last year’s hearings, Deerland contended from the outset that the court had jurisdiction either at a preliminary stage or following the full hearing of the action to dismiss the proceedings. This legal proposition was never contested by Dunnes. Nor did it press upon the court the novel proposition that it must as a matter of principle decide on all other legal issues before the abuse of process claim. In point of fact, Dunnes contended that the application to dismiss ought to have been brought as a preliminary matter (a contention rejected by the court in its judgment), so contending in effect that the abuse of process point ought to have been decided before the other issues arising, i.e.the very opposite of what Dunnes now contends. The foregoing is a sequence of events that leaves the court with the decided impression that Dunnes, to borrow a colloquialism, ‘wishes to have its cake and eat it’. But be that as it may, it is clear from the decision in Stack Shanahanv. An Bord Pleanála [2015] IEHC 348 that Dunnes cannot raise a question of law that was not advanced at the hearing. 69. Charleton J. observed in Oltech Systems (Ltd.) v. Olivetti UK Limited [2012] IEHC 512 , para. 8that “ experience demonstrates that there is little that cannot be argued ”. Experience teaches too that there are few if any judgments from which counsel learned in the law cannot fashion some tantalising legal issue. But just because an issue of law may be contended to present does not mean that it does present. And even if it does present, its existence alone does not suffice to make it a point of law of exceptional public importance. There is nothing before the court to suggest that the second point of law so carefully crafted by skilful counsel arises in truth from the court’s judgment. Even if it does arise, there is nothing to suggest that it is a point of law of exceptional public importance. ii. ‘But for…’ 70. As to the ‘but for’ dimension of the purported second point of law of exceptional public importance, the court, when identifying in its judgment of last November certain principles generally applicable to abuse of process, as opposed to identifying a particular point of law presenting in the case before it, noted that where a party has mixed (proper and collateral) objectives, discerning whether there is abuse involves answering the question ‘If it were not for the collateral purpose (so if there was only the legitimate purpose), would the plaintiff have commenced the proceedings?’ However, this aspect of the law was not engaged in last November’s case because the court was of the view that Dunnes did not have mixed objectives, merely collateral ones, as the court considered itself to have made clear, inter alia, in the opening and closing paragraphs of its judgment: “[W]hy have these proceedings been commenced? If truth be told, they have nothing to do with planning law and everything to do with Dunnes securing an advantage for itself in a long-running contractual dispute with Deerland and National Asset Loan Management Limited” (para.1), and “For the reasons stated above, the court finds that the true object of this judicial review application is to enable Dunnes to delay or avoid compliance with its contractual obligations to fit-out and occupy the anchor store and/or to facilitate the creation of a contrived legal justification for Dunnes’ long-time failure to comply with those obligations. These purposes are entirely collateral to the remedies being sought in the within application and have no connection to the objects which the public law procedures now being invoked by Dunnes were designed to achieve. That this is the true purpose of Dunnes is not a matter of conjecture or surmise. It is the irresistible and logical conclusion to be drawn from the detailed consideration of the facts in which the court has engaged above. The court refuses the reliefs sought, declines to enter into any consideration of the purported planning-related issues raised by Dunnes, and dismisses the proceedings as involving an ‘abuse of process’.”(para.81). 71. The substantive merit of proceedings is of no relevance to the issue of whether proceedings should be dismissed as an abuse of process. Dunnes has cited no case to support this proposition. Indeed, it has cited a case - Land Securities - which is authority for the directly contrary proposition, EthertonL. J. noting as follows, at para. 59: “[I]n cases of abuse of process, it is irrelevant whether or not there was reasonable or probable cause for the proceedings, or in whose favour they ended, or whether they have ended at all”. 72. This is a line of reasoning with which this Court would respectfully concur. The court’s decision not to engage in a full analysis of the merits of the planning issues was perfectly consistent with the ordinary practice of the courts, consistent with longstanding precepts of mootness and also a proper judicial reticence ever to decide legal issues when it is not necessary to do so in order to decide a case. Given the court’s findings about Dunnes’ motives and its mention, at para. 77 of its judgment, by reference to the decision in Quinn Group, to its being: “desirable and consistent with proper public policy that the interests of bona fide litigants should “have precedence over the rights of those who wish to litigate points of law which (a) are wholly or largely technical in nature, (b) flimsy in substance, and (c) for purposes unconnected with public benefit and wholly concerned with private gain”, it would have been especially inappropriate to expend limited court resources on a lengthy analysis of Dunnes’ contrived planning-related contentions. Part III Sparingly Exercised Jurisdiction 73. “2. The jurisdiction to certify such a case must be exercised sparingly.” 74. The court notes the caution that is required of it in an application such as that now presenting. Part IV Law in a State of Uncertainty? 75. “3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases.” 76. There is no doubt that the court has an inherent jurisdiction to dismiss proceedings as an abuse of process, either upon a preliminary application or after the full hearing of the action. Support for this proposition may be found the decision of the Court of Appeal of England and Wales in Lonrho plc v. Fayed (No. 5) [1993] 1 W. L. R 1489. Closer to home, and of greater import, the court notes the following observation of Kearns J. for the Supreme Court in S. M. v. Ireland [2007] 3 IR 283 , 291: “The court’s power to dismiss proceedings which constitute an abuse of process of the court is an inherent power of the court and it is, strictly speaking, correct to say that there is no time limit within which the abuse of process must be raised or dealt with.” 77. A court undoubtedly has jurisdiction to dismiss proceedings based on improper purpose on a preliminary application (see Quinn Group). It can do this without having heard, let alone considered and decided legal argument on the (supposed) substantive merits of a plaintiff’s case. Dunnes’ suggestion to the contrary, and it has so suggested, is, with respect, wrong. 78. It follows logically that if the court has jurisdiction to dismiss for improper purpose at a preliminary stage, then it must have jurisdiction to dismiss proceedings based on improper purpose after the full hearing, i.e. after it has heard argument on the (supposed) substantive merits but before it has ruled on them. In truth, the court would seem, if anything, better placed to form a definitive view on an applicant’s motives after it has considered all the pleadings and affidavit evidence and heard legal submissions from all sides. 79. The court does not perceive any uncertainty to arise as regards any of the foregoing. Part V Refusal of Leave 80. “4. Where leave is refused in an application for judicial review, i.e. in circumstances where substantial grounds have not been established a question may arise as to whether, logically, the same material can constitute a point of law of exceptional public importance such as to justify certification for an appeal….” 81. This issue does not present here. Part VI Point Arises from Decision of High Court? 82. “5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.” 83. The court has mentioned previously above the limited caveat to the above proposition offered by Clarke J. in Harding, whereby it cannot be that a party who might otherwise be entitled to a certificate enabling it to appeal to the Supreme Court (now the Court of Appeal) would be deprived of that entitlement due to the fact that a court had, by inadvertence, failed to deal with an issue which was properly argued. However, the present case is not one in which it is contended that the court (this Court), due to inadvertence, has failed to deal with a point which arose in the course of argument. So the above-quoted point from Glancré falls to be applied effectively as is. As mentioned in Section B above, although both points of law formulated by Dunnes as arising from the court’s judgment of last November are cleverly crafted in light of that judgment, the court does not consider that either point of law arises out of that judgment - which, in truth, involves but a mundane application of settled law. Part VII Exceptionality and Desirability are Cumulative Criteria 84. “6. The requirements regarding ‘exceptional public importance’ and ‘desirable in the public interest’ are cumulative requirements which although they may overlap, to some extent require separate consideration by the court”. 85. As Dunnes has fallen at the hurdle of exceptionality, the issue of desirability does not fall to be addressed. Part VIII Transcendent Nature Alone Insufficient 86. “7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word ‘exceptional’.” 87. The court has already considered and dismissed the contention that its decision involves one or more points of law of exceptional public importance. This being so, it is not strictly necessary that it consider whether those points raised would transcend this case; they have, as the court mentions above, fallen at the hurdle of exceptionality. However, on a related note the court does consider in Part XI below whether there would be any public interest in the proposed appeal. Part IX The Meaning of ‘Exceptional’ 88. “8. Normal statutory rules of construction apply which mean inter alia that ‘exceptional’ must be given its normal meaning.” 89. The court would reiterate the points made in Section B, Part 9. Part X Merely to Raise a Question of Law is Insufficient 90. “9. ‘Uncertainty’ cannot be ‘imputed’ to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.” 91. The court would reiterate the points made in Section B, Part4. Part XI Affirmative Public Benefit from Appeal Necessary 92. “10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.” 93. Insofar as identifying an “ affirmative public benefit ” is concerned, Dunnes effectively suggests that the court in its judgment of last November has opened the floodgates to a deluge of developers who will descend upon the law-courts seeking dismissal of proceedings on the basis of motive alone. In this regard, the court would reiterate the points it has made at Section B, Part 2, Item II, above. Suffice it here to note the following:(i) it is a bald assertion, no more;(ii) there has been no suggestion that the appeal would bring any environmental or planning benefit to the public; (iii) despite its being a decade and a half since the High Court offered, in Quinn Group, a virtually identical statement of principle to that offered by the court in its judgment of last November, no deluge of developers has yet to arrive at the courts;(iv) the court’s findings in its judgment of last November were highly dependent on the particular and unique facts presenting. SECTION D CONCLUSION 94. For the reasons identified above, the court declines to grant the certification sought; hence Dunnes is ineligible for the leave sought. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII