Developer’s case against eight Killiney residents struck out as ‘bound to fail’
Posted on 19th July 2022 at 22:30
Ms Justice Emily Egan said Atlas GP Ltd’s case alleging a breach of champerty and maintenance was ‘bound to fail’
A High Court judge has struck out as “bound to fail” a developer’s case against eight south County Dublin residents arising out of plans to build 255 homes in their area.
In her ruling on Tuesday, Ms Justice Emily Egan said she was “fully satisfied” the residents’ claim that the action was bound to fail must succeed and, thus, the court is compelled to strike it out.
Developer Atlas GP Ltd, a subsidiary of Pat Crean’s Marlet Property Group, brought the proceedings against all eight residents alleging the torts of the medieval doctrine of champerty and maintenance, which is aimed at preventing disinterested parties from involving themselves in litigation.
The development firm sought an injunction to restrain the residents from taking any further steps to pursue their separate judicial review challenge, which aims to quash planning permission granted to Atlas for a 255-unit development off Church Road in Killiney.
Atlas also wanted damages and a declaration that the planning challenge is being funded by third parties with no legitimate interest in the proceedings, contrary to law.
Atlas said it brought the proceedings after becoming aware last September of a leaflet by Watson Killiney Residents’ Association. It claims the flyer was widely circulated in the Killiney area to motivate third parties to fund the legal costs of the challenge against the grant of planning permission.
The eight deny that they were the authors of the notice.
Ms Justice Egan was ruling on a motion brought by the locals seeking to strike out the developer’s proceedings, which they had claimed amounted to an “abuse of process”.
Stephen Dodd SC, instructed by Eoin Brady of FP Logue solicitors, had also argued Atlas’s action was part of a Slapp (Strategic Litigation Against Public Participation) campaign. It, along with two other cases taken by Atlas against some or all of the eight, was intended to “interfere” with his clients’ judicial review proceedings, he said.
“So clear is it” that the action was bound to fail, the judge said, that it was unnecessary for her to consider the other grounds of challenge, which was that the proceedings had been brought for an “improper purpose” and that it, along with two other actions, amounted to a Slapp.
Ms Justice Egan said the old rules of maintenance and champerty must now be viewed in accordance with modern ideas of propriety and in recognition that access to justice is a constitutional fundamental, she said.
The laws were intended to prevent a third-party funder from unjustifiably intermeddling in proceedings it has no interest in, she said.
In this case, she said, it is “abundantly clear” from the flyer’s text that it was directed toward people who have a legitimate interest in the judicial review proceedings.
It is “extremely difficult” to conceive of any rational basis for contending the residents’ association, the residents it represents or people in the local area to whom the flyer was addressed do not have a legitimate interest in the proceedings, she added.
Ms Justice Egan also observed “some irony” to Atlas’s submissions to the effect that the court should exercise restraint in striking out, lest this infringes its right of access to the courts.
“The admitted purpose of these proceedings is, in part at least, to restrain the judicial review proceedings,” she said.
Not part of the judge’s ruling was another action taken by Atlas against all eight of the residents, which seeks damages and other orders over alleged defamation of the firm in the same leaflet.
It has a third case, against two of the eight, alleging a restrictive covenant of November 2000 prevents those two from challenging the planning.
The defendants in both of these actions are awaiting a hearing date for their motions to strike out the proceedings.
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